CURA´TOR
CURA´TOR Curators were persons appointed either by
law or by the magistrate to look after the property of certain classes of
people, and to prevent its being squandered, because they were unfit or
unable to properly take charge of it themselves. Those classes are mainly
four: minors or
adolescentes (i. e. persons who
were
sui juris and between the age of
puberty--12 or 14 (Gaius, 1.196; Inst. 1.22, pr.)--and 25 years); lunatics;
interdicted prodigals; and a miscellaneous class, the
cura of which was considerably later in origin.
The
cura of minors is to be attributed to the
fact that when a young person who was
sui juris
reached puberty, and escaped from the supervision of his guardian [
TUTELA], he was regarded as
having attained his full stature, intellectual no less than physical: he
might marry and become a paterfamilias; he was liable to military service,
entitled to vote in the comitia, and competent to hold public office; and he
had the complete management of his own affairs. But it soon was felt to be a
matter of necessity to give him some legal protection against designing and
unscrupulous persons, for it became clear that his indiscretion and
ignorance of business would frequently lead to his being overreached; and
this was done, without interfering with the principle that full legal
capacity was attained with puberty, by the Lex Plaetoria, passed certainly
before 183 B.C., for it is mentioned by Plautus
(
Pseud. 1.3, 69;
Rud. 5.3, 26), who died
in that year. This statute (which appears to have first established the
distinction between minority and full age) protected minors by subjecting
any one who fraudulently overreached them to a
judicium
publicum or prosecution (
Cic. de Nat. Deor. 3.3. 0,
§ 74;
de Off. 3.15.61), entailing a pecuniary fine
and infamia on conviction (Lex Julia Municip. 38); and after the
introduction of
exceptiones by the praetor, a
minor who was fraudulently induced to enter into a contract could protect
himself against action brought thereon by pleading the exceptio legis
Plaetoriae. It being unlikely that in the face of this stringent procedure
any one would have any dealings with minors whatever, the statute (Capitol.
Marc. 10) apparently went on to provide that minors who
wished to contract or deal with other persons, especially in the way of
stipulation (Priscian, 8.4, 18.9; Plautus,
Rud. l.c.) and
loan (Plaut.
Pseud. l.c.), should be compellable to receive a
curator on their application, by whose assent to the transaction the penal
consequences of the lex should be avoided.
The principle of the Lex Plaetoria was carried still further by the praetor,
who by means of
in integrum restitutio
protected minors generally against indiscretion causing them proprietary
loss (
laesio); he would set aside transactions
into which they had entered, not only on the ground of fraud, but on a
consideration of all the circumstances of the case, provided application
were made to him within a year after the attainment of majority. The
superiority of this form of redress explains the scanty references to the
Lex Plaetoria to be found in the writings of the jurists. (
Dig. 4,
4; Cod. 2, 22; Savigny,
System, § § 322-324; Vangerow,
Pandekten, § § 183, 184.)
The Emperor Marcus Aurelius (Capitol.
Marc. 10; Gaius,
Epit. 1, 8) seems to have extended the scope of the cura
of minores by providing that a minor might, on application to the proper
magistrate, obtain a permanent curator to look generally after his property,
and aid him with advice. The principle was that he could not be compelled to
have a general curator unless he pleased ( “inviti adolescentes
curatores non accipiunt,” Inst. 1.23, 2), except where he was
involved in litigation (Inst.
loc. cit.; a judgment
against an undefended minor being void,
Dig. 42,
1,
45,
6); when a person who owed him money wished to discharge his
debt and obtain a release (
Dig. 4,
4,
7,
2); and
possibly where
[p. 1.575]he had disregarded the advice given
to him by his guardian, on reaching puberty, to get one appointed for him.
But apparently most minors were induced by the convenience of the system to
have general curators to assist and advise them (Dig.
loc. cit.; Ulpian,
Reg. 12, 4;
D. C. 52,
20).
The curators of minors were always appointed by the magistrate: a
testamentary appointment in itself was void, though the magistrate would
usually confirm it by nominating the same person (Inst. 1.23, 1: cf. Dio
Cassius, 44.35); and, according to rule, the minor had to apply for a
curator himself:
δέον ἄλλον αὐτῷ μὴ αἰτεῖν,
ἀλλὰ αὐτὸν ἑαυτῷ (Ulpian in
Dig.
26,
6,
2,
5). The munus was a public one, and could not be
declined except on specific grounds, carefully enumerated in the authorities
(Inst. i. tit. 25); many curators had to give security [
CAUTIO],
rem
salvam fore, that they would diligently look after the
interests entrusted to them; and if suspected of malversation or negligence,
they could be removed by the magistrate, and in cases of fraud were liable
to the
suspecti crimen, a quasi-criminal
prosecution (Inst. i. tit. 26).
A minor was fully competent to perform legal acts, such as the conveyance of
property or making of contracts ; but whether such legal acts had their full
usual effect or not depended on whether they were sanctioned by the curator.
Both alienations and contracts were
primâ
facie binding on him; but against both, if they were seriously
prejudicial, or the curator's consensus has not been given, he could get
himself
in integrum restitutus by the
magistrate (Cod. 2, 22, 3); and if the curator had not assented to a
contract, he could not be compelled to disburse anything from the minor's
property in discharge of it, or to pay costs or damages of actions brought
in respect thereof by the other party. From this it will be gathered that
the curator had the control and administration of his ward's property
exactly as a guardian had (
Dig. 23,
2,
20;
46,
3,
14,
7). But a series of imperial enactments (Cod. 5, 71,
16; 5, 37, 22) placed him and the guardian alike under very stringent
regulations in respect of alienation of the ward's property, which as a
general rule was not allowed without permission from a magistrate. If a
minor wished to give himself in adrogation [
ADOPTIO], the curator's consent was necessary.
The cura of
furiosi (lunatics and idiots) and
interdicted prodigals or spendthrifts originated with the Twelve Tables,
which placed
furiosi under the cura of their
nearest agnates, or, if there were no agnates, of their gentiles, on the
analogy of the rules of Intestate Succession (
Cic.
de Invent. 2.5. 0, § 148; Varro,
de Re Rust. 1.2; Auctor
ad
Herenn. 1, 13; Ulpian,
Beg. 12.1, 2). Similarly the
near relations of a
prodigus might petition the
magistrate for his interdiction from the management of his own affairs, and
his subjection to the cura of his nearest agnates (Ulpian,
loc. cit.;
Cic. de Senect. 7, 22; Paul.
Sent. rec. 3.4, 7;
V. Max.
3.5,
2), though only if his property had
come to him by the intestacy of his own father (Ulpian,
Reg.
12.3). In default of these
legitimi curatores,
one would be appointed for such persons by the magistrate (Inst. 1.23, 3;
Cod. 5, 70, 7, 6;
Dig. 27,
10,
13), and in historical times the cura
of
prodigi was no longer confined to the single
case of which Ulpian speaks.
In the time of Justinian other classes of persons were able to get a general
curator by application to the magistrate, especially those suffering from
weak health, impaired mental faculties, or bodily infirmity, e. g. the deaf
and dumb (Inst. 1.23, 4). Similarly it would sometimes happen that an
impubes would have a curator as well as a
guardian: e. g. if there was litigation between himself and the latter
(Inst. 1.21, 3), or if the latter was unfit or temporarily unable to
discharge his duties (ib. 23, 5). In all these cases, the curator's activity
would vary with the capacity of the ward. Lunatics and idiots were in law
incapable of legal action, so that here the curator had to do everything;
but with other persons he might leave the management of their property very
much in their own hands, though this apparently did not diminish the
responsibility which he had undertaken, especially if he had given the
security
rem salvam fore.
It will appear from what has been said that, whatever similarity there may
have been between a guardian and a curator, an essential distinction lies in
this, that the latter was especially intended to look after the ward's
proprietary interests, whereas the former was
personae,
non rei datus.
The word
cura has also other legal applications:
(1)
cura bonorum, as in the case of the goods
of an insolvent debtor, which are secured for the benefit of his creditors;
(2)
cura bonorum et ventris, in the case of a
woman being pregnant at the death of her husband; (3)
cura hereditatis, where there is a dispute as to who is the
heres of a person, and his supposed child
is under puberty; (4)
cura hereditatis
jacentis, the charge of an inheritance of which the apparent heir
has not yet declared his acceptance; (5)
cura bonorum
absentis, in the case of property of an absent person who had
appointed no manager of it.
(Savigny,
Von dem Schutz der Minderjährigen im
römischen Recht, vermischte Schriften, 2.321-395;
Puchta,
Institutionen, § 299; Walter,
Geschichte des röm. Rechts, §
§ 556-558; Vangerow,
Pandekten, §
§ 291-294.)
[
J.B.M]
