Curators were persons appointed either by law or by the magistrate to look after the property of certain classes of people, and to prevent its being squandered, because they were unfit or unable to properly take charge of it themselves. Those classes are mainly four: minors or adulescentes (i. e. persons who were sui iuris and between the age of pubertytwelve or fourteen [Gaius, i. 196; Inst.i. 22, pr.]and twenty-five years); lunatics; interdicted prodigals; and a miscellaneous class, the cura of which was considerably later in origin.
The cura of minors is to be attributed to the fact that when a young person who was sui iuris reached puberty, and escaped from the supervision of his guardian (see Tutela), he was regarded as having attained his full stature, intellectual no less than physical; he might marry and become a paterfamilias; he was liable to military service, entitled to vote in the comitia, and competent to hold public office; and he had the complete management of his own affairs. But it was felt to be a matter of necessity to give him some legal protection against designing and unscrupulous persons, for it became clear that his indiscretion and ignorance of business would frequently lead to his being overreached; and this was done, without interfering with the principle that full legal capacity was attained with puberty, by the Lex Plaetoria, passed certainly before B.C. 183, for it is mentioned by Plautus (Pseud. i. 3, 69), who died in that year. This statute (which appears to have first established the distinction between minority and full age) protected minors by subjecting any one who fraudulently overreached them to a iudicium publicum or prosecution ( de Off. iii. 15. 61), entailing a pecuniary fine and infamia on conviction; and after the introduction of exceptiones by the praetor, a minor who was fraudulently induced to enter into a contract could protect himself against action brought thereon by pleading the exceptio legis Plaetoriae. It being unlikely that in the face of this stringent procedure any one would have any dealings with minors whatever, the statute (Capitol. Macr.10) apparently went on to provide that minors who wished to contract or deal with other persons, especially in the way of stipulation (Priscian, viii. 4; xviii. 9) and loan, should be compellable to receive a curator on their application, by whose assent to the transaction the penal consequences of the law should be avoided.
The principle of the Lex Plaetoria was carried still further by the praetor, who by means of in integrum restitutio protected minors generally against indiscretion causing them proprietary loss (laesio); he would set aside transactions into which they had entered, not only on the ground of fraud, but on a consideration of all the circumstances of the case, provided application were made to him with in a year after the attainment of majority. [p. 441]
The Emperor Marcus Aurelius (Gaius , Epit.1 Epit., 8) seems to have extended the scope of the cura of minors by providing that a minor might, on application to the proper magistrate, obtain a permanent curator to look generally after his property and aid him with advice. The principle was that he could not be compelled to have a general curator unless he pleased, except where he was involved in litigation; when a person who owed him money wished to discharge his debt and obtain a release (Dig. iv. 4, 7, 2); and possibly where he had disregarded the advice given to him by his guardian, on reaching puberty, to get one appointed for him. But apparently most minors were induced by the convenience of the system to have general curators to assist and advise them (Ulpian, Reg.12 Reg., 4; Dio Cass. lii. 20).
The curators of minors were always appointed by the magistrate; a testamentary appointment in itself was void, though the magistrate would usually confirm it by nominating the same person ( Inst.i. 23 Inst., 1; cf. Dio Cassius, xliv. 35); and, according to rule, the minor had to apply for a curator himself. The munus was a public one, and could not be declined except on specific grounds, carefully enumerated in the authorities ( Inst.i. tit. 25); many curators had to give security that they would diligently look after the interests intrusted to them; and if suspected of malversation or negligence, they could be removed by the magistrate, and in cases of fraud were liable to the suspecti crimen, a quasi-criminal prosecution ( Inst.i. tit. 26).
A minor was fully competent to perform legal acts, such as the conveyance of property or the making of contracts; but whether such legal acts had their full usual effect or not depended on whether they were sanctioned by the curator. Both alienations and contracts were prim facie binding on him; but against both, if they were seriously prejudicial, or the curator's consensus had not been given, he could get himself in integrum restitutus by the magistrate (Cod. ii. 22, 3); and if the curator had not assented to a contract, he could not be compelled to disburse anything from the minor's property in discharge of it, or to pay costs or damages of actions brought in respect thereof by the other party. But a series of imperial enactments (Cod. v. 71, 16; v. 37, 22) placed him under very stringent regulations in respect of alienation of the ward's property, which as a general rule was not allowed without permission from a magistrate. If a minor wished to give himself in adrogation the curator's consent was necessary.
The cura of furiosi (lunatics and idiots) and interdicted prodigals or spendthrifts originated with the Twelve Tables, which placed furiosi under the cura of their nearest agnates, or, if there were no agnates, of their gentiles. Similarly the near relations of a prodigus might petition the magistrate for his interdiction from the management of his own affairs, and his subjection to the cura of his nearest agnates, though only if his property had come to him by the intestacy of his own father. In default of these legitimi curatores, one would be appointed for such persons by the magistrate ( Inst.i. 23 Inst., 3).
In the time of Justinian other classes of persons were able to get a general curator by application to the magistrate, especially those suffering from weak health, impaired mental faculties, or bodily infirmitye. g. the deaf and dumb ( Inst.i. 23 Inst., 4). Similarly it would sometimes happen that an impubes would have a curator as well as a guardian e. g. if there was litigation between himself and the latter ( Inst.i. 21 Inst., 3), or if the latter was unfit or temporarily unable to discharge his duties (ib. 23 Inst., 5).
It will appear from what has been said that between a guardian and a curator an essential distinction lies in this, that the latter was especially intended to look after the ward's proprietary interests, whereas the former was personae, non rei datus.
The word cura has also other legal applications: (1) cura bonorum, as in the case of the goods of an insolvent debtor, which are secured for the benefit of his creditors;
(2) cura bonorum et ventris, in the case of a woman being pregnant at the death of her husband;
(3) cura hereditatis, where there is a dispute as to who is the heres of a person, and his supposed child is under puberty;
(4) cura hereditatis iacentis, the charge of an inheritance of which the apparent heir has not yet declared his acceptance;
(5) cura bonorum absentis, in the case of property of an absent person who had appointed no manager of it.