SUPERVISIÓN DE CASOS.

The evidence presented so far shows that the alienations performed or authorized by a legal guardian will have the same consequences as those carried out by an owner who has the potestas alienandi. There are moreover several texts which show the broad faculties to administer and transfer ownership of legal guardians, leaving little room for doubt concerning the broad scope of their potestas

alienandi79_{. Considering moreover that legal guardians would transfer the iustum}

dominium, it appears that their faculty to dispose stems from the ius civile and that

it would have been acknowledged since a very early stage. This idea, however, was not consistent with the view of some scholars who considered that the ius

civile would have precluded any form of direct representation. The point was

even more problematic considering that the broad faculties of legal guardians would seem to allow them to carry out formal acts in order to transfer ownership such as the mancipatio or the in iure cessio, which would imply that already in a primitive stage Roman law knew some forms of ‘direct representation’. Mitteis came up with an alternative explanation for this, declaring that the curator furiosi would have had a ‘quasi-dominical power’ (quasi-dominikale Gewalt) which would enable him to alienate the lunatic’s property even by mancipatio80_{. Mitteis points}

out to the well-known text of the Law of the Twelve Tables “Si furiosus escit,

adgnatum gentiliumque in eo pecuniaque potestas esto” (Tab. 5.7a) to confirm the

existence of this power over the lunatic. This fragment, however, only grants a

potestas over the person of the lunatic and his pecunia, which would not seem to

include his res mancipi81_{. In fact Lenel seems to have been willing to accept only} the possibility that a curator furiosi could transfer ownership over res nec mancipi82_,

for which he probably had this text in mind. In order to overcome this clear objection, Mitteis claimed that jurists would have certainly extended this rule to the familia of the lunatic83_{, but he is not capable of bringing any further evidence}

on the point.

The very feeble ground on which the ideas of Mitteis were based contrasts with the great enthusiasm with which scholars received them84_{, perhaps due to}

the fact that it was the only way to uphold the traditional interpretation regarding

79 _{See regarding the curator furiosi e.g. Gai 2,64; D. 40,1,13 (Pomp. 1 ex Plautio); D. 27,10,17}

(Gai. 1 de manumissionibus); D. 47,2,57,4 (Jul. 22 dig.).

80 _{Mitteis, Römisches Privatrecht (1908), p. 210.}

81 _{This is the traditional view, but Diliberto, Cura furiosi (1984), p. 85-96 claims that ‘pecunia’}

could cover more than res nec mancipi in this text.

82 _{Lenel, Paling. (1889) II, p. 511 n. 7: “nec mancipi sc.”}

83 _{Mitteis, Römisches Privatrecht (1908), p. 210 n. 18.}

84 _{See e.g. Kniep, Gai Institutionum (1912) II, p. 236; Siber, Verwaltungsrecht (1917), p. 83-84;}

Siber, Römisches Recht (1928) II, p. 413; Guarino, Notazioni IV-V (1949), p. 194-198; Burdese, Lex commissoria (1949), p. 168-169; Burdese, Autorizzazione (1950), p. 14-15; Rabel, Grundzüge (1955), p. 184-185; Gallo, Osservazioni sulla signoria (1956), p. 212; Gallo, Potestas e Dominium (1970), p. 55; Weimar, Eigentumsübergang (1993), p. 551; Perani,

OWNERSHIP OVER THE ADMINISTERED GOODS? noting that already Lenel75 _{thought that the text referred to a case where the}

lunatic’s piece of land was not lawfully purchased (<non> legitime mercaretur). While the specific reference to the unlawfulness of the alienation is not expressed in the current form of the text76_{, it appears highly probable that it is due to the}

fact that the fundus was alienated by resorting to the traditio instead of the

mancipatio, which would have granted the acquirer the same position as if the traditio had been performed by an authorized owner. The fact that only a possessio ad usucapionem was granted in this case may have escaped the eyes of Justinian’s

commissioners, who would have been more interested in preserving the rules expressed by Julian regarding the plurality of curatores.

A similar reconstruction can be made regarding D. 27,10,7,1, since we are not informed of the underlying reason behind the failure in the transfer of Quiritary ownership. Lenel suspects that the original text would have reported that ownership was unlawfully alienated (<non> legitimo modo alienavit), perhaps a case where a res mancipi was not conveyed through mancipatio, because otherwise the buyer would have obtained the iustum dominium77_{. Accordingly, both}

D. 27,10,7,1 and D. 27,10,7,3 would have been subject to corrections regarding the validity of the alienation by the curator. It is most likely that the author would have therefore analysed the alienation by a curator who not only had given no

satisdatio, but also alienated in way which did not grant the dominium ex iure Quiritium, probably by conveying a res mancipi through traditio. This would

explain better the resulting formula, and particularly the role of the exceptio: the lunatic would remain Quiritary owner of the delivered objects, which would later pass to his heirs, who decide to make use of the rei vindicatio, being however repelled with the exceptio si non curator vendiderit. This defence would therefore be an adaptation of the exceptio rei traditae et venditae, but since it was not the owner himself who sold and delivered, reference is made to the intervention of the

curator78_{. In other words, the defence was not granted because the alienation was}

performed by a legal guardian, but because there was a particular obstacle for the transfer of ownership, which in D. 27,10,7,1 and D. 27,10,7,3 was the traditio of a res mancipi. This would explain the exceptional position of the exceptio si non

curator vendiderit in Roman law and why it is not to be found more often in cases

where a legal guardian would transfer ownership. Only the omission by the

curator in granting a cautio would neutralize the claim to the exceptio si non curator vendiderit, thus showing the relevance in the eyes of the praetor of duly granting

this surety, which does not exclude the application of a general triplicatio doli in turn.

75 _{Lenel, Paling. (1889) I, col. 375 n. 4.}

76 _{Lenel, Paling. (1889) I, col. 375 n. 3.}

77 _{Lenel, Paling. (1889) I, col. 375 n. 1.}

78 _{Lenel, EP (1927), p. 511 n. 11; Gonvers, L’exceptio (1939), p. 92. According to these}

authors, the adapted version of the exceptio rei venditae et traditae would be “si non curator

Ai Ai fundum quo de agitur No No vendidit et tradidit”.

4. Ownership over the administered goods?

The evidence presented so far shows that the alienations performed or authorized by a legal guardian will have the same consequences as those carried out by an owner who has the potestas alienandi. There are moreover several texts which show the broad faculties to administer and transfer ownership of legal guardians, leaving little room for doubt concerning the broad scope of their potestas

alienandi79_{. Considering moreover that legal guardians would transfer the iustum}

dominium, it appears that their faculty to dispose stems from the ius civile and that

it would have been acknowledged since a very early stage. This idea, however, was not consistent with the view of some scholars who considered that the ius

civile would have precluded any form of direct representation. The point was

even more problematic considering that the broad faculties of legal guardians would seem to allow them to carry out formal acts in order to transfer ownership such as the mancipatio or the in iure cessio, which would imply that already in a primitive stage Roman law knew some forms of ‘direct representation’. Mitteis came up with an alternative explanation for this, declaring that the curator furiosi would have had a ‘quasi-dominical power’ (quasi-dominikale Gewalt) which would enable him to alienate the lunatic’s property even by mancipatio80_{. Mitteis points}

out to the well-known text of the Law of the Twelve Tables “Si furiosus escit,

adgnatum gentiliumque in eo pecuniaque potestas esto” (Tab. 5.7a) to confirm the

existence of this power over the lunatic. This fragment, however, only grants a

potestas over the person of the lunatic and his pecunia, which would not seem to

include his res mancipi81_{. In fact Lenel seems to have been willing to accept only} the possibility that a curator furiosi could transfer ownership over res nec mancipi82_,

for which he probably had this text in mind. In order to overcome this clear objection, Mitteis claimed that jurists would have certainly extended this rule to the familia of the lunatic83_{, but he is not capable of bringing any further evidence}

on the point.

The very feeble ground on which the ideas of Mitteis were based contrasts with the great enthusiasm with which scholars received them84_{, perhaps due to}

the fact that it was the only way to uphold the traditional interpretation regarding

79 _{See regarding the curator furiosi e.g. Gai 2,64; D. 40,1,13 (Pomp. 1 ex Plautio); D. 27,10,17}

(Gai. 1 de manumissionibus); D. 47,2,57,4 (Jul. 22 dig.).

80 _{Mitteis, Römisches Privatrecht (1908), p. 210.}

81 _{This is the traditional view, but Diliberto, Cura furiosi (1984), p. 85-96 claims that ‘pecunia’}

could cover more than res nec mancipi in this text.

82 _{Lenel, Paling. (1889) II, p. 511 n. 7: “nec mancipi sc.”}

83 _{Mitteis, Römisches Privatrecht (1908), p. 210 n. 18.}

84 _{See e.g. Kniep, Gai Institutionum (1912) II, p. 236; Siber, Verwaltungsrecht (1917), p. 83-84;}

Siber, Römisches Recht (1928) II, p. 413; Guarino, Notazioni IV-V (1949), p. 194-198; Burdese, Lex commissoria (1949), p. 168-169; Burdese, Autorizzazione (1950), p. 14-15; Rabel, Grundzüge (1955), p. 184-185; Gallo, Osservazioni sulla signoria (1956), p. 212; Gallo, Potestas e Dominium (1970), p. 55; Weimar, Eigentumsübergang (1993), p. 551; Perani,

the evolution of direct representation. The idea of a ‘quasi-dominical power’ was even applied by scholars to other legal guardians, such as the curator prodigi or the

tutor impuberum85_{, which had not been envisaged by Mitteis at all. Kübler, for}

instance, claimed that the tutor was not included among the cases mentioned in Gai 2,64 because all of the individuals mentioned in this text were non domini, while the tutor would actually act in the capacity of an owner86_{. The reason for}

the expansion of this theory was that it was adopted by some scholars dealing with the structure of the primitive Roman family. Bonfante, for instance, claimed that the potestas of the curator furiosi would have the same content as that exercised by the paterfamilias over his wife, slaves and filii, and accordingly he would be the owner of the lunatic’s property. This opinion is followed by other scholars, such as Guarino87_{. Moreover, Arangio-Ruiz}88 _{and Kaser}89 _{have stressed}

that in pre-classical times there would be no possible distinction between ownership and the power to alienate – a thought certainly inspired by the theory of a primitive prohibition of direct representation – which implies that those in charge of administering other people’s property would actually have to become owners themselves.

Despite the general claims on the point, little evidence has been brought to support the idea of a ‘quasi-ownership’ of the legal guardian. For example, it is often argued that the reference to the legal guardian acting ‘loco domini’ would be a clear indication of the fact that he would originally have been considered owner of the administered goods. This can hardly be seen as convincing evidence considering that this expression only indicates that legal guardians are regarded to take the place of the owner – the lunatic or ward – who therefore keeps his ownership over the administered goods. Moreover, some scholars have claimed that the curator furiosi would become owner of the administered goods because the state of mental insanity would have been regarded in Rome as incurable and definitive90_{, a claim which has however been discarded by later studies on the}

subject. Regarding the views on the structure of the primitive Roman family and the position of the paterfamilias, it cannot be discussed here which is the most plausible theory on the subject. However, it is worth noting the clear anachronism of looking for ‘ownership’ and ‘ownership-like’ figures in pre-

85 _{Siber, Verwaltungsrecht (1917), p. 83; Arangio-Ruiz, Erede e tutore (1946 [1930]), p. 149-}

167; Levy-Bruhl, La tutelle (1948), p. 318-323; Guarino, Notazioni IV-V (1949), p. 194- 198; Rabel, Grundzüge (1955), p. 184-185; Weimar, Eigentumsübergang (1993), p. 551; Perani, Pignus distrahere (2014), p. 25. See for further references Kaser, Ehe und conventio (1950), p. 91 n. 79.

86 _{Kübler, Vormundschaftliche Gewalt (1939), p. 83.}

87 _{Guarino, Notazioni I-III (1948), p. 21-46; Guarino, Notazioni IV-V (1948-1949), p. 194-}

217.

88 _{Arangio-Ruiz, Erede e tutore (1946 [1930]), p. 164. This idea is followed by Perani, Pignus}

distrahere (2014), p. 51.

89 _{Kaser, Inhalt patria potestas (1938), p. 70 ff.; Mores Maiorum (1939), p. 35 ff.; Conventio in}

manu (1950), p. 91 ff.

90 _{Guarino, Notazioni IV-V (1949), p. 197-198.}

classical Roman law, projecting thereby notions of the late Republic into the analysis of earlier terms such as potestas. The notion of ‘potestas’ has in fact a vague content, and for instance Capogrossi Colognesi considers that it only referred to the power over people, while the idea of ‘mancipium’ would be the predecessor of the idea of ‘dominium’91_{. This author would moreover emphasize that the potestas}

of the curator furiosi cannot be seen as involving dominium over the assets of the lunatic92_{. Archi and Lanza would also exercise caution when approaching the}

notion of potestas in relation to legal guardians in the Twelve Tables, avoiding granting it a specific technical meaning93_.

Leaving aside these specific points, the more arguable aspect of the theory of a ‘quasi-ownership’ of legal guardians is that it was built on preconceptions concerning the evolution of ‘direct representation’ in Roman law which have no support in the sources. Accordingly, the starting point from which this idea was brought into life seems to have become obsolete. This is why Diliberto, who approached the origins of the cura furiosi without pretending to defend any specific theory of direct representation, reached very different conclusions concerning the significance of the potestas of this legal guardian. In fact, he observed that the rights of the lunatic were not extinguished or absorbed by his

curator94_{, which would imply that the transfer of ownership performed by him}

would indeed take place a non domino95_{. It is therefore no wonder that the lack of}

evidence to hold that the curator furiosi acted as a dominus has led more and more scholars to simply consider him as acting as a non-owner96_.

Finally, it should be borne in mind that, even if at the time of the Twelve Tables the potestas of legal guardians would comprise an ownership-like power, evidence suggests that already at a very early stage Roman jurists granted them the potestas alienandi over the administered goods. It is for instance noteworthy that legal guardians were able to transfer the dominium ex iure Quiritium not only through traditio, but also through formal ways of transferring ownership97_{, being}

moreover regarded as acting domini loco. Since legal guardians could exercise such

91 _{Capogrossi Colognesi, Struttura della proprietà (1969) I, p. 464-465. See on this point}

Amunátegui, Potestas manus (2012), p. 60, 84-85.

92 _{Capogrossi Colognesi, Struttura della proprietà (1969) I, p. 145 n. 246: “Si consideri come}

neppure in diritto classico si possa tradurre, in relazione a tale fattispecie, il termine potestas in dominium sulla pecunia, né, per il furiosus si possa parlare anche allora di alcun altro tipo di potere familiare all’infuori di una generica potestas”.

93 _{Archi, Curatela (1981 [1962]), p. 181: “In proposito tuttavia conviene non dimenticare che}

potestas è termine che indica una nozione di potere colta nella sua realtà effettuale, senza

pretesa di una precisa qualificazione giuridica. In altre parole, dall’in potestate esse non è possibile dedurre con rigida formula la situazione giuridica nella quale si trova la persona o la res, su cui il potere si esercita. E ciò soprattutto nell’epoca decemvirale, anteriore all’elaborazione delle categorie dovute alla giurisprudenza repubblicana”. Lanza, Furiosus (1990), p. 31 ff.

94 _{Diliberto, Cura furiosi (1984), p. 44-48, 101-106.}

95 _{Diliberto, Cura furiosi (1984), p. 88.}

96 _{See e.g. Albanese, Atti negoziali (1982), p. 355.}

OWNERSHIP OVER THE ADMINISTERED GOODS? the evolution of direct representation. The idea of a ‘quasi-dominical power’ was

even applied by scholars to other legal guardians, such as the curator prodigi or the

tutor impuberum85_{, which had not been envisaged by Mitteis at all. Kübler, for}

instance, claimed that the tutor was not included among the cases mentioned in Gai 2,64 because all of the individuals mentioned in this text were non domini, while the tutor would actually act in the capacity of an owner86_{. The reason for}

the expansion of this theory was that it was adopted by some scholars dealing with the structure of the primitive Roman family. Bonfante, for instance, claimed that the potestas of the curator furiosi would have the same content as that exercised by the paterfamilias over his wife, slaves and filii, and accordingly he would be the owner of the lunatic’s property. This opinion is followed by other scholars, such as Guarino87_{. Moreover, Arangio-Ruiz}88 _{and Kaser}89 _{have stressed}

that in pre-classical times there would be no possible distinction between ownership and the power to alienate – a thought certainly inspired by the theory of a primitive prohibition of direct representation – which implies that those in charge of administering other people’s property would actually have to become owners themselves.

Despite the general claims on the point, little evidence has been brought to support the idea of a ‘quasi-ownership’ of the legal guardian. For example, it is often argued that the reference to the legal guardian acting ‘loco domini’ would be a clear indication of the fact that he would originally have been considered owner of the administered goods. This can hardly be seen as convincing evidence considering that this expression only indicates that legal guardians are regarded to take the place of the owner – the lunatic or ward – who therefore keeps his ownership over the administered goods. Moreover, some scholars have claimed that the curator furiosi would become owner of the administered goods because the state of mental insanity would have been regarded in Rome as incurable and definitive90_{, a claim which has however been discarded by later studies on the}

subject. Regarding the views on the structure of the primitive Roman family and the position of the paterfamilias, it cannot be discussed here which is the most plausible theory on the subject. However, it is worth noting the clear anachronism of looking for ‘ownership’ and ‘ownership-like’ figures in pre-

85 _{Siber, Verwaltungsrecht (1917), p. 83; Arangio-Ruiz, Erede e tutore (1946 [1930]), p. 149-}

167; Levy-Bruhl, La tutelle (1948), p. 318-323; Guarino, Notazioni IV-V (1949), p. 194- 198; Rabel, Grundzüge (1955), p. 184-185; Weimar, Eigentumsübergang (1993), p. 551; Perani, Pignus distrahere (2014), p. 25. See for further references Kaser, Ehe und conventio (1950), p. 91 n. 79.

86 _{Kübler, Vormundschaftliche Gewalt (1939), p. 83.}

87 _{Guarino, Notazioni I-III (1948), p. 21-46; Guarino, Notazioni IV-V (1948-1949), p. 194-}

217.

88 _{Arangio-Ruiz, Erede e tutore (1946 [1930]), p. 164. This idea is followed by Perani, Pignus}

distrahere (2014), p. 51.

89 _{Kaser, Inhalt patria potestas (1938), p. 70 ff.; Mores Maiorum (1939), p. 35 ff.; Conventio in}

manu (1950), p. 91 ff.

90 _{Guarino, Notazioni IV-V (1949), p. 197-198.}

classical Roman law, projecting thereby notions of the late Republic into the analysis of earlier terms such as potestas. The notion of ‘potestas’ has in fact a vague content, and for instance Capogrossi Colognesi considers that it only referred to the power over people, while the idea of ‘mancipium’ would be the predecessor of the idea of ‘dominium’91_{. This author would moreover emphasize that the potestas}

of the curator furiosi cannot be seen as involving dominium over the assets of the lunatic92_{. Archi and Lanza would also exercise caution when approaching the}

notion of potestas in relation to legal guardians in the Twelve Tables, avoiding granting it a specific technical meaning93_.

Leaving aside these specific points, the more arguable aspect of the theory of a ‘quasi-ownership’ of legal guardians is that it was built on preconceptions concerning the evolution of ‘direct representation’ in Roman law which have no support in the sources. Accordingly, the starting point from which this idea was brought into life seems to have become obsolete. This is why Diliberto, who approached the origins of the cura furiosi without pretending to defend any specific theory of direct representation, reached very different conclusions concerning the significance of the potestas of this legal guardian. In fact, he observed that the rights of the lunatic were not extinguished or absorbed by his

curator94_{, which would imply that the transfer of ownership performed by him}

In document Zeig, Jeffrey k. - [1991] Terapia Cortada a La Medida (página 78-85)