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MISTHO´SEOS PHASIS (μισθώσεως φάσις), also called μισθώσεως οἴκου φάσις, is the action brought against a guardian for either having neglected to make profitable use of the property of his ward, or for having made no use of it at all. Use might be made of such property either by letting it, if it consisted of lands or houses, or by putting it out to interest, if it consisted of capital. Like the kindred are action κακώσεως τῶν ὀρφανῶν, it might be brought against the guardian, during the, minority of his ward, by any person who took an interest in the welfare of the orphan. After the orphan came of age, the remedy lay in his own hands by a δίκη ἐπιτροπῆς: in the confused notices of the grammarians we find also a γραφὴ ἐπιτροπῆς (Poll. 8.35), but this is almost certainly a mistake (Att. Process, p. 360 Lips.). The question whether the action μισθώσεως was public or private, a γραφὴ or a δίκη, has been discussed by Boeckh (P. E. p. 355 f. = Sthh3 1.425 f.) and the authors of the Attische Process (p. 294 f.) without coming to any very definite conclusion. In reality, as the recent editors of these two works have pointed out, the only word used by good authorities is φάσις, a particular kind of public prosecution by way of information (Fränkel on Boeckh, n. 566; Lipsius, A. P. p. 361; cf. Thalheim, Rechtsalterth. pp. 14, n. 4, 84, n. 2; PHASIS). There is a further doubt whether the φάσις lay only against a guardian who had not let the property at all, or also against one who had not let it to the best advantage. Most grammarians include the latter case (κατὰ τῶν οὐ δεόντες μεμισθωκότων, Harpocrat., Suid., s. v.; Lex. Rhet. p. 667, 7; Etym. M. p. 788, 50); the Lex. Seguer. mentions only the non-letting (pp. 312, 24; 315, 18). Complaints of this kind were brought before the first archon. In cases where the guardian would not or could not occupy himself with the administration of the property of his ward, he might request the archon to let the whole substance of his ward's property to the highest bidder, provided the testator had not expressly forbidden this mode of acting in his will. (Demosth. c. Aphob. ii. p. 837.5; compare iii. p. 853.29, 857.42; Lys. c. Diogeit. § 23.) The letting of such property took place by auction, and probably in the presence of a court of justice, for we read that the court decided in cases where objections were made against the terms of letting the property. [p. 2.174]Isae. Or. 6 [Philoct.], § 36 ff.) The person who took the property had to pay an annual percentage for the right of using it, and this percentage frequently amounted to more than 12 per cent. per annum. If one man alone was unwilling to take the whole property on such conditions, it might be divided and let to several persons separately. (Isae. Or. 2 [Menecl.], § 28 ff.) The tenant or tenants of the property of an orphan had to give security (ἀπορίμημα) for it, and to mortgage (ἀποτιμᾷν) his own estate, and the archon sent especial persons, ἀποτιμηταί, to value his property, and to ascertain whether it was equivalent to that of the orphan. (Suidas, s. v. Ἀποτιμηταί.) The technical term for letting the property of an orphan, whether it was done by the guardian himself or by the archon, was μισθοῦν, and those who took it were said μισθοῦσθαι τὸν οἶκον (οἶκος here signifies the whole substance of the property, Dem. c. Aph. i. p. 818.15; 826.40; 827.43; 831.58). The tenants of the estate of an orphan had the right and perhaps the obligation to protect it against any other person. (Isae. Or. 7 [Hagn.], § 16.) It is not clear what resource was open to an orphan against a tenant who did not fulfil his obligations, but it is probable, that if any disputes arose, the guardian or the archon alone were answerable and had to procure justice to the orphan.

(Boeckh, P. E. pp. 142, 355=Sthh.3 1.179, 425; Att. Process, pp. 294, 532=361, 726 f. Lips.; Thalheim, ubi supra; cf. EPITROPUS p. 752 a.

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