The Sui Iuris Child

We have focused so far on the concept of potestas, and what this meant for the relationship between the paterfamilias and those in his power. Among free citizens, the fundamental distinction was between those who were alieni iurisВ· and those who were sui iuris.

The former were legally dependent, and the latter were legally independent. That could not be the end of the story, however. A young child, for example, would be legally independent in this way if he or she had no paterfaВmilias, yet such a child could hardly be expected to manage his or her own affairs. The law, therefore, had to provide ways of dealing with this. One of these was the institution of guardianship (tutela), by which a guardian (tutor) could be appointed to safeguard the interests of a person deemed incapable of properly managing his or her own affairs.^[584] We saw certain examples of this in Chapter 5. The most important examples, however, are guardians of those under the age of puberty and guardians of women. These will both be considered in this section. Also to be considered is the situation of those who had reached puberty, but whose youth meant that they were still seen as being in need of protection.

(1) Guardianship (Tutela)

A sui iuris child who was under the age of puberty (which was set at twelve for girls and fourteen for boys) had to have a guardian (tutor) to manage his or her affairs. Guardians were of different types. A testamentary guardian was one appointed by the paterfamilias in his will for those becoming sui iuris on his death.^[585] Failing this, a person could be appointed as a statutory guardian under rules derived from the Twelve Tables. For most cases, this was the nearest agnate,^[586] but there were two special cases. The first was that a father who had emancipated his son was the son's statutory guardian.^[587] If the father died before the son reached puberty, any other son he might have, who had reached full age, would be fiduciary guardВian.^[588] In the case of a manumitted slave, the former master was the ex-slave's statutory guardian.^[589] Failing a testamentary, fiduciary or statutory guardian, a magistrate could appoint someone to act.^[590] The appropriate person could be compelled to act if necessary,^[591] with only limited excuses accepted as absolving him from taking on the role.^[592] In principle, acting as a guardian was considered a вЂmasculine duty', inconsistent with вЂfeminine weakness', and so women were not permitted to take on the role.^[593] In post-classical law, however, a woman would occasionally be allowed to be guardian of her own children, on condition that she not marry.^[594]

The guardian had two main duties: he was to administer the child's property, and where appropriate he was to give his authorisation (auctoritas) to the child's transactions.

This was necessary because the child had no legal capacity to enter into any transactions that had the potential to worsen his or her position. Thus, the child could not be made liable under a contract or alienate property without the guardian's authorisation,^[595] nor could the child free a slave without authorisation,^[596] or accept an inheritance, even a profitable one.¹¹⁰ They could not even validly receive payment of a debt owed to them.^[597] The child could, however, acquire property, for example through a gift.^[598] ^{^[599] Children aged under seven, however, did not even have this degree of legal capacity. Such children were known as infantes.^[600] The focus here was the preservation of the child's property rather than the child's welfare, which explains why the child's agnates were statutory guardians: as we shall see in Chapter 16,^[601] they had rights in the child's intestacy. The guardian was not specifically responsible for the personal care of the child, who would usually be left with his or her mother if possible. However, the guardian was required to spend money on the child's upkeep in accordance with the child's social status and resources.¹¹⁵
On taking office, the guardian was required to take an inventory of the child's property, and manage it with proper care.^[602] Failure in this would render the guardian liable for the child's losses.^[603] Except for testamentary guardians or those appointed by a magistrate, a guardian had to give security on taking office.^[604] A negligent or dishonest guardian could be removed by court action.^[605] Otherwise, the guardianship would normally continue until the child reached puberty,^[606] or the guardian stood down on giving sufficient reason.^[607]
Later law was strongly influenced by the Roman law on this point. For Scots law, Stair says: вЂThe Romans have in this matter kept clearly and closely by the law of nature; and therefore our customs have kept as near by them; and so have the customs of other nations.'^[608] In his account,^[609] Stair draws extensively on Roman sources, and there is substantial similarity between his account and the Roman law.
For example, the age at which the guardianship comes to an end is the same (fourteen for boys, twelve for girls) and the same terminology is used as in Roman law (вЂtutor' for the guardian; вЂpupil', from pupillus, for the child subВject to it). The term вЂguardian' has been used instead of вЂtutor' here, however, because it is the modern terminology and to avoid confusion with pupils and tutors in an educational context.^[610] ¹¹⁰ D.26.8.9.3. The reason for this is that it might involve liabilities as well.
J.1.22pr.
J.1.22.6.
Stair, Institutions 1.6.4. See also Erskine, Institute 1.7.1.
Stair, Institutions 1.6.1вЂ”38.
This area is now regulated by the Children (Scotland) Act 1995, in terms of which a guardian may be appointed for a child by his or her parents (s. 7) or by the court (s. 11(2)(h)).
(2) Cura Minorum
In principle, a sui iurisВ· person acquired full legal capacity on reaching puberty. Still, though, it is fairly obvious that an inexperienced person may make unwise decisions, and the need came to be seen to protect them from the consequences of those decisions. Around 200 BC, a statute called either the lex Plaetoria or the lex Laetoria was passed, which penalised those who took unfair advantage of those aged under twenty-five (known as вЂminors'). Furthermore, the praetor introduced a defence against anyone who tried to enforce against a minor a contract that was disadvantageous to the minor.^[611]
In one sense, this was in the interests of the minor, and limited the extent to which unfair advantage could be taken of the minor's lack of experience. HowВever, it had the severe disadvantage that the existence of this protection would make people reluctant to make contracts with minors, even where the terms of the contract were reasonable and the minor had not been circumvented in any way. For this reason, the practice arose of minors appointing a curator to assist them with their transactions.
The involvement of a curator was not strictly required. If the minor had sufficient capacity to enter into the transaction, the curator added nothing. Equally, if the transaction was challengeable, the presence of the curaВtor did not in principle save it. After all, except for the special case of a curator ad litem (a curator who could be appointed by a judge to look after the minor's interests in legal proceedings),^[612] the curator was appointed by the minor personВally.^[613] The curator had no special legal power to authorise transactions. He did, however, provide a check on the reasonableness of transactions. The presence of a curator would have been strong evidence that the transaction was a reasonable one and was not challengeable. For this reason, the appointment of a curator became standard practice. From the time of Marcus Aurelius,^[614] it became possible for the minor to apply to a magistrate to have a curator appointed. This curator would then act until the minor reached the age of twenty-five. Often, though, the person who had been the minor's guardian would simply continue as curator. In time, the distinction between the two offices of guardian and curator came to be blurred, and by JusВtinian's time the two had virtually merged.
Much as was the case with guardianship, the Roman law on curatorship strongly influenced later law.^[615] For Scots law, again, Stair's account makes extensive use of Roman sources.^[616] Thus, following Roman law,^[617] Stair makes a distinction between the curator ad litem, who is appointed by the court, and other curators,^[618] who are appointed with the minor's consent.^[619] The same terminology (curator and minor) is used. One difference, though, is that in the Scots common law minority ends at the age of twenty-one, rather than twenty-five as in Roman law.^[620]
Modern law, however, has no room for curatorship in this sense, because in the current Scots law a child has no legal capacity to enter into any transaction at all up to the age of sixteen^[621] (subject to certain limited exceptions),^[622] and on reaching sixteen has in principle full legal capacity.^[623] There is a remnant of the older idea of the minor as having in principle full capacity subject to certain proВtections, in the rule that a person who enters into a вЂprejudicial transaction' while aged sixteen or seventeen may apply to the court to have the transaction set aside before reaching the age of twenty-one.^[624] There is, however, no provision for a curator to act as in Roman law.^[625] It is, though, still possible for a court to appoint a curator ad litem to protect the interests of a child involved in litigation^[626] or a curator bonis to manage some transaction of the child's.^[627]
(3) Guardianship of Women (Tutela Mulierum)
While a boy ceased to require a guardian at puberty, the same was not true of girls.
Instead, as we saw in Chapter 5,^[628] sui iuris girls and women were subject to lifelong guardianship. This was true even of married women, whose fathers were free to appoint guardians for them in their (the fathers') wills.^[629] Women's guardians were appointed in the same ways as children's guardians. Appointment by will has already been mentioned. Failing this, a statutory guardian would be appointed. Emperor Claudius^[630] abolished the statutory guardianship of a woman's agnates, however, so the only statutory guardians of women after this were the father of an emancipated woman and the patron of a freedwoman.^[631]
A woman's guardian had a more limited role than a childвЂ™s guardian, having only the responsibility for authorising her transactions. A woman's guardian did not manage her property. Even so, many women must have found it inconveВnient to have to get their guardian's approval for their transactions. As part of his marriage legislation,^[632] Augustus excused women the need to have a guardian if they had three children (four for freedwomen), which must have been welcome to those benefiting. It seems clear, though, that in the classical period the guardВianship of women was hollowed out of practical consequences. By Gaius' time, only statutory guardians could not be readily replaced at the woman's instance.^[633] Moreover, a guardian could be compelled to give authority against his will.^[634] For this reason, a woman's guardian was not liable for his conduct: there was nothВing he could do to incur any liability. Women's guardianship is not mentioned by Justinian, and may have disappeared by the end of the third century AD.^[635]}

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Source: Anderson Craig. Roman Law for Scots Law Students. Edinburgh University Press,2021. вЂ” 496 p.. 2021

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