Tutors and curators (III): Tutela perpetua mulierum

Women, even in the classical period, did not posses full legal capacity. A woman who was sui iuris was, therefore, under tutela perpetua mulierum (perpetual tutelage of women), as contrasted with the temporary tutelage of the impubes.

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 res mancipi. In classical times the Praetor would compel an unwilling tutor to give auctoritas in an appropriate case.

Tutors and curators (II): Tutela Impuberum

Tutela Impuberum (tutelage of young persons under puberty) applied to impubes who were not subject to patria potestas. A tutor (tueri = to protect) possessed powers analogous to those of a contemporary trustee over his ward and the ward's property. Where the ward (pupillus) lacked full capacity for legal acts, the tutor had the power (and sometimes the responsability) to make good 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. Because tutela was a publicum munus (public duty) it was obligatory on those nominated.

- Types of tutor

+ Tutor Testamentarius (appointed by name in the will of a paterfamilias)

This tutor would exercise tutelage over sons who were in potestas and under the age of puberty and who would become sui iuris on the death of the paterfamilias. Tutelage commenced as soon as the will took effect. Until the time of Claudius he could apply for exemption only on specified grounds.

Tutors and curators (I): Legal capacity

- Of Children

The stages in a child's life were considered under Roman Law to be as follows:

+ Infantia (infancy)

The child is unable to speak properly and, hence, is lacking in intellectus (intelligence) and judicium (powers of judgment). Children at this stage were considered incapable of possessing legal capacity.

+ Infantiae Proximus (next to infancy)

The child, at this stage was able to speak, but was lacking in intellectus and judicium. At the time of the later Empire, intellectus was presumed to exist at seven years of age, at which infantia ceased.

+ Pubertati Proximus (next to puberty)

The child lacked judicium, but could perform transactions which bound another party, although he was unable to bind himself without auctoritas tutoris (the authority of his tutor).

+ Pubertas (puberty): 14 (male), or 12 (female)

At this age full legal capacity was assumed.

Note: The jurists, prior to Justinian, had differed as to the test for determining the puberty of a male. The Proculians, for example, had suggested the age of 14; the Sabinians had thought that age should be determined solely by physical capacity (habitu corporis).

- Of Women

Roman Law did not grant women equality with men. Women were not allowed to participate in public life and could not hold public office. They were not allowed to adopt and, in earlier times and in the classical period, they could not enter formal transactions without a tutor's authority.

Marriage (IX): Children

In general, the children of a legal marriage followed the status possessed by their father at the time of their conception.

Children who were born out of civil wedlock followed the status of the mother at the time of conception.