GUARDIANSHIP

Potestas was not the only restriction to which a free person might be subject. In addition to potestas, certain categories of person were also subject to a guardian (tutor) or supervisor (curator).

Persons subject to guardianship (tutela)

Various categories of person were considered to be in need of protection, although the original purpose of guardianship was to protect the rights of those standing to inherit from a ward. Thus, a person who was insane or a spendthrift might have a guardian appointed. The most important cases were guardianship of sui iuris children under the age of puberty and guardianship of women. Plainly, a child under the age of puberty cannot be expected to manage his own affairs, even though he may be sui iuris. The special rules for the other important form of guardianship, the guardianship of women, are considered below.

The choice of guardian

In the case of guardianship of children, a guardian could be appointed in their father’s will. Failing this, there would be appointed a statutory guardian, who was the nearest agnate (relation in the male line) or, in the case of a manumitted slave or emancipated child, the former master or paterfamilias. The reason for this is that, on intestacy, it was the nearest agnate who was entitled to be heir. In the case of an emancipated son, the guardians were the other children of the paterfamilias who were still in potestas, this arising on the death of the paterfamilias. Failing these rules, a guardian could also be appointed by the praetor.

The guardian's functions

In the case of a child under the age of puberty, the guardian was respon­sible for the administration of the child’s estate and the authorisation of transactions entered into by the child. Consistent with the origin of guardi­anship as an institution to protect the interests of the heirs of the child, the guardian was not responsible for the care of the child’s person.

Guardianship of women

It has been noted that special rules applied in the case of females. A woman was subject to lifelong guardianship. Attempts were made by the jurists to justify this on the basis ofwomen’s weakness of mind. Gaius, however, points out that this is not convincing. In fact, the reason why women’s guardianship was lifelong was the same as the reason why guardianship arose in the first place — to protect the succession rights of the agnates. A boy’s guardianship ends with puberty, because he can then marry and produce children to be his heirs. At that point, those who would previously have been his heirs have no further interest in the matter. A woman’s children, however, are not her heirs according to the general law of succession. The reason for this is that they have no agnatic relationship to her. Thus, the interest of her agnates in her estate is lifelong. For this reason, a woman’s husband would not be her guardian, and a guardian could be appointed even for a married woman.

Guardianship of women was also special in having a restricted purpose. Where the guardian of a child was also responsible for the administration of his property, the guardian of a woman was restricted to giving consent to her transactions. This consent could often be compelled, and during the Empire women’s guardianship became almost devoid of content. Indeed, by a reform of Augustus, a woman who had had at least three children (four if a freedwoman) was released from guardianship.

Liability of a guardian

A guardian was liable for fraud or negligence in the conduct of his duties. Except in cases of appointment by will or by the praetor, where it would be assumed that consideration had been given to the guardian’s suitability, the guardian would normally need to provide security for such liability. An action could be brought for removal of an untrustworthy guardian, although this remedy was not available to the ward himself.

Supervision of minors (cura minorum)

While guardianship of a boy ended at puberty, such a child was still not fully capable of managing his own affairs. Accordingly, the lex Plaetoria, intro­duced around 200 bc, penalised fraud against those past puberty, up to an age at which they could be seen as capable of managing their own affairs, which was taken to be twenty-five. The praetors extended this protection by providing a defence to the enforcement of a contract disadvantageous to the minor, even in the absence of fraud. For this reason, the practice developed of requiring the appointment of a supervisor for such transactions, the purpose of the supervisor being to supply consent to transactions entered into by the ward. This had the effect of protecting third parties contracting with minors, and a supervisor could be appointed on an ad hoc or continu­ing basis.

Essential Facts

• The main element of a person’s legal status was the division between free persons and slaves. Slaves were the property of their masters, and could not themselves own any property. They might, however, be allowed a peculium, i.e. a fund of property they were allowed to treat as their own.

• The most distinctive feature of the Roman family was the authority over his descendants of the paterfamilias, i.e. the oldest male ascendant in the male line. Subject to a few exceptions, no one subject to this authority was able to own any property. Such a person might, however, be allowed a peculium in much the same way as a slave.

• The common form of marriage from the late Republic onwards was the free marriage, or marriage sine manu. In this form of marriage, the wife’s property rights were not affected and she remained subject to the authority of her paterfamilias if she had one. She did not become subject to the legal authority of her husband.

• Those not subject to the authority of a paterfamilias were subject to the supervision of a guardian (tutor) up to the age of puberty (for males) or for life (for females). Males up to the age of twenty- five, however, could have a curator appointed to supervise them in entering into legal transactions.

Essential Cases

Mackenzie v Mackenzie’s Trustees 1916 1 SLT 349: this case concerns one of the irregular forms of marriage recognised in Scots common law, the marriage by words of present consent. The irregular forms of marriage were ultimately derived, through canon law (see Chapter 11), from the Roman idea of marriage by consent. In this case, the court held that there was a valid marriage where a man had given a written acknowledgement of marriage to his servant. This was the case even though she continued to act as a servant, for the sake of public appearances. This form of marriage was abolished by the Marriage (Scotland) Act 1939.

X v Y 1921 1 SLT 79: this case concerned another of the common law irregular marriages, the marriage by future consent followed by intercourse. In this case, a man and woman were engaged and, during the engagement, had sexual intercourse. The court said that “where a girl hitherto pure and innocent has intercourse with a man to whom she is engaged to be married, the presumption is that the engagement to marry was relied upon in consenting to the intercourse. The law presumes that in such circumstances consent to intercourse is consent to immediate marriage.” This form of marriage was abolished by the Marriage (Scotland) Act 1939.

Gow v Lord Advocate 1993 SLT 275: this case concerned the irregular form of marriage known as marriage by cohabitation with habit and repute. The idea behind this form of marriage was that the parties impliedly consented by holding themselves out as married. In this case, the action failed because there was insufficient repute of marriage. This form of marriage was abolished by the Family Law (Scotland) Act 2006.

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