CASE 220: Making Whole: Restitutio in Integrum
D. 4.4.1 (Ulpianus libro undecimo ad edictum)
(pr.) Hoc edictum praetor naturalem aequitatem secutus proposuit, quo tutelam minorum suscepit.
nam cum inter omnes constet fragile esse et infirmum huius- modi aetatium consilium et multis captionibus suppositum, multorum insidiis expositum: auxilium eis praetor hoc edicto pollicitus est et adversus captiones opitulationem. (1) Praetor edicit: “Quod cum minore quam viginti quinque annis natu gestum esse dicetur, uti quaeque res erit, animadvertam.”(2) Apparet minoribus annis viginti quinque eum opem polliceri: nam post hoc tempus compleri virilem vigorem constat. (3) Et ideo hodie in hanc usque aetatem adulescentes curatorum auxilio reguntur, nec ante rei suae administratio eis committi debebit, quamvis bene rem suam gerentibus.(Ulpian in the eleventh book on the Edict)
(pr.) In accord with natural fairness, the praetor published this edict whereby he undertook to protect minors (persons under twenty-five years of age). For since everyone agrees that judgment, at this age above all, is delicate and weak, exposed to numerous deceptions and vulnerable to the treachery of many, the Praetor has in this edict promised such persons aid and assistance against deceit.
(1) The praetor states in his Edict: “When, in the future, some business is said to have been conducted with a person less than twenty-five years of age, I will examine the situation.” (2) It is clear that he offers help to those less than twenty-five years old. For after this time, it is agreed that full male adulthood is reached.
(3) And for this reason, young adults are today guided by the assistance of curatores up to this age limit. Prior to this age, management of their own property ought not to be entrusted to them, even those who handle their own property well.
1. Restoration to the Status Quo Ante. This Case describes the principal remedy that was available to persons who, even if they were in principle capable of “handl[ing] their own property well,” were still minors (minores), regarded as too young to exercise mature judgment, especially in their business transactions. The Edicts wording is oblique (“I will examine”), but what the praetor is in fact promising is that if, after investigation, he believes that a transaction has adversely affected a minor, he will undo the transaction and order the minor restored “to wholeness” (in integrum). Though his open-ended wording is wide enough to include all minors, even those still in tutelage or under a fathers power, the praetor sought mainly to protect sui iuris males between the age of legal majority (Case 6; about fourteen) and twenty-five. What indications are there in the Case that young adult males were in fact the praetors chief concern?
2. When to Intervene? According to Ulpian, the praetor “promised... aid and assistance against deceit.” Does this mean that the minor must actually be the victim of deceptive conduct? Consider the following situations:
• The transaction results in neither loss nor gain to the minor. See Ulpian, D. 4.4.7.6 (restitution is still possible). Would this be true if the minor profited?
• The minor sells his property at a “considerable loss.” See Ulpian, D. 4.4.49: restitution is possible, “even if there is no collusion”.
This is true also if the minor purchases property at what turns out to be an excessive price (Gaius, D. 4.4.27.1).• In an auction, the minor sells property to the highest bidder, but subsequently a still higher bidder emerges. See Ulpian, D. 4.4.7.8: “Praetors daily restore them by reopening the bidding.”
• The minor without cause grants a formal release from a debt that is owed to him. See Gaius, D. 4.4.27.2 (restitution available).
• The minor accepts an inheritance, which shortly thereafter becomes a financial loss as a result of an act of God. See Ulpian, D. 4.4.11.4-5 (controversy).
• The minor enters a transaction with fraudulent intent. See Ulpian, D. 4.4.9.2 (no restitution); compare Paul, Sent. 1.9.1.
What do these examples suggest about the praetors aims in granting restitutio?
3. Unintended Consequences. The jurists occasionally express concern that if restitutio is easily available, no one will do business with minors. For example, as to reopening auction bidding, Ulpian (D. 4.4.7.8) observes that intervention “should be cautious; otherwise, no one will enter upon purchase of a ward's property even if it is sold in good faith.” Similarly, Paul insists that relief be given only in cases of manifest fraud on the part of others or extreme carelessness on the part of the young adult (D. 4.4.24.1). See also Ulpian, D. 4.4.44. Do such reservations make sense? Are they consistent with the case law surveyed in the previous paragraph?
4. Natural Fairness.
What do you suppose Ulpian means by “natural fairness” (naturalis aequitas) as the praetors motive for creating restitutio in integrum? Is this motive related to what “everyone agrees”? Is such agreement persuasive, either in the sense that young persons' judgment tends “naturally” to be weak or in the sense that many, even most, cultures tend to grant special protection of this kind to young adults? How does our own society evaluate the capacity for sound judgment of ten-year-olds? Twenty-year-olds? Twenty-four-year- olds? Is it fair to suggest that Roman law moved from setting adulthood too early to setting it too late?5. Restitutio and the Curator. How does Ulpian link restitutio to the appointment of a curator for minors? A curator is plainly supposed to assist a minor with good advice; does he also provide a measure of cover for the minors creditors?