Roman Law and the Legal World of the Romans

Status

the law, and it may be helpful to set them out together. A father’s authority over his children is called patria potestas , “fatherly power”; the state of being under this authority is being in potestate , “in power”; and the state of not being in power is being sui iuris , “in one’s own power.” A male who is not in power is also called a pater familias , “father of the family,” even if he has no children and even if he is a child in years. Children in power (of whatever age) are called filius/filia familias , “son/daughter of the family.” Absent a living father, the law made several distinctions based on age. Children younger than seven were by rule inca pable of forming intentions, which meant (among other things) that they could not make contracts or be liable for criminal activity. They might own property, but it would largely be in the hands of a guardian ( tutor ). The guardian could carry out transactions in the child’s name, though he was required to act in his or her best interests and to give security as a guarantee. (When old enough, the child could sue to guarantee that the guardian had done his job [26] .) Depending on circumstances, the guardian might be named in the father’s will, picked from near relatives (the “nearest agnate,” as in intestate inheritance; see Chapter 15), or in the last instance named by a magistrate. Children older than this, but younger than twelve (for girls) or fourteen (for boys), still had the same kind of guardian, but could form intentions. In principle, they could make binding agreements, though these had to be ratified by the guardian. These ages were picked as the typical minimum at which a

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