CASE 226: The Tutor's Authorization

Tituli ex Corpore Ulpiani 11.27

Tutoris auctoritas necessaria est mulieribus quidem in his rebus: si lege aut legitimo iudicio agant, si se obligent, si civile negotium gerant, si libertae suae permittant in contubernio alieni servi morari, si rem mancipii alienent.

(Excerpts from Ulpian’s Writings)

Women require the authorization of a tutor in these situations: if they bring suit by statute or in a statutory trial; if they obligate themselves; if they conduct a transaction in the ius civile; if they allow their freedwoman to remain in cohabi­tation with another person’s slave; if they alienate a res mancipi.

For minor wards (pupilli), the tutor’s authorization is additionally required also in the alienation of res nec mancipi.

1.      When Was a Tutor’s Authorization Required? Basically, the tutor’s authoriza­tion was required in two circumstances: conduct of most formal legal acts (including bringing certain lawsuits that require the use of ceremonial lan­guage but also ius civile transactions such as the mancipation of property and the execution of a will; see Case 228); and conduct of acts that obligated her, thus endangering the size of her estate. Is the rationale behind these two cir­cumstances the same? Women have considerably broader powers than do minor wards, in any case; without a tutor’s authorization they can alienate res nec mancipi (property except for certain types, especially land, slaves, and draft animals), receive payment of debts, engage in some litigation, and name a procurator to manage their property (see Gaius, Inst.

2.      Letting Your Freedwoman Sleep with Another Person’s Slave. Why is a tutor’s authorization required for this? Under a decree of the Senate of A.D. 52, severe penalties were assessed against free women who cohabited with the slaves of other persons. A freedwoman who, with the knowledge of her for­mer owner and patron, cohabited with another's slave was made the slave of the person who informed on her (Paul, Sent. 2.21a.6). The patron who con­sented to such a union therefore risked losing rights of succession to the freedwoman.