4. Under our present system tutors are appointed at Rome by the prefect of the city, or the praetor, according to his jurisdiction, and, in the provinces, by the praesides after inquiry; or by an inferior magistrate, at the command of the praeses, if the property of the pupil is only small.
5. But by one of our constitutiones, to do away with these distinctions of different persons, and to avoid the necessity of waiting for the order of the praeses, we have enacted, that if the property of the pupil or adult does not exceed five hundred solidi, tutors or curators shall be appointed by the defensores of the city, acting in conjunction with the holy bishop, or by other public persons, that is, by the magistrates, or, in the city of Alexandria, by the judge; and legal security must be given according to the terms of the same constitutio, that is to say, at the risk of those who receive it.
6. It is agreeable to the law of nature that the persons under the age of puberty should be under tutelage, so that persons of tender years may be under the government of another.
7. As tutors administer the affairs of their pupils, they may be compelled to account, by the actio tutela, when their pupils arrive at puberty.
XXI. Authority of Tutors.
In some cases it is necessary that the tutor should authorize the acts of the pupil, in others not. When, for instance, the pupil stipulates for something to be given him, the authorization of the tutor is not requisite; but if the pupil makes the promise, it is requisite; for the rule is, that pupils may make their condition better, but may not make it worse, without the authorization of their tutor.
And therefore in all cases of reciprocal obligation, as in contracts of buying, selling, letting, hiring, bailment, and deposit, if the tutor does not authorize the pupil to enter into the contract, the person who contracts with the pupil is bound, but the pupil is not bound.
1. Pupils, however, cannot, without the authorization of the tutor, enter on an inheritance, demand the possession of goods, or take an inheritance given by a fideicommissum, even though to do so would be to their gain, and could involve them in no risk.
2. A tutor who wishes to authorize any act, which he esteems advantageous to his pupil, should do so at once while the business is going on, and in person, for his authorization is of no effect if given afterwards or by letter.
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