CASE 219: Liability for Alienating Property
D. 26.7.12.1. (Paulus libro trigesimo octavo ad edictum)
Quae bona fide a tutore gesta sunt, rata habentur etiam ex rescriptis Traiani et Hadriani: et ideo pupillus rem a tutore legitime distractam vindicare non potest: nam et inutile est pupillis, si administratio eorum non servatur, nemine scilicet emente.
nec interest, tutor solvendo fuerit nec ne, cum, si bona fide res gesta sit, servanda sit, si mala fide, alienatio non valet.(Paul in the thirty-eighth book on the Edict)
What a tutor has done in good faith is deemed valid, a point also supported by rescripts of Trajan and Hadrian. And for this reason a pupillus cannot claim title to something that was lawfully alienated by the tutor. For it is also disadvantageous to pupilli if the management of their property is not confirmed, because, obviously, no one would buy (from them). Nor does it matter whether the tutor was solvent or not, since if the act was done in good faith, it must be upheld; (and) if in bad faith, the alienation is invalid.
1. Alienating Property. This Case raises concerns about which, as we have seen in earlier chapters, the Romans were very sensitive; see, for example, Cases 72 and 132. By the late classical period, a tutor’s powers were severely restricted in relation to rural or suburban land belonging to his ward; a law of Septimius Severus (A.D. 195) prevented him from alienating such land or using it as security for a debt except in special circumstances (Ulpian, D. 27.9.1.2, quoting the law). Probably in the same law, however, a tutor was specifically obligated to dispose of unproductive movables, houses, and nonagricultural slaves (C.
5.37.22 pr.; Constantine, A.D. 326). This law may simply enact preexisting custom. Even before the law, how free was the tutor in managing the ward's property? Does it seem excessive to invalidate a transfer of title if it can be shown, after the fact, that a tutor was acting in bad faith?2. Good Faith versus Bad. Paul points out that permitting recovery of property where the tutor has acted in good faith would prejudice the interests of pupilli as a class, since it would create uncertainty and scare off potential buyers. Why would rescission for bad faith not already have this effect? Does Paul's scenario permit invalidation if a tutor is merely negligent? Would negligence count as “bad faith”? Can you see why the jurists might be reluctant to impose liability for negligence in the case of positive acts such as the sale of a ward's property?
3. The Insolvent Tutor. What is Paul's point concerning the tutor’s possible insolvency? Is he suggesting that the ward wanted to recover the alienated object because he feared that the tutor was judgment-proof in an action on tutelage? In any event, in the wake of this ruling, how will the ward structure his lawsuit, especially if the tutor is insolvent?