CASE 223: Parting Lunatics and Prodigals from Their Property

Gaius, Institutiones 3.106

Furiosus nullum negotium gerere potest, quia non intellegit, quid agat.

D.

(pr.) Lege duodecim tabularum prodigo interdicitur bonorum suorum administra­tio, quod moribus quidem ab initio introductum est. sed solent hodie praetores vel praesides, si talem hominem invenerint, qui neque tempus neque finem expen­sarum habet, sed bona sua dilacerando et dissipando profundit, curatorem ei dare exemplo furiosi: et tamdiu erunt ambo in curatione, quamdiu vel furiosus sani­tatem vel ille sanos mores receperit: quod si evenerit, ipso iure desinunt esse in potestate curatorum. (1) Curatio autem eius, cui bonis interdicitur, filio negabatur permittenda: sed extat divi Pii rescriptum filio potius curationem permittendam in patre furioso, si tam probus sit.

(Gaius in the third book of his Institutes)

An insane person (furiosus) is incapable of performing any legal transaction be­cause he does not understand what he is doing.

(Ulpian in the first book on Sabinus)

(pr.) The Law of the Twelve Tables prohibits a prodigal (prodigus) from manag­ing his own property, a rule that, to be sure, was originally introduced by custom. These days, however, if praetors and governors come across persons who limit their expenses neither by time nor space but squander their property through wastefulness and extravagance, they make a practice of appointing a curator for them on the analogy of an insane person.

And both of these will remain under a curator, the insane person until he re­covers his senses, and the other (the prodigal) until he returns to sane behavior.

1.      Lack of Intent. As seen in Case 13 (Discussion) and Case 101, an insane per­son could not marry and could not, as pater familias, grant or withhold con­sent for a son- or daughter-in-power to marry, because he was not able to form the requisite intent. Is this the point Gaius is making in the first frag­ment? The Latin in this passage is gender inclusive: both for the insane and for prodigals, women as well as men are meant.

2.      Prodigals Too. Spendthrifts (prodigi) are persons whose reckless behavior with their own property endangers not only their economic position but that of their families. Though the restriction on prodigals is very old, Ulpian de­rives contemporary procedure for assigning guardians through analogy with the insane. Does this make logical sense to you? Is the behavior of prodigals analogous to that of the insane? Why not simply use one category of persons prone to socially unacceptable behavior? How do you suppose that praetors might “come across” persons in need of care?

3.   Exclusions. Could a lunatic

•      make a will? See Paul, D. 28.1.17 (no).

•      act as a witness? See Ulpian, D.

•       bear criminal liability? See Macer, D. 1.18.14 (no, except perhaps in lucid intervals).

Would any of these prohibitions apply to prodigals? (They could not make a will.)

4.      Lucid Intervals. What does the mention of the possibility of “lucid intervals” suggest about the Roman conception of madness?

5.      Operation of Law. The rights of the insane and prodigals are recovered by operation of law, that is, automatically, upon cessation of the condition or be­havior that led to the appointment of a curator. Does this make sense to you? Why not require approval by the praetor or governor first?

6.      Son as Curator. The Twelve Tables stipulated that curatores should be ap­pointed from among the civil-law heirs, though the praetor could choose someone else if the heirs were unsuitable (Gaius, D. 27.10.13). Why were sons, at least before the reign of Pius (A.D. 138-161), routinely excluded from this responsibility? Ulpian (D. 26.5.12.1) says that many earlier jurists, in­cluding Celsus, had held it unbecoming (indecorum) for a father to be man­aged by his own son. What does this mean and why should it matter? Why did Pius change the law, and do so only for the sons of the insane?