Sui Iuris Persons with Limited Capacity

Both slaves and those subject to a paterfamilias were alieni iuris, that is subject to the legal authority (potestas') of another. By contrast, those who were sui iuris were not subject to this kind of authority.

(1) Women

The jurist Papinian tells us that ‘in many points of our law the position of females is worse than that of males'.^[386] This was certainly true in public law, women being barred from holding any public office^[387] and being unable to vote. In private law, too, women were subject to a range of restrictions. In parenthood, as we shall see in Chapter 7,^[388] a mother could not have the same legal authority over her children that was held by their paterfamilias, who was usually their father. Again, until the procedure was abolished by Hadrian,^[389] a woman could not make a will without first going through coemptio, a kind of fictional self-sale,^[390] with the appar­ent purpose of terminating her relationship with family members who would otherwise have a claim on her property on her death.^[391]

Often these restrictions were justified by ‘the weakness of the sex',^[392] or on the idea that men had a responsibility to protect women.^[393] At the same time, though, the limitations imposed on women's capacity were less than in many legal systems, and not just in the ancient world. Even up to fairly modern times, women had restricted legal capacity. Moreover, there were changes over time. For example, while in early law marriage involved the wife passing into the potestas of her husband (or of his paterfamilias'), by the early Empire this form of marriage was almost obsolete.^[394] Again, while most women were required to have a guardian, or tutor, for life,^[395] in the second century AD Gaius is finding the traditional explanation implausible:

For that which is commonly accepted, that by weakness of mind many are deceived, and it is fair that they should be governed by the authority of tutors, seems more specious than true.

An alternative explanation for the rule is that it is intended to protect the wom­an’s property in the interests of those entitled to succeed on her intestacy.^{[397] [398]}

A restriction of particular interest is that imposed in AD 46 by a senatusconsul­tum, the SC Velleianumf This provided that, where a woman agreed to guarantee another person’s debts,^[399] that agreement was not enforceable against her. The purpose of this was, Ulpian tells us, to protect women, who could be misled on account of the ‘weakness of the sex’.^[400]

The restriction imposed by the SC Velleianum is one that has had continuing significance in medieval and later law. It survived, under the Roman name, until 1971 in South Africa.^[401] A similar rule found its way into the law of Quebec, even though the SC Velleianum had been abolished in France (from which the law of Quebec is derived) in 1606.^[402] It was not received in Scots law, although women were subject to a number of other restrictions in Scots law that persisted to some extent until the nineteenth century.^[403]

Nonetheless, the issue never entirely goes away, because it will always be the case that there will be people prepared to guarantee the debts of friends or relations when they would be better advised not to do so. In the 1990s, the House of Lords moved, in both Scotland^[404] and England,^[405] to limit the capacity^[406] of presumptively vulnerable groups of people^[407] to guarantee the debts of close relations.^[408] Similar developments occurred in Germany.^[409] Although these modern developments are in gender neutral terms, women were clearly a major group intended to fall within their scope.

(2) Children

A person with a living paterfamilias had limited legal capacity.

(3) Freedmen

Although a freed slave acquired Roman citizenship, the newly created citizen's rights were subject to certain limitations. The law made a distinction between the freeborn (ingenui), on the one hand, and freedmen and freedwomen (libertini), on the other.^[413] As we shall see in more detail in Chapter 6, a freedman or freedwoman was subject to certain public law restrictions, and continued to owe various duties to the former master or mistress.

(4) Others

There were other groups whose capacity was limited. As early as the Twelve Tables, it was recognised that the insane (furiosi) could not simply be left to their own devices. Furiosi had no legal capacity to enter into transactions, except during lucid intervals. A magistrate could appoint a curator to take care of the property and affairs of the furiosus. This role included taking care of the health and well­being of thefuriosusf^[414] Later, by analogy with this, the praetor acquired the power also to appoint a curator to manage the property of spendthrifts (prodigi),^[415] who by this procedure were deprived of the capacity to transact with their property.^[416]

Infames were those who had incurred a form of legal disgrace called infamia, which imposed upon them various legal disabilities, such as the inability to act in litigation or to hold public office.^[417] The juristJulian gives a lengthy, non-exhaustive, list of cases in which infamia is incurred, all cases in which the individual in ques­tion has engaged in some form of discreditable conduct.⁴⁷ Included on the list are dishonourably discharged soldiers; brothel-keepers; vexatious litigants; thieves, robbers, fraudsters and those held liable for iniuria; anyone found liable in a case of partnership, tutelage, mandate or deposit; and anyone who gives or receives a widowed daughter in marriage during her proper time of mourning.

Similar to infames were intestabiles, who were barred from acting as witnesses in litigation or in formal transactions, such as the making of a will.⁴⁸ There seems to have been some doubt as to whether it was permissible for anyone to witness a transaction by an intestabilis either.⁴⁹ If that was not permissible, then the effect would be that an intestabilis could not make a will or make a formal conveyance of property.⁵⁰ This status was in principle separate from infamia, although the same conduct might incur both consequences.