Curātor
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
adulescentes (i. e. persons who were
sui
iuris and between the age of puberty—twelve or fourteen [
Gaius, i. 196;
Inst. i. 22, pr.]—and twenty-five 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 iuris reached puberty, and escaped from the
supervision of his guardian (see
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 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 B.C. 183, for it is mentioned by Plautus
(
Pseud. i. 3, 69), 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
iudicium
publicum or prosecution (
de Off. iii. 15.61), entailing a pecuniary fine
and infamia on conviction; 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.
Macr. 10) apparently went on to provide that minors who wished to
contract or deal with other persons, especially in the way of stipulation (Priscian, viii. 4;
xviii. 9) and loan, should be compellable to receive a curator on their application, by whose
assent to the transaction the penal consequences of the law 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 with in a year after the
attainment of majority.
The Emperor Marcus Aurelius (Gaius,
Epit. 1, 8) seems to have extended the
scope of the
cura of minors 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, except where he was involved in litigation; when a person
who owed him money wished to discharge his debt and obtain a release (
Dig. iv.
4, 7, 2); and possibly where 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 (Ulpian,
Reg. 12, 4; Dio Cass. lii. 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. i. 23, 1; cf. Dio Cassius,
xliv. 35); and, according to rule, the minor had to apply for a curator himself. 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 that they would
diligently look after the interests intrusted 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 the
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 had not been given, he could get himself
in integrum restitutus by the magistrate (
Cod. ii. 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. But a series of imperial enactments
(
Cod. v. 71, 16; v. 37, 22) placed him 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 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.
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, though only if his property had come to him by the intestacy of his own
father. In default of these
legitimi curatores, one would be appointed
for such persons by the magistrate (
Inst. i. 23, 3).
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. i. 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. i. 21, 3), or if the latter
was unfit or temporarily unable to discharge his duties (ib.
23,
5).
It will appear from what has been said that 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 iacentis, 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.
