Chapter IV
Guardianship
Guardianship. In the Institutes of Justinian under the titles of tutela and cura are considered two several institutions designed by the law for the protection of persons who, though not subject to parental control, are nevertheless on account of immaturity of years or for other like cause incompetent to be in all respects their own masters. The first of these, tutela, related to young persons alone, and ended with puberty. The second, in the case of young persons, extended from the fourteenth to the twenty-fifth birthday, and was also applicable to the case of lunatics and prodigals.
In Roman-Dutch Law there is one kind of minority only; which, as we have seen, now ends by statute at twenty-one. The distinction between tutela and cura has therefore largely disappeared.[1] But the terms tutor and curator are still retained to denote various cases of control.
In this chapter we shall consider: (1) the different kinds of guardianship and how guardians are appointed; (2) who may be guardians; (3) the powers, rights, and duties of guardians; (4) actions arising out of guardianship; (5) how guardianship ends.
Section 1.—The Kinds of Guardians and the Appointment of Guardians
The kinds of guardians:
In Roman Law three principal kinds of guardians were recognized: (1) Tutores testamentarii, i.e. guardians appointed to minors in his power by the father or other- ↑ Gr. 1. 7. 3 and Sohorer ad loc.; Voet, 26. 1. 7; 27. 10. 1; V. d. K, Th. 111.
devoid of effect. See Groenewegen, loc. cit., and the same author's note ad Gr. 1. 8. 5, and Voet, 4. 4. 46–8. There is a decision in Neostadius (Supr. Cur. Decis., Dec. 80) to the effect that a sale by a minor confirmed by oath holds good. But Van Leeuwen concludes: facilior est responsio nullum jusjurandum ejus efficaciae esse, ut negotium actumve de jure invalidum confirmare queat. In the modern law the question does not arise.
