The Ancient Library

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twenty-five years of age against all fraud (dolus). The person who was guilty of such a fraud was liable to a judiciurn publicum (Cic. De Nat. Deor. i\\. 30), 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 minors 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 in-tegrum 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 The provisions of this lex were thus superseded or rendered unnecessary by the jurisdiction of the praetor, and accordingly we find very few traces of the Plaetorian law in the Roman jurists.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 adole-scentes, 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 Capito-linus (M. Anton. c. 10) 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 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 quinavice.naria: 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. Cura-tores 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 minors 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 (p. 272, &e.). 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 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 incon-sistenc}'" 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 hava 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 adro-gated [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,,

B b 4

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