CASE 224: A Worried Mother

D. 26.5.12.2 (Ulpianus libro tertio de Officio Proconsulis)

Divus Pius matris querellam de filiis prodigis admisit, ut curatorem accipiant, in haec verba: “non est novum quosdam, etsi mentis suae videbuntur ex sermonibus compotes esse, tamen sic tractare bona ad se pertinentia ut, nisi subveniatur is, de­ducantur in egestatem.

(Ulpian in the third book of his On the Duties of a Proconsul)

The deified Emperor Pius accepted the complaint of a woman (who sought) that her wastrel sons be assigned a curator, in the following words: “It is no novelty that certain persons, even if they seem of sound mind in their speech, neverthe­less manage the property at their disposal in such a manner that unless help is given to them, they will be reduced to poverty. Therefore, someone must be ap­pointed to guide them with advice. For it is fair that we take heed for those who, with respect to their property, bring things to an insane conclusion.”

1.      No Novelty? Some scholars think that this text marks a departure from pre­vious practice, since in earlier law prodigals were apparently not deprived of management of their property. Is this necessarily true? Wasn't this the role of a curator? Or does the fact that the mother’s request is heard mark this text as distinctive? Would she have an interest in her childrens property?

2.      Insanely Prodigal. Does Pius (reign: A.D. 138-161) appear to rely on a model of wasteful behavior based on insanity? Could his point about appearing to be of sound mind apply to a lunatic as well?

3.      Welfare of the Spendthrift. Julian (D. 27.10.7 pr.) notes that the care and concern of the curator should extend beyond the property to the health and well-being of the lunatic. Does this principle also apply to prodigals? Why or why not? At any rate, what is the emphasis in these texts: safeguarding prop­erty or maintaining people?