CASE 218: Pitfalls of Tutelage
D. 26.7.7 pr., 2-3 (Ulpianus libro trigesimo quinto ad edictum)
(pr.) Tutor, qui repertorium non fecit, quod vulgo inventarium appellatur, dolo fecisse videtur, nisi forte aliqua necessaria et iustissima causa allegari possit, cur id factum non sit.
si quis igitur dolo inventarium non fecerit, in ea condicione est, ut teneatur in id quod pupilli interest, quod ex iureiurando in litem aestimatur. nihil itaque gerere ante inventarium factum eum oportet, nisi id quod dilationem nec modicam exspectare possit.... (2) Competet adversus tutores tutelae actio, si male contraxerint, hoc est si praedia comparaverint non idonea per sordes aut gratiam. quid ergo si neque sordide neque gratiose, sed non bonam condicionem elegerint? recte quis dixerit solam latam neglegentiam eos praestare in hac parte debere. (3) Si post depositionem pecuniae comparare praedia tutores neglexerunt, incipient in usuras conveniri: quamquam enim a praetore cogi eos oportet ad comparandum, tamen, si cessent, etiam usuris plectendi sunt tarditatis gratia, nisi si per eos factum non est quo minus compararent.(Ulpian in the thirty-fifth book on the Edict)
(pr.) If a tutor did not make the list that is commonly termed an inventory, he is held to have acted with deceit (dolus), unless, as it happens, some necessary and very suitable reason can be set forth as to why this has not been done. If therefore through dolus someone has not made an inventory, he is in a position where he is liable for the amount of loss suffered by the pupillus, which is reckoned through an oath as to the value at stake. So he (a tutor) ought not to take any action (regarding the tutelage) before the inventory is complete, except one that can tolerate no delay, not even a minor one..........................................
size=1 color=black face="Book Antiqua">(2) Tutores are liable under the action on tutelage (actio tutelae) if they made a bad contract; for example, if through greed or favor (to another) they purchased properties that are unsuitable. But what if they acted not out of greed or favor but (simply) made a bad choice? It will be correctly claimed that in this situation they ought to be responsible only for gross negligence (neglegentia lata).
(3) If, after money was deposited (with them), tutores neglected to buy property, they begin to be liable for interest (on the money). For although the praetor should compel them to buy, still, if they fail to do so, they should also be punished by (paying) interest because of their indolence, unless it was not their fault that they did not buy.
1. The Inventory. Postclassical sources also stress the necessity of taking an inventory at once after being named tutor: C. 5.37.24 (= C.Th. 3.30.6; Arcadius and Honorius, A.D. 396), 5.51.13.2 (Justinian, A.D. 530). What is the purpose of this inventory, and who is protected? What “loss” is feared? Should the failure to carry out an inventory necessarily be construed as deliberate misconduct? What might serve as an acceptable excuse not to conduct one?
2. Administration. In sections 2 and 3, this Case provides a good introduction to the usual activities of a tutor. These two sections both deal with transactions in land, the return from which was the major source of income for upper-class Romans. The tutor is expected to invest the ward's money promptly and in a productive manner.
Failure to invest can make the tutor liable for interest on the money (as a substitute for the lost investment); imprudent investment can lead to liability for the ward's losses. Does Ulpian give adequate guidance as to how the tutor should proceed? The tutor was also required, for instance, to collect the ward's debts; see Paul, D. 26.7.15, noting that the tutor becomes liable for the loss if he fails to sue debtors in a timely fashion and a debtor becomes less able to pay. Paul also requires investment of cash within six months. Is a tutor encouraged to make only very cautious investments? If not, how much risk would be legally tolerable?3. Degree of Care. The jurists vary in establishing the standard of conduct for a tutor. The absolute minimum standard is always dolus, that the tutor not deliberately harm the ward's estate. Very closely connected with this standard is the view, expressed in section 2, that the tutor be also liable for “gross negligence” (neglegentia lata or culpa lata), defined as “not understanding what everyone understands” (Ulpian, D. 50.16.213.2). But beginning in the second century A.D. the jurists often impose even higher standards: a level of care at least equal to that the tutor displays toward his own property (Celsus, D. 16.3.32; Ulpian, D. 27.3.1 pr.), or simply “fault” (culpa), failure to observe the standards of a careful Roman (Modestinus, Coll. 10.2.3; Ulpian, D. 26.7.10). Should the standard vary according to the situation? For instance, what standard underlies the discussion in section 3 of this Case? Papinian (D. 26.7.39.2-3, 7, 11-16) discusses a number of instances in which a tutor is held liable for ordinary fault; but most or all of these concern omissions, not positive acts that turned out to be misguided. Do you see why it may be appropriate to use a more lenient standard for some acts? In section 2, what if the tutor makes a choice that is honest but wrong? Suppose he buys property advertised as prime beachfront that turns out to be under water? Or makes a wrong guess about soil quality, access to public roads, or development trends? Who should bear the resulting loss: the tutor or the ward?
4. Greed.
It is easy to see why favor (gratia) might count as dolus if, for instance, the tutor colluded with a seller who wanted to unload some undesirable properties at the expense of the pupillus. But why should greed count as such? Is this a willful refusal to manage the ward's estate properly? Is an objective standard involved, one not tied to the tutor’s personal avarice?5. Suits against the Tutor. The most general and flexible remedy was to sue the tutor through an action on tutelage (actio tutelae), which amounted to a full settling of accounts between the tutor and ward. Where it was suspected that a tutor was guilty of malfeasance, there was also a criminal charge to that effect (accusatio suspecti tutoris); and, obviously, a misbehaving tutor also risked losing any security (see the Discussion on Case 214). On the other hand, the tutor could also countersue to receive compensation for legitimate expenses; see Ulpian, D. 27.4.1 pr.
6. Who Guards the Guardians? If an infants tutor misbehaves, can his mother sue to protect the child? Yes, says Ulpian (D. 26.10.1.7; or also another interested female, such as a grandmother, sister, or nurse); but they do not have to intervene, see Tryphoninus, D. 26.6.4.4.