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.
A woman under tutelage could often choose her tutor, and was allowed to change her tutor by an action based on in iure cessio.
Tutela perpetua was modified before Justinian, under whom it was applied only to women under the age of puberty. In A.D. 9 Leges Julia et Papia Poppaea gave the ius liberorum to a freeborn woman with three children and to a freedwoman with four children. They were also freed from the requirement of tutela. Claudius abolished the tutorship of agnates for women of full age. In A.D. 410 Theodosius granted ius liberorum to all women.
- Types of tutor
+ Tutor Testamentarius
A testator could allow the woman to choose her tutor (tutor optivus). At one time the practice existed of leaving the tutor's name in a will as a blank and allowing the woman to insert a name.
+ Tutor Legitimus
As in the case of tutela impuberum, the tutelage fell upon the woman's nearest agnates.
+ Tutor Dativus
As in the case of tutela impuberum.
Note: Tutors were not generally allowed to marry wards. There was an exception if they had been betrothed before the tutor had taken office, or if the ward was 25, or if the Emperor had given his permission.
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- Tutors and curators in Roman Law
+ Tutors and curators (I): Legal capacity
+ Tutors and curators (II): Tutela Impuberum
+ Tutors and curators (IV): Cura
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Source:
Roman Law, L. B. Curzon, pages 54 - 55.
