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.
+ Tutor Legitimus (appointed by operation of law)
. Legitima Tutela Agnatorum
Under the XII Tables, where there was no tutor testamentarius, tutelage would fall on the nearest agnates.
Example: Sempronius is father of Titius and Maevius (both above the age of puberty) and Brutus, aged 6. The death of Sempronius releases his sons from patria potestas. Sempronius does not nominate a tutor for Brutus in his will. Titius and Maevius would become the joint statutory tutors. The next agnates on whom the statutory tutorship would fall are the brothers of Sempronius.
Note: Justinian, by Novella 118, gave tutela to the next of kin whether cognatic or agnatic.
. Legitima Tutela Parentum
When a paterfamilias emancipated a descendant below the age of puberty he became its tutor.
. Legitima Tutela Patronorum
When a master manumitted a slave below the age of puberty he became its tutor.
+ Tutor Fiduciarius
This term had two meanings:
. Where a father died after emancipating a child below the age of puberty, the unemancipated brothers of the child became its fiduciary tutors.
. 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.
+ Tutor Dativus
In some cases a tutor might be appointed by decree, e.g. in default of other appointments, and where the child needed a tutor, any person might apply; the child's mother was under a duty to apply. Lex Atilia (c. 200 B.C.) gave the Praetor Urbanus and the plebeian Tribunes the power to appoint tutors in Rome in these circumstances. Lex Julia et Titia (31 B.C.) gave this power to provincial governors. Under Claudius, Consuls, and in post-classical times, governors of cities, were given the power of appointment.
Note: A temporary tutor might be appointed for a particular matter, e.g. a tutor praetorius, appointed specially to act for a pupillus involved in litigation with his tutor.
- Tasks and Functions of the Tutor
+ Administration of the ward's property (negotia gerere)
Where possible, the money belonging to the pupillus had to be invested so as to produce interest. (Justinian allowed the money to be hoarded, unless used for the maintenance of the pupillus). 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. By an oratio of Septimius Severus in A.D. 195, a transaction involving the sale of undeveloped building land and agricultural land belonging to the pupillus was forbidden; this was extended by Constantine to all valuable movables, unless authorised by will or a magistrate's decree. In these matters the tutor had to show maxima diligentia (the utmost care) and had to perform his duties as a bonus paterfamilias might have performed them.
+ Interposition of his authority (auctoritatem interponere)
Where the pupillus had intellectus only, the tutor could make good the lack of iudicium and thus make an incomplete transaction effective. This allowed a pupillus to make a contract in his own name. No liability could be incurred without the authority of a tutor. This auctoritas had to be given at the time of the act and by the tutor in person, not by his agent. Where a ward had become enriched from a contract concluded without his tutor's authority, he was liable, by a rescript of Antoninus Pius, in an actio utilis, to restore the amount of his enrichment. If the creditor of a pupillus, in ignorance of his lack of capacity, accepted payment and used the money, the debt was held to be extinguished.
+ Education of the ward
The tutor was bound, not to bring up the ward, but to provide for his education. He was bound to make an annual appearance in court so that a sum might be fixed for this purpose. The sum, paid out of the estate of the pupillus, was given to those who were bringing him up.
- Protection of the Pupillus
+ A tutor legitimus or dativus was obliged to take on oath to administer the property of the pupillus with care, and this oath was backed by security –satisdatio rem pupilli salvam fore. A magistrate who omitted to obtain this security was liable in damages. A tutor appointed by will was not obliged to give security.
+ Tutors were appointed by magistrates only after an inquiry as to their suitability; the magistrate was responsible in damages for an unsatisfactory nomination.
+ In the post-classical era, the tutor was obliged to make an inventory of the property before commencing his duties.
+ At the end of the tutorship an actio rationibus distrahendis ("for the taking apart of the accounts") could be brought against a tutor legitimus. Twofold damages could be claimed for the embezzlement of property belonging to the pupillus.
+ A tutor could be removed for actual or anticipated misconduct. An actio suspecti tutoris could be brought in a case of fraud or extreme negligence in carrying out the tutor's duties. Condemnation brought infamia.
+ An oratio of Septimius Severus forbade the sale of immovable property without authorisation by will or by a magistrate.
+ In the later Republic an actio tutelae could be brought for dolus (fraud) and culpa (negligence). An actio contraria tutelae allowed a tutor to recover legitimate expenses incurred in administering the property of the pupillus.
+ Constantine introduced a hypotheca over the tutor's property to secure any claim made by the pupillus.
Note: A tutor allowed to buy from his ward when the sale was of a part of the property which the tutor was not managing.
- Excusationes Tutorum (exceptions from tutorship)
Because of the obligatory nature of tutorship there arose a large number of exceptions from tutorship, e.g. Infirmity; old age (over 70); long distance of tutor's residence from the pupillus; the holding of other tutorships; poverty; illiteracy; military service; enmity between the tutor and the father of the pupillus; an appointment made from ill-will; absence on state business; holding a high public office (e.g. medicine); inequality of rank (e.g. a Senator was exempted from acting as a tutor, except to another Senator's children).
+ Note
. Marcus Aurelius gave the Praetor Tutelarius the right to decide whether a ground of excuse was valid.
. In the classical period a tutor dativus could, by potioris nominatio, ask to name a more appropriate person. This right disappeared under Justinian.
. Slaves, peregrines, those under 25, the deaf and dumb, monks and bishops, were not allowed to act as tutors. Women were also disqualified, but Justinian allowed a tutorship to widowed mothers who promised not remarry.
- Cessation of Tutelage
Tutelage came to an end in the following ways:
+ When the pupillus reached the age of puberty.
+ When the tutor or pupillus died.
+ When the tutor retired, having been discharged by a magistrate.
+ Where a tutor has been appointed until a certain time, or pending a condition, and the time expires or the condition is fulfilled.
+ Where a tutor has been removed because of suspected or actual misconduct, or hostility to the ward.
+ Where either party suffers capitis deminutio.
Examples:
. Marcus is tutor to Stichus. Stichus is given in adoption to Gaius. The tutorship of Marcus comes to an end.
. Veratius is tutor to Brutus and is captured by enemy forces and taken into captivity. The tutorship of Veratius thereby comes to an end.
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- Tutors and curators in Roman Law
+ Tutors and curators (I): Legal capacity
+ Tutors and curators (III): Tutela perpetua mulierum
+ Tutors and curators (IV): Cura
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Source:
Roman Law, L. B. Curzon, pages 50 - 54.
