CASE 214: Appointing a Tutor

D. 26.7.1 pr.-1 (Ulpianus libro trigesimo quinto ad edictum)

(pr.) Gerere atque administrare tutelam extra ordinem tutor cogi solet.

(Ulpian in the thirty-fifth book on the Edict)

(pr.) It is common for a tutor to be compelled, extra ordinem, to take up and ad­minister a tutelage. (1) So if a tutor who knows that he has been appointed tutor fails to fulfill his duty, he does so at his own risk; for the deified Emperor Marcus Aurelius laid down the rule that a person who knows he has been appointed tutor and who within the prescribed time limit does not offer a legitimate excuse if he has one (for not performing) fails to fulfill his duty at his own risk.

1.      Extra Ordinem. When minor children became sui iuris through the death of their pater familias, they usually received a tutor through his will, and this was the preferred method. In the absence of such a testamentary appointment, “statutory tutores” (tutores legitimi) were named automatically through legisla­tive provisions; for freeborn Romans, the tutor was usually the child's nearest male agnate. If both these mechanisms failed, the only Roman fail-safe was to have a magistrate name a tutor. Over the centuries the Romans often changed the forum for doing this; Justinian, Inst. 1.20, has an overview. During the classical period of Roman law, tutores were appointed extra ordinem, “outside the usual judicial order” of the urban praetor's court: through consuls from the reign of Claudius (A.D.

2.      lang=EN-US style='font-weight:bold'>Demanding a Tutor. The request that a magistrate appoint a tutor normally came from the relatives of the minor, but it might also be made by family friends or foster parents (Modestinus, D. 26.6.2 pr.). Where no such request was forthcoming, a creditor could also ask for one (ibid. 3).

3.      A Public Duty. Members of the upper class were expected to serve when named. Paul (D. 4.5.5.2 and 7 pr.) describes tutelage as a public duty, some­what like being a magistrate or a senator or a iudex. Still, it is quite clear that many Romans tried to avoid tutelage by offering an acceptable excuse, and in time an elaborate repertory of excuses developed; see Frag. Vat. 123-247 and D. 27.1. Among the alleged excuses were that one was too old, too young, too physically weak (e.g., permanently deaf or mute; temporarily but acutely ill), too poor, too illiterate or ignorant, living too far away, and so on. Further, the incumbents of high offices were excused, as were persons already exercising three guardianships. Prior hostility between the parties also provided an ex­cuse. In late classical law it was even possible to escape a tutelage by naming someone who was better qualified (Frag. Vat. 157-167a).

4.      Neglect of Duty. How serious were the Romans about enforcing this “public duty”? Ulpian says that if a person whom a magistrate ordered to be a tutor knew of the nomination and failed to allege an excuse or exercise the tutelage, he did so “at his own risk” (suo periculo).

5.      Security. A tutor was frequently obliged to provide security (satisdatio) as a performance bond. Gaius (Inst. 1.199-200) explains the basic rules, which were designed “so that the estates of pupilli and those under the supervision of curatores not be exhausted or diminished.” But the requirement is not univer­sal; “tutores appointed in a will are not compelled to give security, since their honesty and dedication (fides et diligentia) have been approved by the testa­tor.” Does this exception offer adequate protection for the ward? Could some testators actually be deterred from naming a tutor for their children?

6.      Dangers. Guardians present a legal situation that we have encountered before in relation to dowry (Chapter II.C.5, D.2) and the peculium (Chapter III.B.3): one person has effective control of property in which another person has a strong and legally protected financial interest. The problem is how to get the controlling person (loosely, the “agent”) to manage the asset in such a way as to benefit the other person (loosely, the “principal”). There is no easy answer to this problem, but two broad dangers can be identified: that the “agent” will inappropriately exploit the property to his own advantage rather than to that of the “principal” (opportunism), and that the “agent” will be insufficiently at­tentive to the long-term economic exploitation of the property (shirking). In the following Cases we will look more closely at the Roman solutions to this problem as it concerns the tutor; but it is worth thinking about the broader is­sues now. The tutor was not directly compensated for his efforts on the ward's estate; does this leave him with inadequate incentive to perform diligently? What does Gaius (Inst. 1.200; cited in the previous paragraph) imply about the standard of conduct that tutores had to display? Are they liable if they are lacking in the “honesty and dedication” (fides et diligentia) that are postulated for the ideal testamentary tutor? That is, under what circumstances should a tutor forfeit his security?