Historical development of the minor's custody in the Roman Law

• Author: Entela Filo
• Pages: 183-189

European Journal of Economics, Law and Social Sciences

IIPCCL Publishing, Graz-Austria

Vol. 2 No. 1

January, 2018

ISSN 2519-1284

Acces online at www.iipccl.org

183

Historical development of the minor’s custody in the Roman Law

PhD (C.) Entela Filo

Abstract

The children, as the most fragile category in the society, have always been in need of special

care and protection, which is usually exercised by parents, who take care of their well-being

and development.

Butatalltimestherehavebeennumerouscasesofminorswhoforvariousreasonswerele

out of parents’ custody and could not therefore provide the necessary protection of their rights

and interests.

Under these conditions the need of the MinorsCustody Institute was created as a form

of society’s response to the protection of this category of subjects, an institute that, for its

ownlegal andsocial signicancehas beentreated sincethe earlystages ofhuman societys

development, by evolving in its most perfect form to nowadays.

Keywords: HistoryRomanLawMinorCustody

Historical development of custody on minors in the Roman Law

AccordingtotheRomanLawthecustodyinstitutedevelopedunderthedesignation

of the tutoring institute, included two subdivisions: tutorship and guardianship.

Historical data show that tutorship and guardianship were institutes that carried out

the protection of the property interests of the subjects that were under the authority

of the tutor or guardian (as their legal representative), in legal relations of property

character Legal rules on tutorship and guardianship under Roman law do not

enter into family law maers These institutes belonged to the personal right ius

personarumwhichinitselfincludedalltheRomanlaw institutesthatinuencedthe

legalstatusofpersonsinsideandoutsidethefamilyOlldashi

TheyarelegalinstitutionscloselyrelatedtotheissuesofpersonsabilitytoactWhile

intheRoman familythe powerofpaterfamilia was eternal, there was no problem of

abilitytoactforotherpersonsMandro

The problem of the ability to act, was created only in those persons who did not live

under the power of the head of the family, who were known the status sui iuris, but

that were in such circumstances that they could not reasonably use the known rights.

These needs also arise for people who could not exercise the ability to act because of

the age and gender, as well as those who could not exercise the ability to act because

oftheirpersonalinadequacies

Thus, some law subjects who, while free and sui iuris, needed legal protection,

while they were possessors of a certain property, which they could not manage by

themselves (Ivo, 1989, 190).

Asummaryoftherulesregulatingthelegalrelationsontheexercisingorfulllment

of the impossibility of acting of persons, led to the creation of a tutorship and

guardianship institute.