The Importance and Significance of Tutela Concept at Roman Law

This essay shall deal with the Roman Law concept of tutela, which shall be done by delving into the origins of tutela as part of the Law of Persons in the Institutes and highlighting the different kinds of tutela known to Roman Law, such as tutela testamentaria, tutela legitima, tutela fiduciaria, and tutela dativa. I shall also comment on the various duties and functions that the tutor had, as well as the tutelage of women. The concept of curatorship, which differs from tutela, shall also be discussed.

Introduction

Upon his rise to power in 527 A.D, Emperor Justinian sought to undergo a process of legal reform. To do this, he entrusted one of his most intelligent jurists, Tribonian, to codify what had occurred in the previous 1,000 years. The resulting document was the Corpus Juris Civilis. This document consisted of the Codex, which involved laws which were applicable to the Romans at the time; the Digest, which included different extracts of the work of different jurists; the Institutes, which were used as a legal textbook for students in their quest to become lawyers; and the Novellae Constitutiones Post Codicem, which was comprised of new laws issued by Justinian himself between 534 and 565 AD.

This essay shall deal with one of the classes of persons known to Roman Law, that some independent persons have a tutor or curator. This division of persons is found in Book One, Title XIII of the Institutes, that deals with the Law of Persons. The first division of persons is between free men and slaves, the second division of persons is between those that have independent status and those that have dependant status. This essay shall focus on the third division of persons, that some persons sui juris have a tutor or curator, while others don’t. In the Institutes, Tutela is defined by Servius as ‘a right and power exercised over a free person who on account of tender years cannot take care of himself, given and allowed by civil law’. Roman law allows for a parent to appoint a tutor in his will for those children in his power, both sons and daughters, who have not yet reached puberty. However, grandchildren cannot have a tutor given to them by the same persons will, because the persons death leaves them in the power of their father. Children born after or before the will was made may have a tutor, on the condition that if they were born in the testator’s lifetime, they would be family heirs and in his power. Lastly, if a father appoints a tutor for his emancipated son, it would need to be approved by the Governor.

Tutela is also explained in Book Twenty-six of the Digest. Here, different jurists, mainly Gaius, Paul and Ulpian, explain and comment on everything of value about tutelages that was found in earlier Roman law. Paul describes how a tutor is to act as a protector and defender. Ulpian describes how when one becomes a lunatic and is already in possession of a tutor, they are not taken into care because of their lunacy. More about the different types of tutors and their duties and functions will be discussed in further detail throughout this essay.

The Different Kinds of Tutela

Whilst many jurists differed in the classification of the different kinds of tutela, we can still distinguish several forms of tutela. The most common division is that of the tutela of impuberes, minors who were under a tutor and known as the pupillus or the pupilla; and the tutela of women, who for whatever reason were sui juris, therefore not under the control of a paterfamilias. The four main types of tutela are tutela testamentaria, tutela legitima, tutela fiduciaria, and tutela dativa. 

Tutela testamentaria, as described in the Institutes, is a tutor who is appointed by name in the will of the paterfamilias for his descendants who are below the age of puberty and who would become sui juris upon his death. However, this did not apply to grandsons unless their father was dead or emancipated. Tutelage commenced as soon as the will took effect. The nominated tutor could refuse, however, after Claudius, he had to apply for exemption only on specified grounds. If no guardian was appointed by testament or if the guardian was excused, tutela legitima would be considered. In the Digest, Ulpian states that ‘we ought to accept as tutors appointed by will even those who are named in codicils confirmed by the will. 1. But we must accept as appointed by will only those who have been lawfully appointed’. The jurists also state that a tutor can only be appointed for the individual, and not to serve any specified property or person.

The second type of tutela is tutela legitima, also known as statutory tutors. These types of tutors were appointed by the Law of the Twelve Tables to the nearest agnates when a testamentary tutor failed. This was because the person who had the benefit of succession also had the right of tutelage. This is referred to as legitima tutela agnatorum. Two other cases of statutory tutelage were legitima tutela patronorum, which occurred when a master became the tutor of a slave manumitted below the age of puberty, and legitima tutela parentum, which occurred when a paterfamilias emancipated his child under the age of puberty and become its tutor. Ulpian states that no one appoints statutory tutors, rather the Law of the Twelve Tables is what makes them tutors. However, he also believes that the praetor should decide whether the paterfamilias and his children should give security or not.

Another type of tutela is tutela fiduciaria. This term can be understood in two ways; where a father died after emancipating a child below the age of puberty, the unemancipated brothers of the child became its fiduciary tutors, or where a child below the age of puberty was emancipated and had not been re-mancipated to the father but was manumitted by a third party, that party became its fiduciary tutor. The first condition is explained by Gaius and is the only meaning given to tutela fiduciaria by Justinian, since the second condition was abolished by Justinian in the constitution of 531. The person however, cannot become a guardian until they become adults, which is a general rule applied to all kinds of guardianship.

The final type of tutela is tutela dativa. In some cases where all other forms fail, a tutor might be appointed by decree. Lex Atilia gave the Praetor Urbanus and the plebeian Tribunes the power to appoint tutors in Rome in these circumstances. Lex Julia et Titia gave this power to provincial governors. Under Claudius, Consuls, and in the post-classical times, governors of cities, were given the power of appointment. Since mothers had no potestas and therefore could not appoint tutors by will, she could leave the property and appoint a tutor to manage it. These tutors would need confirmation by the magistrate. This also applied to anyone who left property to an underage child.

Another form of tutela not mentioned in the Institutes is tutela impuberum, which applied to impubes who were not subject to patria potestas. A tutor possessed the same powers as those of a contemporary trustee over his ward and his ward's property. Where the ward lacked full legal capacity for legal acts, the tutor had the power to make good for the deficiency.  As in the case of a trustee, the exercise of tutela meant that the tutor could not charge for his services, could not enrich himself from his relationship with the ward, and had to make good any losses arising from his neglect or default.

Tasks and Functions of the Tutor

Tutela was a public office, therefore anyone duly appointed must serve unless disqualified or excused. A tutors tasks and function were determined by the degree of incapacity of the pupil, so the younger the ward the greater the authority of the tutor. A tutor mainly had two function, to interpose his authority and to administer the wards property. Though the tutor was appointed to the persona, he was not in classical or late law the custodian of the child. If there was any difficulty as to his care, the magistrate would decide, and was not necessarily bound by any directions in the will.

A tutor may interpose his authority in cases where the ward cannot perform any legal acts by himself since he is under the age of seven (infans), and therefore the tutor must act in his own name for the ward. The infans, for instance, cannot accept an inheritance, cannot transfer property, and cannot bind himself by a contract without the aid of the tutor. For the tutor to exercise his authority, this must be done in person and at the time of the act, it must be by oral declaration and not by letter or subsequent ratification. After the ward reaches the age of seven (pupillus), he is considered to have intellectus but not judgment, therefore the tutor may act with him and add his authority directly or to confirm the act of the pupillus.

The other main function of a tutor was the administration of the wards property, also referred to as negotia gerere. Where possible, the money belonging to the pupillus had to be invested so as to produce interest. The ward's debts had to be settled, perishable things had to be sold, and in the post-classical era, an inventory of the estate had to be made. In these matters the tutor had to show maxima diligentia and had to perform his duties as a bonus paterfamilias might have performed them. The first step in the actual administration was to make an inventory of the estate, unless under Justinian he had been expressly released from this obligation by the testator. The degree of care which a tutor must show in his administration seems to have varied historically. Here it is probable that the liability was originally only for dolus, a restriction consistent with the original conception of tutela. A disadvantage of this function was that everything was done in the tutors name, meaning that it bound him and not the ward.

Apart from the main functions, the tutor was also responsible for the education of the ward. He was bound to make an annual appearance in court so that a sum might be fixed for this purpose. This sum, which was paid out of the estate of the pupillus, was given to those who were bringing him up. The tutor was also trusted with the protection of the pupillus. A tutor legitimus or dativa was obliged to take an oath to administer the property of the pupillus with care, and this oath was backed by security. A tutor appointed by will was not obliged to give security. 

Roman law provided for the protection of the ward against misconduct and maladministration of the guardian. Tutelage came to an end when a tutor had been removed because of suspected or actual misconduct, or hostility to the ward; when the pupillus reached the age of puberty; when the tutor or pupillus died; when the tutor retired and was discharged by a magistrate; where a tutor had been appointed until a certain time, or pending a condition, and the time expired or the condition was fulfilled; and where either party suffered a capitis deminutio.

The Perpetual Tutelage of Women

Women, even in the classical period, did not possess full legal capacity. A woman who was sui juris was, therefore, under tutela perpetua mulierum, as contrasted with the temporary tutelage of the impubes. Gaius, during the early Empire, stated that ‘whatever their age and notwithstanding their marriage, if they were females, according to our ancestors, even women who have reached their majority, on account of their levity of disposition, require to be kept in tutela’. The reason this tutelage was mainly to keep the property within the family. The tutelage of women was either of her agnates or her husband.

The function of the tutor was confined to auctoritatem interponere. This function was exercised when the woman wished to contract a legal obligation or to sell a res mancipi. In classical times the Praetor would compel an unwilling tutor to give auctoritas in an appropriate case. A woman under tutelage could often choose her tutor, and was allowed to change her tutor by an action based on in jure cessio. Tutela perpetua was modified before Justinian, under whom it was applied only to women under the age of puberty. Leges Julia et Papia Poppaea gave the jus liberorum to a free born woman with three children and to a freedwoman with four children. They were also freed from the requirement of tutela. The appointment of a women’s tutor was done in the same way as that of tutela impuberum, either by will of the person who has power over her, by law, or by a magistrate.

Curatorship

Cura arose with the realisation that a child who had reached puberty was still too young to administer its affairs. The function of the curator was primarily to administer the property of the minor, therefore having no control over the person of the minor. This applied to persons between the ages of fourteen and twenty-five. The curator was expected do give his approval to transactions which the minor wished to undertake. It originated from a lex plaetoria, which allowed minor to take criminal action against the person injuring them. 

Curators cannot be appointed by will, but have to be appointed by the same magistrates who appoint guardians. Originally a curator was appointed to act in single transactions on the application of the minor. Later, magistrates appointed a curator on an application from any person who wished to complete a transaction with the minor. The curator was not as powerful as the tutor, since the person under curatorship could legally act without his consent, unless he was insane or mentally unstable. Other types of curatorship include Cura Prodigi and Cura Furiosi. Cura Prodigi was when a curator was appointed for a spendthrift and would be responsible for managing the property. Cura Furiosi was when under the Law of the Twelve Tables the agnates and the Gentiles had the power of cura over the furiosus (lunatic). The curator had the power of administration over his property and was obliged to take care of him. A curatorship came to an end when the minor reached the age of twenty-five, or by 'venia aetatis' or by misconduct of the curator resulting in his removal.

Conclusion

In the course of its history, tutela has undergone many changes. It began with the patria potestas looking ahead and planning for the protection of his family’s property after his death. The concept of protection of the person came later and was not given much importance until the rise of tutela dativa. The tutor had many powers that were based on trust, however limited by legislation under the Empire.

Modern legal systems that have adopted Roman Law as their basis, such as the French and Maltese legal systems, have replicated features of tutela and cura. In French law, for example, the tutor cared for the person of the ward and was his legal representative, acting in a way as the modern day lawyer. In English law, the guardian may act as a guardian for the person or for the estate, or both. This shows how tutela under Roman Law transcended from Rome to the rest of Europe. 

Bibliography

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