Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

law did, but, while in Rome this extended only to the immediate family, in the English system it is wider and applies to relations with remoter kin of the legitimating parent. Unlike the Roman, legitimation in England can be effected only by the marriage of the parents, and, again unlike the Roman, it is effected by the marriage ipsofacto^ so that there is no question of consent of the child or of others who may be interested, e.g., children of a former marriage.

Many other common law jurisdictions, in particular Australian and American, had accepted the principles of adoption and legitimation before it was accepted in England. As might be expected, the rules are far from uniform, as to the necessary conditions and as to the effects.1

6. MINORITY AND GUARDIANSHIP

In the Roman law and in the common law a very young child is not criminally responsible. As regards civil liability, the fact of minority itself is no defence in an action in tort, except where the action in tort is an indirect attempt to enforce a contract not binding on the minor.2 But in Roman law, in which an action on delict is essentially an action for a penalty in respect of a wrong done,3 it is clear that no such action will lie if the child is so young that it is impossible to attribute to him a culpable state of mind, and it is probable that the age, or degree of development, might vary with different wrongs.4 In the common law authority is scanty: so far as general propositions go in the

1 See, as to legitimation, Fitzpatrick in Journal of Comparative Legislation, N.S. vi (1905), pp. 22-45; a s t o adoption, Stanley Smith, ibid. 3rd ser. iii (1921), pp. 165—177, and as to adoption in American jurisdictions, Notre Dame Lawyer, January 1932, pp. 223-237.

2 Jennings v. Rundall (1799), 8 T.R. 335; Burnard v. Haggis (1863), 14 C.B.N.S. 45. 3 Pp. 344Sqq., post.

4 D. 9. 2. 5. 2; 44. 4. 4. 26; 47. 2. 23, etc. For the texts and an account of the growth of the rule from a primitive view which ignored the element of guilt, Pernice, Labeo, i. pp. 226 sqq.

books, the age of the defendant is immaterial: 'the law knows of no distinction between infants of tender and of mature years'.1 But what is negligent in an adult might not be in a child, so that damage done by him would not be tortious as it would in an adult ;2 and in view of the fact that when the matter arises the other way and the child.is plaintiff, what would be contributory negligence in an adult is not necessarily such in a child,3 it seems probable that the rule in our law is in practice the same as that in Rome, and that a child would not be held liable for a tort which involves as an essential ingredient a particular state of mind, if he was so young as to be, for that reason, incapable of possessing that state of mind.4

As to transactions by a minor the two systems are extremely different. In our law full age is fixed at twentyone, except that marriage can be contracted at sixteen. In Roman law the important age, for at least classical and earlier law, was that of puberty, ultimatelyfixedat fourteen for males. It is plain that that age does not represent the acquisition of an adult judgement. Indeed, that is not the basis. Great restrictions were set on the child's power of binding himself or of alienating property up to that time, because till that age he could have no children and his tutores were normally the relatives, in whose interest the scheme was originally devised. They had till then a close interest in the property: they took it if the child died. This was not so outrageous as wardship in knight-service, which was treated as an opportunity to bleed the ward's

guardian, liable for negligently failing to control the child and, if that is impossible, award the victim out of the child's property such sum as seems fair and equitable in the circumstances. See B.G.B. §§828-829; Swiss Code of Obligations, §54; Italian Civil Code, art. 2047. This treatment seems to have come, via natural law, from old Germanic ideas.

estate, but it differed widely from guardianship in socage. There the guardianship was in the next of kin who could not inherit. In Rome it was in those who inherited if the child died, which enabled Sir John Fortescue to score a point in his De Laudibus Legum Angliae by saying (ch. 44) that the Roman rule was ' quasi agnum committere lupo ad devorandum*. But by the time of classical law tutela had become guardianship in the modern sense with adequate remedies against the tutor*, and there were other kinds of tutor appointed by the will of the paterfamilias or by the magistrates.

On the same principle, guardianship {tutela) ended at the same age as did the incapacitation. However, a boy of fourteen cannot look after his own affairs, and from early times there was protection {cura) for young persons up to the age of twenty-five. But there is much controversy about cura: comparison of the two systems is best provided by the impubes. Under the Roman law any transaction (contract or conveyance) made by the child without the auctoritas of his tutor did not bind him, but did bind the other party. If there was auctoritas the transaction was valid (though it seems that here too it could be set aside for cause shown) and the guardian {tutor) had wide powers of acting on behalf of the child into which it is not necessary to go. These were subsidiary: normally the child acted, with auctoritas. This works justly, for the child who has acted without auctoritas cannot enforce the contract unless he is prepared to do his part, nor recover what he has handed over without restoring what he has received. There is, however, the disadvantage to the other party that the child is responsible only to the extent to which he is still enriched at the time of the action, so that the risks are on the other party. Thus if a pupillus bought and paid for a horse, and received it, the horse was his and the money had not ceased to be his. But if he claimed it he must restore the horse, unless it had ceased to exist without

though unlike the Roman law. In Stocks v. Wilson1 it was held that the property in unnecessary goods passed to an infant even in a case where the price had not been paid, and the equitable remedy of restitution is of limited scope. In Roman law the pupil could always recover his money on restoring the goods, and even without doing so, if they had ceased to exist without enriching him and not by his fault.2 Otherwise the Praetor protected the acquirers. But there was no question of the infant's losing his right by reason of such a change in circumstances as made it impossible to restore things to their original state, or by the acquisition of rights by some third party.

In the large class of contracts of a minor which are voidable in our law, e.g. those involving continuing interests, leases, partnerships, etc., our law allows recovery (on due avoidance) of money paid only if he has not enjoyed any benefit under the contract, that is, if he has received no consideration under it. If he has and he withdraws, he forfeits what he has already paid.3 The rule is well illustrated by Everett v. Wilkins.* Under an agreement for partnership the minor was to be boarded for pay. He was to pay, and did pay, a deposit, but he was to draw no profit from the concern till the whole purchase money was paid. The minor renounced the partnership. It was held that he could recover the deposit, as he had had as yet no enjoyment, less a payment for the board and lodging which was treated as a distinct and collateral contract. Roman law would apparently have given the same result; he had not alienated the money he had paid, so that he could recover it, but he would be met by an exceptio doli unless he allowed for the benefit he had received. But our law, involving forfeiture of what has been paid, if there

1 [ i 9 i 3 ] a K . B . 2 3 5 .

2 D. 12. 6. 13. 1; h.t. 29; 18. 5. 7. 1, etc. The texts are not very explicit, but this seems to follow from the fact that his alienation is void.

3 Holmes v. BIogg(i%ij), 8 Taunt. 508; Corpev. Overton (1833), 10 Bing. 252. 4 (1874), 29 L.T. (N.S.) 846.

make a binding settlement upon marriage with the approval of the Court of Chancery (now the Chancery Division), which has immemorially exercised on behalf of the Crown, as being the guardian of all infants, a paternal jurisdiction. Where our law has considered it of vital importance that there should always be someone with power to alienate, as in the case of the legal estate in land, steps have been taken to ensure that the property shall not be vested in the infant,1 but in someone of full age who holds it on trust for him.

The Roman law had however another type of minority: persons under twenty-five were not indeed under disabilities at law, but could get transactions set aside if the Court thought they had been led into them by youthful inexperience (inconsulta facilitas) though there was no fraud. Curatores could be appointed to them with their consent, who were a protection rather to third parties than to the minor. In later law the protection was gradually increased until a minor under a curator was in a position much like that of a ward under tutela^ with differences of

terminology. He is curator^ not tutor^ and gives consensus^ not auctoritas. At least in later law, he administers the affairs of the minor. But the Emperor could give males of twenty and females of eighteen the rights of full age (yenia aetatis)? a relief similar to, but obviously much wider than that given by Chancery under our law.

A remarkable institution of the earlier Roman law, merely formal even in classical law, and obsolete before Justinian, is the lifelong wardship of women. It is ascribed to levitas animi, but Gaius has the grace to admit that this explanation 'magis speciosa videtur quam vera\3 Its real explanation is in the original conception oftutela itself. This

1Law of Property Act, 1925, Sect. 1 (6).

2D. 4. 4. 3. pr.; C. 2. 44. 1. Grants are still made under RomanDutch law in Ceylon and the Orange Free State; see Lee, Introduction to

Roman-Dutch Law, 5th ed. pp. 43, 44.

3 G. 1. 144, 190.

was for the protection of the property in the interest of the relatives who would succeed if the person died without issue capable of succeeding (sui heredes). As a woman could have no sui heredes, for her children had no right of succession to her at civil law, the interest of the relatives was lifelong and so therefore was the tutela. With the change in the conception which began in mid-Republic the institution became an anachronism and it was gradually lessened of content till it disappeared. Our law has never had this institution, but reached male control of a woman's property by a different road, partly by the original law of the lord's right of marriage in knight-service, which seems to have applied at first only to female heirs, and partly by the control of her husband, who was for practical purposes owner of her freehold land during her marriage and absolute owner of her personalty.1 This attitude was very different from that of the Roman law, under which her marriage made no difference at all to her property rights and her husband had, apart from the ancient manus^ no interest at all in her property, nor had she in his. But for many centuries there were her tutores in the background whose authority was necessary for certain of her formal acts.

7. JURISTIC PERSONALITY2

As to corporate personality we ought not to expect to find much difference between Roman law and ours, since our theory of corporations seems to be mainly derived from medieval interpretations of the Roman law. The Romans had no such word as personalitas and they did not use the word persona in the technical sense of * rightand dutybearing unit'. It has indeed begun to creep in among the orientals of the late Empire,3 but it does not appear in the Corpus Juris. A persona was simply a human being. A

corporate body is never called a person though it has legal capacities. The nearest word to personality' is caput, but no text speaks of the caput of a corporation. The municipalities had certain powers, e.g. of acquiring property inter vivos and of contracting: they had had them when they were absorbed in the State and they retained them, but this rests on no legal theory: it is older than theorising about law. As new corporations were recognised similar powers were expressly conferred on them. The more uncommercial powers, e.g. of manumitting slaves, and of acquiring by will, were bestowed on them and other corporate bodies piecemeal by various acts of legislation at various dates, the history of which can be found in the manuals; but the Romans never seem to have reached the notion of rights and duties inherent in corporate character.

It is indeed a debated point among Romanists whether in the time of Ulpian they were thought of as anything more than groups of persons, on whom, as groups, certain rights had been conferred by legislation. The populus Romanus was itself, essentially, only a municipality and thus a corporate body in the sense in which any city was, but there seems no trace in historical times of an institutio of the Roman people as heres by anyone subject to the Roman State. The only cases of any historical value are of foreign States, the kings or queens of which left their State and property to the Roman people.1 But the State as a corporation plays little part in the law because it settles the questions with which it is concerned by administrative methods, not appealing to its own Courts. And it disappears in the classical age. The sovereignty is no longer in the people: it is in Caesar. And Caesar is a man, possibly what we should call a corporation sole, the fiscus being merely a department of State.2 It is true that the

1 E.g. Cicero, De I. agr. 2. 16. 41.

2 See however, for a very different view, Mitteis, Rom. Privatrecht, PP 347Jff.