CASE 221: The Appointment of a Curator
lustinianus, Institutiones 1.23 pr.-2
(pr.) Masculi puberes et feminae viripotentes usque ad vicesimum quintum annum completum curatores accipiunt: qui, licet puberes sint, adhuc tamen huius aetatis sunt, ut negotia sua tueri non possint.
(1) Dantur autem curatores ab isdem magistratibus a quibus et tutores. sed curator testamento non datur, sed datus confirmatur decreto praetoris vel praesidis. (2) Item inviti adulescentes curatores non accipiunt praeterquam in litem: curator enim et ad certam causam dari potest.(Justinian in the first book of his Institutes)
(pr.) Males over puberty and females capable of bearing children have curatores until the end of their twenty-fifth year. Although they are over puberty, they are still of such an age that they cannot safeguard their affairs. (1) Curatores are given by the same magistrates as are tutores. A curator is not appointed by will, but one who is appointed is confirmed by decree of the praetor or governor. (2) Again, unwilling youths do not have curatores except for litigating, for a curator can also be given for a specific purpose.
1. A Little History. Justinian stands at the end of a long development in this area. By the late third century B.C., Romans already recognized that puberty was too early to mark the transition into full adulthood. About 200 B.C., the lex Laetoria established a quasi-criminal penalty for those who (apparently deliberately) had cheated persons younger than twenty-five years of age. By the classical period this action was gone, but there survived a praetorian defense that the minor could use if sued over an unfavorable contract. The praetor then went on to provide a generalized procedure for restitutio; and this procedure led, in turn, to the creation of curatores for particular transactions, especially lawsuits.
At some point in his reign (A.D. 161-180), Marcus Aurelius is said to have established that “all adults” receive curatores (Historia Augusta, Marcus, 10.12: omnes adulti); this source is clearly inaccurate, but probably the process for appointing curatores was regularized at this date, so that young adults could now have a curator continuously from the end of tutelage (see Callistratus, D. 26.7.33.1). Thereafter, in the postclassical period, there is a tendency to assimilate curatores to tutores. Still, even in Justinian’s day, the two survive as distinct institutions, above all in that having a curator continues to be largely voluntary.2. Appointment. As this Case indicates, curatores are appointed by magistrates; see also Gaius, Inst. 1.198. A rescript of Caracalla (C. 5.31.1; A.D. 214) shows that the minor normally requested a curator, but that if the minor was recalcitrant, someone who wished to sue him or her could also ask that a curator be appointed; see also Alexander Severus, C. 5.31.6 (A.D. 224).
3. Function. The curator did not authorize transactions but merely consented to them; nor did his agreement automatically validate a transaction. See, for example, Alexander Severus, C. 2.24.2 (A.D. 222-235): the presence of curatores does not preclude later restitution. So what did the curator do?