), also called μισθώσεως οἴκου
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
: 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,
Lips.). The question whether the action μισθώσεως
was public or private, a γραφὴ
or a δίκη,
discussed by Boeckh (P. E.
p. 355 f. = Sthh
3 1.425 f.) and the authors of the Attische
(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. 361; cf. Thalheim, Rechtsalterth.
pp. 14, n. 4,
84, n. 2; PHASIS
). There is a
further doubt whether the φάσις
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
Harpocrat., Suid., s. v.; Lex. Rhet.
p. 667, 7; Etym. M.
p. 788, 50); the Lex.
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]
], § 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.
28 ff.) The tenant or tenants of the property of an orphan had to give
) for it, and to
) 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,
and those who took it were
said μισθοῦσθαι τὸν οἶκον
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.
], § 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;
p. 752 a.