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For the curatores of roads, see Viae;
for the curatores of aqueducts, see Aquaeductus.
For another less frequent use of the title, see Gladiatores.

p374 Curator

Article by George Long, M.A., Fellow of Trinity College
on pp374‑376 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

CURA′TOR. Up to the time of pubertas, every Roman citizen, as a general rule, was incapable of doing any legal act, or entering into any contract which might be injurious to him. The time when pubertas was attained, was a matter of dispute; some fixed it at the commencement of the age of procreation, and some at the age of fourteen (Gaius, I.169). In all transactions by the impubes, it was necessary for the auctoritas of the tutor to be interposed. [Auctoritas; Tutor.] With the age of puberty, the youth attained the capacity for contracting marriage and becoming a paterfamilias: he was liable to military service, and entitled to vote in the comitia; and consistently with this, he was freed from the control of a tutor. Females who had attained the age of puberty became subject to another kind of tutela. [Tutela.]

With the attainment of the age of puberty by a Roman youth, every legal capacity was acquired which depended on age only, with the exception of the capacity for public offices, and there was no rule about age, even as to public offices, before the passing of the lex Villia. [Aediles.] It was, however, a matter of necessity to give some legal protection to young persons who, owing to their tender age, were liable to be overreached; and consistently with the development of Roman jurisprudence, this object was effected without interfering with the old principle of full legal capacity being attained with the age of puberty. This was accomplished by the lex Plaetoria (the true name of the lex, as Savigny has shown), the date of which is not known, though it is certain that the law existed when Plautus wrote (Pseudolus, I.3.69). This law established a distinction of age, which was of great practical importance, by forming the citizens into two classes, those above and those below twenty-five years of age (minores viginti quinque annis), whence a person under the last-mentioned age was sometimes simply called minor. The object of the lex was to protect persons under p375twenty-five years of age against all fraud (dolus). The person who was guilty of such a fraud was liable to a judicium publicum (Cic. De Nat. Deor. III.3) though the offence was such as in the case of a person of full age would only have been matter of action. The punishment fixed by the lex Plaetoria was probably a pecuniary penalty, and the consequential punishment of infamia or loss of political rights. The minor who had been fraudulently led to make a disadvantageous contract, might protect himself against an action by a plea of the lex Plaetoria (exceptio legis Plaetoriae). The lex also appears to have further provided that any person who dealt with a minor might avoid all risk of the consequences of the Plaetoria lex, if the minor was aided and assisted in such dealing by a curator named or chosen for the occasion. But the curator did not act like a tutor: it can hardly be supposed that his consent was even necessary to the contract; for the minor had full legal capacity to act, and the business of the curator was merely to prevent his being defrauded or surprised.

The praetorian edict carried still further the principle of the lex Plaetoria, by protecting minores generally against positive acts of their own, in all cases in which the consequences might be injurious to them. This was done by the "in integrum restitutio": the praetor set aside transactions of this description, not only on the ground of fraud, but on a consideration of all the circumstances of the case. But it was necessary for the minor to make application to the praetor, either during his minority, or within one year after attaining his majority, if he claimed the restitutio; a limitation probably founded on the lex Plaetoria. The provisions of this lex were thus superseded or rendered unnecessary by the jurisdiction of the praetor, and accordingly we find very few traces of the Plaetorian law in the Roman jurists.

Ulpian and his contemporaries speak of adolescentes, under twenty-five years of age, being under the general direction and advice of curatores, as a notorious principle of law at that time (Dig. 4, tit. 4; De Minoribus XXV Annis). The establishment of this general rule is attributed by Capitolinus (M. Anton. c10) to the emperor M. Aurelius in a passage which has given rise to much discussion. Savigny's explanation is as follows:— Up to the time of Marcus Aurelius there were only three cases or kinds of curatela:

  1. That which was founded on the lex Plaetoria, by which a minor who wished to enter into a contract with another, asked the praetor for a curator, stating the ground or occasion of the petition (reddita causa). One object of the application was, to save the other contracting party from all risk of judicial proceedings in consequence of dealing with a minor. Another object of the application was, the benefit of the applicant (the minor); for no prudent person would deal with him, except with the legal security of the curator (Plaut. Pseudolus, I.3.69: "Lex me perdit quinavicenaria: metuunt credere omnes.").

  2. The curatela, which was given in the case of a man wasting his substance, who was called "prodigus."

  3. And that in the case of a man being of unsound mind, "demens," "furiosus."

In both the last-mentioned cases provision was made either by the law or by the praetor. Curatores who were determined by the law of the Twelve Tables, were called legitimi; those who were named by the praetor, were called honorarii. A furiosus and prodigus, whatever might be their age, were placed under the cura of their agnati by the law of the Twelve Tables. When there was no legal provision for the appointment of a curator, the praetor named one. Curatores appointed by a consul, praetor, or governor of a province (praeses), were not generally required to give security for their proper conduct, having been chosen as fit persons for the office. What the lex Plaetoria required for particular transactions, the emperor Aurelius made a general rule, and all minors, without exception, and without any special grounds or reasons (non redditis causis), were required to have curatores.

The following is the result of Savigny's investigations into the curatela of minors after the constitution of M. Aurelius. The subject is one of considerable difficulty, but it is treated with the most consummate skill, the result of complete knowledge, and unrivalled critical sagacity. The minor only received a general curator when he made application to the praetor for that purpose: he had the right of proposing a person as curator, but the praetor might reject the person proposed. The apparent contradiction between the rule which required all minores to have a curator, and the fact that the minor received a general curator only when he applied for one, is explained by Savigny in his essay (p272, &c.). The curator, on being appointed, had, without the concurrence of the minor, as complete power over the minor's property as the tutor had up to the age of puberty. He could sue in respect of the minor's property, get in debts, and dispose of the property like a tutor. But it was only the property which the praetor intrusted to him that he managed, and not the acquisitions of the minor subsequent to his appointment; and herein he differed from a tutor who had the care of all the property of the pupillus. If it was intended that the curator should have the care of that which the minor acquired, after the curator's appointment, by will or otherwise, a special application for this purpose was necessary. Thus, as to the property which was placed under the care of the curator, both as regards alienation and the getting in of debts, the minor was on the same footing as the prodigus: his acts in relation to such matters, without the curator, were void. But the legal capacity of the minor to contract debts was not affected by the appointment of a curator; and he might be sued on his contract either during his minority or after. Nor was there any inconsistency in this: the minor could not spend his actual property, for the preservation of his property during minority was the object of the curator's appointment. But the minor would have been deprived of all legal capacity for doing any act if he could not have become liable on his contract. The contract was not in its nature immediately injurious, and when the time came for enforcing it against the minor, he had the general protection of the restitutio. If the minor wished to be adrogated [Adoptio], it was necessary to have the consent of the curator. It is not stated in the extant authorities what was the form of proceeding when it was necessary to dispose of any property of the minor by the mancipatio or in jure cessio; but it may be safely assumed that the minor acted (for he alone could act on such an occasion) and the curator gave his consent, which, in the case supposed, would be analogous to the auctoritas of the tutor. But it would differ from the auctoritas p376in not being, like the auctoritas, necessary to the completion of the legal act, but merely necessary to remove all legal objections to it when completed.

The cura of spendthrifts and persons of unsound mind, as already observed, owed its origin to the laws of the Twelve Tables. The technical word for a person of unsound mind in the Twelve Tables is furiosus, which is equivalent to demens; and both words are distinguished from insanus. Though furor implies violence in conduct, and dementia only mental imbecility, there was no legal difference between the two terms, so far as concerned the cura. Insania is merely weakness of understanding (stultitia constantia, id est, sanitate vacans, Cic. Tusc. Quaest. III.5), and it was not provided for by the laws of the Twelve Tables. In later times, the praetor appointed a curator for all persons whose infirmities required it. This law of the Twelve Tables did not apply to a pupillus or pupilla. If, therefore, a pupillus was of unsound mind, the tutor was his curator. If an agnatus was the curator of a furiosus, he had the power of alienating the property of the furiosus (Gaius, II.64). The prodigus only received a curator upon application being made to a magistratus, and a sentence of interdiction being pronounced against him (ei bonis interdictum est. Compare Cic. De Senec. c7). The form of the interdictio was thus:— "Quando tibi bona paterna avitaque nequitia tua disperdis, liberosque tuos ad egestatem perducis, ob eam rem tibi ea re commercioque interdico." The cura of the prodigus continued till the interdict was dissolved. It might be inferred from the form of the interdict, that it was limited to the case of persons who had children; but perhaps this was not so (Dig.27. tit. 10; Cod. 5 tit. 70; Inst. I. tit. 23).

It will appear from what has been said, that, whatever similarity there may be between a tutor and a curator, an essential distinction lies in this, that the curator was especially the guardian of property, though in the case of a furiosus he must also have been the guardian of the person. A curator must, of course, be legally qualified for his functions, and he was bound, when appointed, to accept the duty, unless he had some legal exemption (excusatio). The curator was also bound to account at the end of the curatela, and was liable to an action for misconduct.

The word cura has also other legal applications;—

  1. Cura bonorum, in the case of the goods of a 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, in case of a dispute as to who is the heres of a person, when his supposed child is under age.

  4. Cura hereditatis jacentis, in the case of a property, when the heres had not yet declared whether or not he would accept the inheritance.

  5. Cura bonorum absentis, in the case of property of an absent person who had appointed no manager of it.

This view of the curatela of minors is from an essay by Savigny, who has handled the whole matter in a way equally admirable, both for the scientific precision of the method and the force and perspicuity of the language. (Von dem Schutz der Minderjährigen, Zeitschrift. vol. X; Savigny, Vom Beruf, &c. p102; Gaius, I.197; Ulp. Frag. XII; Dirksen, Uebersicht, &c. Tab. V. Frag. 7; Mackeldey, Lehrbuch des heutigen Römischen Rechts, § 488, &c. (12th ed.); Thibaut, System des Pandekten-Rechts, § 786, &c. 9th ed. &c.).


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