Tutela

Definition:

Tutela, in Roman law, refers to the legal guardianship over a person who is sui iuris (independent in law) but lacks the capacity to manage their own affairs. This typically applied to women and prepubescent children (both male and female). The purpose of tutela was to provide oversight and support in the administration of the protected individual's property and legal transactions.

Types of Tutela:

• Tutela Impuberum: Guardianship over children (both boys and girls) before they reached puberty (around 14 for boys, 12 for girls). The tutor (guardian) managed the child's property until they came of age or reached puberty. Upon reaching puberty, boys would become sui iuris unless another legal impediment existed.

• Tutela Mulierum: Guardianship over women, even after they reached the age of puberty. This form of tutela reflected the patriarchal nature of Roman society, where women were generally seen as needing male oversight in legal and financial matters. The tutela mulierum gradually diminished in importance and scope over time, eventually becoming largely nominal.

Role of the Tutor:

The tutor's primary responsibilities included:

• Auctoritas Interpositio: Providing legal authorization ("auctoritas") for the ward's actions. This meant the tutor had to approve certain legal transactions to make them valid. The specific types of transactions requiring the tutor's approval varied depending on the type of tutela.
• Negotiorum Gestio: In the case of tutela impuberum, the tutor might actively manage the ward's property and conduct business on their behalf.
• Care for Property: Ensuring the preservation and responsible management of the ward’s assets.

Appointment of Tutors:

Tutors could be appointed in several ways:

• Testamentary Tutela: Appointed by the will of the deceased father or husband.
• Legal Tutela (Tutela Legitima): Appointed by law, usually to the nearest male relative.
• Dativa Tutela: Appointed by a magistrate when no testamentary or legal tutor was available.

Termination of Tutela:

Tutela terminated under various circumstances, including:

• The ward reaching the age of majority (for tutela impuberum).
• The death of the tutor or ward.
• The ward becoming free from the condition that necessitated tutela (for instance, a woman gaining ius liberorum, the right to be free from tutela after bearing a certain number of children).
• The tutor being removed from the position due to misconduct.

Evolution of Tutela:

Over the course of Roman history, the strictures of tutela, particularly tutela mulierum, were gradually relaxed. By the time of Justinian, tutela mulierum had largely become a formality, often requiring only perfunctory authorization from the tutor. The institution of tutela eventually faded away with the decline of Roman law and the rise of different legal systems in Europe.