CASE 215: The Tutor as Owner
D. 26.7.27 (Paulus libro septimo ad Plautium)
Tutor, qui tutelam gerit, quantum ad providentiam pupillarem domini loco haberi debet.
D.
41.4.7.3 (lulianus libro quadragensimo quarto Digestorum)Si tutor rem pupilli subripuerit et vendiderit, usucapio non contingit, priusquam res in potestatem pupilli redeat: nam tutor in re pupilli tunc domini loco habetur, cum tutelam administrat, non cum pupillum spoliat.
size=1 color=black face="Book Antiqua">(Paul in the seventh book on Plautius)
A tutor, who manages a tutelage, should be deemed the owner (of the ward’s estate) insofar as he cares for the interests of the ward (pupillus).
(Julian in the forty-fourth book of his Digests)
If a tutor appropriates and sells the ward’s property, usucapion does not take place until it returns to the ward’s control. For with regard to the ward’s property, a tutor is deemed the owner when he administers the tutelage, not when he robs the ward.
1. Power and Care. How is the tutor’s authority qualified by the phrase “insofar as he cares for the interests of the ward”? Is Paul interested in the tutor’s intentions or in the results he achieves? Does he mean that the tutor is the actual owner of the property or that he is only so for some purposes, in a technical sense?
2. Misappropriation of a Ward’s Property. Usucapion is a process whereby a person who takes possession of property in the good-faith belief that he or she is becoming owner can become owner through the passage of time.
In Roman law, this process has rather severe limits, however. One limit, imposed by an early statute, is that stolen property cannot be usucapted until it returns into the control of the property's owner (Paul, D. 41.3.4.6: the lex Atinia). How does Julian's ruling illustrate the limits of the “ownership” exercised by a tutor? Suppose that a third party stole the property; would it return “to the ward's control” if the tutor received it back from the thief? See Julian, D. 47.2.57.4 (yes, “since the tutor is deemed the owner”); is this consistent with the ruling in this Case?3. Is the Tutor a Thief? Does this Case indicate that a tutor who misappropriates a ward's property is also guilty of stealing it? Tryphoninus (D. 26.7.55.1) says no, since “tutores, because of the supervision that they undertake, are held less to handle it against the owner's will than to betray a trust.” But Ulpian (D. 47.2.33) thinks differently, reasoning that the tutor has no power to pillage the ward's property. Which is the better legal position? Which is more likely to deter the tutor from opportunistic behavior? Note that, in case of misappropriation, the ward can also sue the tutor by the action on tutelage.