CASE 216: Authorization
D. 26.8.9 pr.-1 (Gaius libro duodecimo ad edictum provinciale)
(pr.) Obligari ex omni contractu pupillus sine tutoris auctoritate non potest: adquirere autem sibi stipulando et per traditionem accipiendo etiam sine tutoris auctoritate potest: sed credendo obligare sibi non potest, quia sine tutoris auctoritate nihil alienare potest.
(1) Ex hoc autem, quod pupillus nullam rem sine tutoris auctoritate alienare potest, apparet nec manumittere eum sine tutoris auctoritate posse. hoc amplius licet tutoris auctoritate manumittat, debet e lege Aelia Sentia apud consilium causam probare.(Gaius in the twelfth book on the Provincial Edict)
(pr.) A ward (pupillus) cannot become obligated on any contract without a tutor’s authorization; however, he can acquire for himself through stipulation and by informal handover even without a tutor’sstyle='font-weight:bold'> authorization.
But he cannot make someone obligated to himself by a loan, since he is incapable of alienating (transferring title of) anything without a tutor’s authorization. (1) Further, from the fact that a pupillus cannot alienate anything without a tutor’s authorization derives the rule that he cannot manumit slaves without his tutor’s authorization. What is more, although with his tutor’s authorization he can manumit, the lex Aelia Sentia requires him to show cause before a judicial commission (consilium).
1. Giving and Receiving.
Compare the legal position of a pupillus with that of a child-in-power (Chapter III.B.1-2). The pupillus needs no authorization to acquire both property and obligations from third parties but without a tutor’s authorization cannot become obligated on a contract and cannot alienate property. A child-in-power acquires for his or her pater; but that aside, is the ward similarly positioned? Note that a pupillus, as a sui iuris person, would not have a peculium (contrast Chapter III.B.3).2. Manumission. Why does Gaius believe that it follows, from the inability of a pupillus to alienate property without authorization, that he or she also cannot manumit slaves? The lex Aelia Sentia (A.D. 4), which placed limits on nontes- tamentary manumission, established a minimum age for the manumissor of twenty years, which would obviously apply to all pupilli. Exceptions needed approval from a judicial commission composed of prominent members of the community (consilium). Why might the legislator have been uneasy about manumissions by young masters?
3. Presence and Authority. Gaius (D. 26.8.9.5 = Justinian, Inst. 1.21.2) states that the tutor must be present to authorize the transaction; authorization by letter is ineffective, as also ratification post factum. (See also Marcian, D. 41.1.11.) What is the reason for this requirement? If the tutor did not give the required authorization, the transaction by the pupillus is null, although the pupillus is required to surrender any enrichment that he or she receives (see Ulpian, D. 26.8.5 pr.-1). Justinian (Inst. 2.8.2) points out that a creditors position may therefore be quite risky.
D. 26.7.12.3 (Paulus libro trigesimo octavo ad edictum)
Cum tutor non rebus dumtaxat, sed etiam moribus pupilli praeponatur, imprimis mercedes praeceptoribus, non quas minimas poterit, sed pro facultate patrimonii, pro dignitate natalium constituet, alimenta servis libertisque, nonnumquam etiam exteris, si hoc pupillo expediet, praestabit, sollemnia munera parentibus cognatisque mittet.
sed non dabit dotem sorori alio patre natae, etiamsi aliter ea nubere non potuit: nam etsi honeste, ex liberalitate tamen fit, quae servanda arbitrio pupilli est.(Paul in the thirty-eighth book on the Edict)
Since a tutor is placed in charge of not only the property but also the character of the ward (pupillus), he will, to begin with, determine the wages of the teachers, not the lowest possible but consistent with the resources of the estate and the social rank (style='font-style:italic'>dignitas) of the child’s family. He will furnish maintenance for the slaves and freedmen, sometimes even for those outside (the household) if this will be advantageous for the pupillus; and he will send the traditional gifts to parents and (other) relatives.
All the same, he will not provide a dowry to a half sister (of the ward) born of a different father, even if otherwise she is unable to marry; for this act, although upright, is still an act of generosity, which is something that should be reserved for the discretion of the pupillus.
1. Tutorial Oversight. Unlike in modern law, the tutor is not a true custodian of a child (on custody, see Cases 49, 108-111). But because he controlled the child's resources, the tutor acquired great discretionary authority in determining the ward's day-to-day life. According to Paul, how broad is his authority? Although this Case suggests that the decision was his alone, Ulpian (D. 27.2.2-3) indicates that the praetor often played a decisive role in determining the amount that should be spent on maintenance, including the allocation for slaves and the amount for clothing and housing; and even in the case of very large estates, frugality is commended (ibid.
3.3). Is Paul saying that the tutor should actually select the ward's teachers himself?2. Limits to Generosity. Does the qualification “traditional” imply an upper or a lower limit on the cost of family gifts? Could you apply the same standard that is given for teachers' salaries? As to the dowry, why does this fall into a category within the ward's discretion? Could the tutor refuse to approve it? Could he provide a dowry for the ward's half sister by the same father, as the text seems to imply? Why is this so? On the familial duty to provide dowries, see Cases 32-33, 103. Ordinarily, a tutor is not allowed to make gifts from a ward's property; see Paul, D. 26.7.22, 46.7.
3. Educating Sisters. Is it a legitimate expense if a tutor pays for the education of the ward's full sister? See Julian, D. 27.2.4 (yes, if ordered to do so by a magistrate).