PRINCIPLES OF ROMAN LAW IN PHILIPPINE JURISPRUDENCE

INTRODUCTORY CHAPTER

NATURE AND EXTENT OF ROMAN LAW

3 Main Legal Systems Adapted by all Countries1. Roman Law – the most lasting and prevailing influence2. Mohammedan or Arabic Law3. Anglo-American Laws

Roman Private Lawo Defines, in concise and consistent terminology, mature rules and a complete system,

logical and firm, tempered with a high sense of equity Roman Law v. Civil Law (jus civile Romanorum)

o Two terms used interchangeablyo Roman Law

Those legal rules and principles which were in force among the Romans without reference to the time when they were adopted

The law compiled under the auspices of the Emperor Justinian and his successors, comprising the Institutes, Code, Digest and Novels, collectively denoted as Corpus Juris Civilis to which all refer now as authority or written reason

o Tribonian and other lawyers (533 AD) – compiled and finished the Corpus Juris Civilis Divisions of Roman Law

1. Public Laws – under such are the political, administrative and public international laws, including criminal law and procedure

2. Private Laws – now known as the “Civil Law”; includes mercantile law, private international law and civil procedure; covers rules defining the rights and duties of the members of the community which arise from their mutual relations and to society for the protection of private interests

ROMAN LAW INFLUENCE IN THE PHILIPPINES Code of Napoleon

o Way for the Spanish Civil Code of Spain to be enacted – adopting the Roman Law Principles

o The Spanish Civil Code took effect in the Philippines on December 7or 8, 1889o The entire Spanish Civil Code was enforced in the Philippines except for the Law on

Marriage and the Law on Family Council o The Spanish Civil Code was enforced in the Philippines during the American regime even

up to the earlier years of Philippine independence Civil Law (as distinguished from Canon Law)

o During the Spanish regime – covers the rules and principles defining the rights and duties of the members of the community which arise from their relations and to society for the protection of their private rights

E.O 48 ( March 20, 1947; President Manuel Roxas)o an act creating the Code Commission to draft the New Civil Code (to codify laws with

Philippine customs as well as the progressive principles of law)

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o the draft of the new code was enacted into law by Congress and approved on June 18, 1949 and took effect 1 year after publication in the OG (August 30, 1950)

o the new code is based on the Civil Code of Spain 1889 which is Spanish and French in origin (CODE COMMISSION – said that since the Philippines had been under the western culture for the last 4 centuries, then it is a rightful beneficiary of the Roman Law

HISTORY OF ROMAN LAW The control and the influence of the Roman Empire, during its peak, encompassed all

nations and when Rome had been the leader of the Western civilization, it had been confronted with problems with (1) defense of lands and (2) administration of justice

The REPUBLICAN FORM OF GOVERNMENT was not able to provide solutions to these problems and caused its downfall giving rise to an empire

Citizenship in Ronqie – considered as membership in a privileged class Emperors – absolute rulers of Rome during the 4th Century Christianity – the state religion Bureaucratic System – for the political unity of the states 2 parts of the History of the Roman Law

a) Pre-Justinian Erab) Justinian Era

Pre-Justinian Period Divided into:

a) Archaic period from the Foundation of Rome (753 BC – 200 BC) An aristocratic nation controlled by the Senate The knowledge of law was limited to the aristocratic class Sarcedos (Highest Priest) – where the Pontiffs Roman Senators – held magistracy and performed public rites and gave advice on the

question of law 12 Tables (written code of laws) – framed by the decemvirs and confirmed as law

bythe Comitia Centuriata; collections of legal principles engraved on metal tablets and set up on the forum

Lex Decemviralis – a law that acquired a great authority and mainly constituted the foundation of all public and private law of the Romans until the time of Justinian

b) Republican Era (200 BC – 30 BC) Law was developed through the rise of jurists De jure Civili (by Quintus Mucius Scaevola) – classified law into law of persons, real

rights and obligationsc) Classical Period (30 BC – 285 AD)

Emperor Augustus Caesar – gave importance to jurists by giving greater authority to their opinions (which were later considered decisions)

Resolutions of the Senate (Senatus Consultum) – where the edicts promulgated by the praetor are found

Institutiones – one of the most important works during this period where legal literature was also produced in abundance

Law schools of Sabinian and Proculian were establishedd) Post Classical Period (285 AD – 534 AD)

Autocratic – form of government The jurists became official advisers known as the Imperial Consiliurn

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Valentinian Law of Citations – where Emperor Theodosius and Valentinian gave official authority to writings of Papinian,Paul and Ulpian, Modestinus and Gaius.

Majority opinion prevails when jurists should not agree on questions of law Legal Education – became important as a degree in law was necessary to government

employment Humanitas – spirit of kindness to neighbors and Christian influence; pervaded the law

The Justinian Codification The event that divided the two periods of the history of the Roman Law The Codification was necessary in order to revise all existing law and to correct all

inconsistencies The law of the 12 tables was compiled and simplified into a systematic and Coherent Code

of Law Corpus Juris (codified law during the Justinian’s reign); 4 parts:

a) Institutes (533 AD) – introduction to the entire work and intended as an elementary textbook used in Roman Law Schools based on commentaries by Gaius, Ulpian and Marcianus and divided into 4 books (persons, obligations and actions)

b) Digests or Pandects – covers the entire body of the Roman Private Law with the purpose to extract the spirit of jurisprudence from the decisions and conjectures, the questions and disputes of Roman Civilization

c) Codex (434 AD) – contains more public and criminal law than the Digest and based on the constitutions or documents issuing from the Emperor (edicts, rescripts, decrees)

d) Novel or Novellae Constitutiones (565 AD) – a supplement containing enactments after the other parts had been published, and relating mainly to public and ecclesiastical affairs, private law and intestate succession

Even Germanic invaders recognized the superiority of the Roman Legal institutions to those of their own

Development of the Roman Law after the Justinian Codification Roman Law – preserved through the Justinian Codification even after the upheavals in

Europe, downfall of kingdoms and the dark ages Roman Catholic Church – an institution that survived the political changes Ecclesia vivit lege Romana – the Church lives by the Roman Law Corpus Juris Canonici – Canon Law was based largely on Roman Law Corpus Juris – preservation of the Roman Law; taught in University of Bologna, Paris and

Oxford Glossotars – doctors of law who developed and enriched the Roman Law in the 12th C.; they

were so-called for they wrote notes on margins or between texts to analyze or compare provisions of the law

Bartolists (named after Bartolus, a famous jurist) – applied Roman law to practical problems of the government administration (e.g. Court Procedure and Judicial Mirror)

Court Procedure and Judicial Mirror (by William Durantis) – treatise of civil and canon law dealing on Civil and Criminal Procedure

Humanists or Romanists – considered the Roman law in the light of the Renaissance and Reformations (the medieval theory of the Holy Roman Empire was abandoned with the rise of independent sovereign states)

Hugo Grotius – developed the practice of having the International Law be based on Roman Law

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Code of Napoleon – the best known code to replace the Justinian Roman Law in which Napoleon himself took and active part in its drafting

French Civil Code – the code of today that is bound to influence the whole world

CHAPTER 1 – GENERAL PRINCIPLESI. The Field of Law, Its Nature and Sources

Ius (lt.)- (lt.) the whole body of law – Legal System; right- (eng.) (1.) Law (2.) Particular enactment or promulgated rule- Right (eng.) may mean ius or what is morally correct- All commands of morality and law (Roman jurists)

Ius (in strict sense) 2 meanings:(1) Law – the whole mass of rights and duties protected and enforced by legal remedies (2) Single Right – any privilege accorded by law to any man accompanied by a correlative duty imposed on another man

Characteristics of Law (Sanchez Roman)o Rule of Conducto Dictated by Legitimate Powero Obligatory to All

Justice – constant and perpetual wish to render everyone his due Jurisprudence – is the knowledge of things divine and human; science of just and unjust;

knowledge of what is ius and ius Fundamental Maxims of Law

(1) To live honestly(2) To hurt no one(3) To give everyone his due

Branches of Lawo Public Law (ius publicum) – regulates the government of the state and define relations with the

citizens (constitutional law and criminal law, regulations of religious worship and civil administration)

o Private Law (ius privatum) – determines the rights and the duties of the individual (division accdg. to Ulpian)(a) Jus Naturale (law of nature) – established by Divine Providence; represents more of the moral basis upon which law is founded; from works of jurisconsults derived from the Stoics; the expression of right reason is inherent in mail and has a binding force of a law (b) Jus Gentium (law of nations) – developed through the creation of the office of the preator peregrinus (a magistracy with the duty of deciding cases between citizens and foreigners; source – treaties of Rome with other states (c) Jus Civil (law of the citizens) – law which the people (patricians and plebeians) make for their own government and exclusively for that state (Roman Law = jus Quirites – for Romans are called Quirites from Quirinus)

Division of Law (according to form)o Unwritten (jus non scriptum) – founded on custom (they act like laws when adoptedo Written (jus scriptum); sources

(a) Positive Enactments by popular assembliesi. Leges – laws proposed by the different monarchs and adopted by the people in popular

assemblies like the Comitia Centuriata

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3 tribes during the Early Roman History1.Comitia Curiata – male members of the curiae who could bear arms2.Comitia Centuriata – assembly for battle3.Comitia Tributa – voting units

Each clan is composed of curiae which consisted a number of clansii. Plebiscita – enactment of the plebeians on its being proposed by a plebeian magistrate

iii. Senatus Consulta – enactment of the senatus when it became a legislative body (due to the increasing population, senatus was created to represent the people)

(b) Principium Placita – imperial laws or direct expressions of the imperial will. They are given in various ways:

i. Edicta – the proclamations of the emperor which defined the principles guiding him in the performance of the functions of his office * jus honorarium (edicts of the prateors) – so called because those who bear honors in the state (magistrate) have given it their sanction

ii. Decreta – the judicial sentences of the emperor in cases submitted to him for judgmentiii. Mandata – instructions which the emperor addressed to a public functionary, which were

to serve as rules for his conductiv. Rescripta – answers given by the emperor to magistrates who requested his assistance in

the decision of doubtful points Epistola – a reply in form of a separate document made in answer to the inquiry of an

official Subscriptio – a reply to a private person endowed on the application itself

* lex regla (where the emperor derives his authority) – law of the comitia curiata by which the emperium is conferred; this law is a relic of that by which the King had been invested by the royal authority, entrusted to him by the curia representing the populus

(c) Magistratium Edicta – statements of the rules to be followed by a magistrate in deciding cases

i. Edictum Perpetuum – list of rules which the he, the praetor, is intended to be bound (pertuum – year to year under successive preators)

ii. Edictum Repentinum – emergency edict made to meet a particular case(d) Responsa Prudentum – consisted of Answers and Opinions of the jurists on legal questions

submitted to them*jurisconsults – persons who were authorized to interpret publicly the law (unanimity of their answers can’t be refused by the judge)

II.Roman Private Law Three Fold Scheme (initiated by Gaius and adopted by Justinian)o Law of Persons (Dejure Personarum)o Law of Things (De Rerum Divisione)o Law of Actions (De Actionibus)

Jus Privatum (accdg. to Justinian’s Institutes)- Partly derived from jus civile (law between persons; first contrasted with “jus honorarium”), jus gentium (the law common to people – particularly known as “common justice” in contrast with “civil or particular justice”), and jus natural (derived from particular nature of particular legal institution)

NOTE: if legal concepts are properly understood, then legal rules can be easily appliedEQUITY (aequitas) – used to correct the letter of the law in doubtful or hard cases

was associated with natural law aequum (equal or fair) had been used in lieu of justum (lawful or just)

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aequum was also used to translate epeikes (grk) which Aristotle contrasted with strict law* Ulpian said: “the law of nature is the law which nature has taught all living things including animals” (bonum et aequum – Art. 10, NCC)

CHAPTER II – THE LAW OF PERSONS (De Jure Personarum)I. Personal Capacity

Person – any being capable of having and being subject to rights. (1) Natural (human being)(2) fictitious (juristic) – called universitas or corpus

Status –is the capacity of the individual for the exercise and enjoyment of legal rights, and his susceptibility to incur obligations; position that a persona occupies in the eyes of the law (e.g. libertas, civitas, familia)

Beginning of Personalityo A child acquires personality as soon as it is born and must have lived at least for a moment and it

is completely separated from the womb viable and capable of survivalo Division of Status (capita)

(1) Libertas – the capacity to have and be subject to the rights and obligations of a freeman* Men are either free (liberi) or slaves (servi)* Freemen could either be natural born (ingenui) or freeman (libertine)* Natural born freeman (in genuus) – is one born in the matrimony of: (1) Both parents free(2) Of parents born slaves but subsequently freed(3) One parent born free and another born slave, but later liberated(4) With a free mother and a slave father, for the child follows the condition of the mother* When a child is conceived with a free mother and born of a slave mother, the child is deemed free so as not to prejudice her unborn infant* Further classifications of freemen:(1) Citizens (civis)(2) Latini – former slaves who by reason of defect in the mode of liberation do not attain the full stature of citizens

(2) Civitas – the capacity to have and be the subject of rights and obligations of Roman citizens *Individuals could either be citizens (civis) or aliens (peregrini) * Enfranchisement does not prejudice the rights of birth

(3) Familia – the capacity to have and be the subject to the rights and obligations of a person belonging to a Roman Family

a) Sui juris (independent of control of anybody else)b) Alieni juris ( dependent or under the power of someone)

* Caput – sum of a person’s legal capacity End of Personality of Natural Persono A man’s natural personality ends when he dies. The death must be proven by anyone who basis

his claim upon death. Roman law has no provisions on presumption of death Civil Deatho Under the Justinian Code, persons entering monastery or convent loses their capacity to acquire

property rights (repealed)

II.The Institution of Slavery One institution in Roman Law where jus gentium and jus natural cannot be reconciled

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Freedom – is the natural power of doing what we please, unless prevented either by force or by law

Slavery – an institution of the law of nations, by which one is made the property of another, contrary to natural rights

Slaves are called mancipia becausethey are taken by the enemy by the strong hand Vernea (children of slave mothers) – they are reared on the property of the owner of their mother

III. Power of Head of Family Patria Potestas – the authority exercised by the head of a family NOTE: The head of the Roman family exercised supreme authority over his wife, children and

slaves. He was their owner and their master. He alone was sui juris and all other members of the family are alieni juris

Pater Familias (head of the familia) – the term not necessarily expresses paternity, but merely signifying a person who was not under the power of another

Mater Familias – an unmarried woman whose father was dead; she was sui juris In Roman law, the power of the father of the family is absolute (like the dominica potestas of a

master over slave), the father could sell, expose or put to death his children Constantine condemned the father who killed his child as parricide Peculium – like the slave, children’s property belonging strictly to the father, and whatever the

son in potestate acquired was acquired for the father, although the son could not make his father’s position worse, and the father was not liable for the debts and engagement of the son

Familia (as understood in Roman Law may mean the ff.)o All persons of the blood of the same ancestoro The head of the family and all those in his power whether slaves or freeo All connected by agnationo slaves of a mano the property of pater familias, of whatever sort

A woman does not have descendants, it is said that her family ends with her Causes for the rise of patria potesta: (arts. 178, 183 FC)

(1) marriage(2) legitimation(3) adoption

CHAPTER III – MARRIAGE (Matrimonium) Marriage – is the legal tie that is formed by the union of a man and a woman carrying with it the

mode of life in which they are inseparable. Nuptia – the ceremony which leads to the formation of marital tie

I. ESSENTIAL REQUISITES OF MARRIAGE1.Consent of the Parties that is duly expressed and manifested (mere living together do not give

rise to matrimony unless there was an intention to marry) 3 Methods of Celebrating Marriageo Confarreatio – a religious ceremony solemnized by a priest in which none but those to

whom the jus sacrum was open o Coemptio – symbolic purchase of the wife in the presence of five witnesses and a balance

holder (librepens)o Usus – cohabitation of a man and a woman with the intention of marriage within 1 yearNOTE:

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- Under the Law of the 12 Tables, if the wife absented herself from her husband for 3 nights within 1 year, then the usus is interrupted, the wife remains to be a part of the familia

- Determination of Marriage is not in the ceremonies or the rites, but the binding relationship between the parties (the woman should pass into the husband’s possession)

2.Age of Puberty – 14 years for the man, 12 years for the woman3.Connubium – legal power of contracting marriage. Factors:

a.Citizenship – BOTH parties must be Roman Citizensb.Consanguinitas – marriage cannot be contracted by persons falling within the prohibited

degrees of blood relationship (no ascendants or descendants – even adopted, collateral relatives; marriage with 1st cousins was prohibited but later allowed by law = such relationships mentioned are deemed incestuous)

c. Affinitas – relationship through marriagei. Man is forbidden to marry his stepdaughter, daughter-in-law, mother-in-law and his step-

motherii. Marriages between brothers-in-law and sisters-in-law were at first permitted but were

forbidden by Constantine, Theodosius and Valentiniand.Public Policy or Political Grounds

i. Patricians were not allowed to marry the plebeians, nor the freeborn with the freedmen until the Lex Julia et Papia

ii. Senators can’t marry freedwoman or women of openly bad character iii. A guardian could not marry his ward before she was 26 y/o unless she is betrothed with the

consent of her pateriv. A governor of a province cannot marry an inhabitant therein (he might abuse his authority)v. An adulterer cannot marry his accomplice; a ravisher cannot marry his victim

If the parties to a marriage are alieni juris, the consent of the pater familias was necessary- If consent was not obtained, the marriage is void and no subsequent consent could satisfy it- Consent need not be expressly given, it may be implied through the acts of the pater familias

Such as when he fails to object although he knows of the marriage If he was absent or been captive for 3 years, his children may enter into a marriage in which

he could not disapprove afterwards If the man to be wed is under the patria potestas of his grandfather, he must also obtain the

consent of his father (because it would mean adding a new member to his family – he needs to be informed)

Where the pater familias is a madman, certain formalities are to be observed-The child of the madman has to request the approval of the proposed marriage, and the dos to

be fixed by the bishop of the city or province, in the presence of the curator of the madman and his principal relations

Spurii – children born out of prostitution, having no father to recognize them Sponsalia – a promise to contract a tie wherein the parties, at the age of 7, and their respective

pater familiasassure their consent (either party may renounce it but he/she forfeits the things given as security – arrhrae)

In legal marriage, the dos of the wife belongs to the husband (the power of the husband to such was limitless until it had been restricted by later laws)

The settlement of the wife (donation propter nuptias) belongs to wife but managed by husband Contubernium – the union between the slaves (not recognized by law)

II.MATRIMONIAL PROPERTY

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Community of Propertyo Dowry System of the Roam Law was adopted by the Spanish Civil Code which was enforced in

the Philippineso The NCC eliminated the dowry system, but the parties may stipulate it

Donations Propter Nuptiaso Definition, gifts given to the spouses by reason of their marriage

Administration of Matrimonial Ceremonyo Husband – has the authority of administration of matrimonial property (Spanish CC)o FC, spouses may agree on the regime of (1) absolute community, (2) conjugal partnership of

gains, or (3) complete separation of property

III. DIVORCE (Divortium) Is the breaking of the legal tie of marriage (after a fixed interval, either party may marry again) Later curtailed by the Theodosian Code

IV.LEGITIMATION Is the legal process wherein the offspring in concubinage were placed in the same position of

children of a legitimate marriage 3 ways of legitimation:

(1) Oblation to the curiae (per oblationem curiae) Curia – class from which the magistrates were drawn To legitimize the child, his name must be enrolled in the list of the members This was at first opened to well-to-do parents since it is costly to be a member of the curiae,

but this was later opened to other citizens by Theodosius and Valentinian – presenting children born in concubinage to members of the order (not adopted in the Philippines)

(2) By subsequent marriage of the parents (per subsequens matrimonium) Requisites:

a) that at the time of the conception, the parents should have been capable of a legal marriageb) an instrument settling them dowry (dos)c) that the children should ratify the union for no one was made legitimate against his will (to prevent scrupulous parents from taking advantage of the child to be legitimized

(3) By an imperial rescript (per rescriptum principis) If the subsequent marriage of the parents is impossible (may be given even if after the death

of the father, by his testariierit – expressing his wish to that effect) Not adopted in Philippines

V. ADOPTION Definition, is the act by which the relations of paternity are established between persons

not so related by nature. The effect of adoption was to place the person adopted exactly in the position he would

have held had he be born of the adopting parents He becomes the heir, bore the name and shared the sacred rites of the family he entered

(3rd mode of acquiring patria potestas) Adoptio – is the adoption of a person alien juris

o 2 forms (Justinian’s time)(1) Plena – same effect as adoption in the early law (person adopted is placed at the same footing as the son of the adopter)

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(2) Minus Plena – adoption made by a person who is a stranger to the adopted (the adopted son remained in the family of his natural father); the only change is that he acquired the right of intestate succession to the adoptingfather

o 2 ways (1) Injure Cessio – a fictitious or collusive lawsuit in which the adopting parent claims the adopted. Prior to the institution of the action, the pater familias of the adopted must release him by three sales (mancipatio) in order to destroy the potestas(2) Execution before the magistrate of a deed of adoption, with the adopter, the adopted and the natural father expressing his consent

Adrogatio – adoption of a person sui juris (not only the person adopted but also under those his own potestas came under the control of the adopter) – persons above the age of majority may be adopted

Principles applied in both adoptio and adrogatioa) A younger person cannot adopt an older oneb) There must be a difference of at least 18 years between the adopter and the adopted

(age of 18 – the person already attained full mental and physical capacity to take care of another person)

Under the earlier law, women cannot adopt but Justinian permitted them as long as the woman lost a child

Persons incapable of procreation could also adopt, although castrated persons were prohibited

VII. WAYS OF TERMINATING PATRIA POTESTAS(1) Death of the pater or filius – the children will become sui juris(2)Loss or reduction of civil status of either parent or son (capitis diminution)

a) loss of freedom – maxima capitis diminutionb) change of status to that of an alien – media capitis diminutionc) loss of family relations – minima capitis diminution

*right of potestas may only be restored though the pardon of the emperor* jus postliminii – what was lost is to be restored

(3)Attainment of a public distinction – Justinian conferred the privilege of people becoming sui juris if they attain the dignities of public distinction(4) Unworthy act of the pater familias – father commits an act prejudicial to the rights of the filius(5) Emancipation – act by which the pater familias releases his power over his filius familias (declaration before a judge or magistrate)(6) Marriage of Children – marriage of a daughter would eliminate patria potestas as she would pass to the potestas of the husband but not with the son, for he may still be under the patria potestas even if of old age as long as his father is still alive(7)Adoption – adopted person passes into the power of the adopter

VIII. TUTOR (Tutela Impuberum) Tutelao power given over a free person, (sui juris) who, by reason of his age, is unable to protect himself

(i.e. women (perpetua mulierum) and children (impuberum))o a public duty so that the one who is appointed as a tutor must serve unless he could give a valid

excuse or is disqualified o Women were latter permitted by law to act in default for testamentary tutors

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o Tutela is ended when the pupil attained the age of puberty (Male-14, Female-12)o The tutelage is also ended, if the pupil, before attaining the age of puberty, is either adopted, or

suffers deportation, or is reduced to slavery for being found guilty of ingratitude to his patron, or if he becomes a captive

o Tutelage is also ended by the death of either the pupil or the tutor; also is a tutor loses his liberty or citizenship by capitis diminution, his tutelage is also lost (NOTE: tutors may be removed on suspicion of dishonesty)

Tutors – the protectors and defenders of the tutelao Qualifications under the Justinian Law:

At-least 25 years of age A man even under parental power may become a tutor Ill person, absence abroad, over 70 years old, state officials, teachers, may be exempted

o If a person is appointed by testament to be a tutor until a condition is accomplished, or for a certain fixed time, he ceases to be a tutor on the fulfillment of such condition or on the termination of the time

o e is considered appointed for the whole patrimonyo he has to provide for the security of the state of the impuber, in order to assure that the

property will be preserved (NOTE: the inventory of the property must be drawn at the beginning of the tutorship)

o Fraud or incompetence – grounds for a tutor to be removed o Suits against the tutor:

Under the Twelve Tables, an action may be brought for the counting of his administration, with the penalty of double the value of loss in case of an embezzlement

The pupil may bring an action against the tutor or those who have given personal security for the tutor

o Two-fold duties of a tutor:1.To administer the affairs of the pupil

Example:a. When the pupil contracts an obligationb. Entering into an inheritance or take an inheritance given by a fideicomissum, even if this is to their gain and could involve them no risk

2.To interpose his authority Tutela impuberum may arise in the following ways:o BY TESTAMENT (TESTA-MENTARIA)

this happens with children before puberty and are under the power of their ascendants grandfathers can only give tutors to their grandchildren when they are not under their father’s

power on the death of the grandfather tutors may also be named for posthumous children by testament Praeses – confirms the appointment if a father gives a tutor by testament to his emancipated

son (NOTE: An emancipated son is no longer under the power of his father) Father – the fittest person to be a tutor, unless there is some doubt to it (NOTE: A father may

appoint by testament a tutor for his illegitimate children if he left him some property)o BY OPERATION OF LAW (TUTELA LEGITIMA)

Nearest Male AGNATI – appointed as tutor under the Twelve Tables when no testamentary tutor has been appointed

Agnati – those who are related to each other through males, that is related through the father (i.e. brother by the same father, son of a brother, son of such son and so forth)

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Cognati – those who are related through females Patronorum – another kind of tutela legitima where the master who formerly freed his slave

from slavery below the age of puberty became his patron or tutor Paretum – another kind of tutela legitima where the pater familias who emancipates a child

below the age of puberty becomes his legitimate tutor NOTE: A man may by testament, appoint his own slave as his tutor, giving him his liberty at

the same time o BY MAGISTRAL SANCTION (MAGISTRA DATIVA)

the magistrate appoints a case in case there is no testamentary or fiduciary tutor (NOTE: anyone interested may apply for the appointment)

Tutela by fiduciary trust (fiduciarii) – happens when a pater familias emancipated a child below the age of puberty and the former dies. By an implied trust, the child comes under the tutela of his unemancipated brothers for they are now in possession of the family property

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