Paulus, On the Edict, Book XXXVIII. Guardianship is (as Servius defines the term), authority and power over a free person, granted for the purpose of protecting him who, on account of his age, is unable to protect himself; and this authority is conferred or admitted by the Civil Law. 1Guardians are those who possess this authority and power, and they derive their name from the office itself. Therefore they are styled guardians, being as it were protectors and defenders, just as those are styled guardians of a temple, who are charged with its care. 2A person who is dumb cannot be appointed a guardian, as he cannot exert his authority. 3Many legal writers, among them Pomponius (in the Sixty-ninth Book on the Edict), hold that a deaf person cannot be appointed a guardian, because a guardian should not only be able to speak, but also to hear.

Paulus, On the Edict, Book XXXVIII. A man whose name or condition is uncertain cannot be appointed a guardian. 1We can appoint any person whomsoever a guardian by will, even if he be Prætor or Consul, because this is authorized by the Law of the Twelve Tables.

Paulus, On the Edict, Book XXXVIII. Where a parent dies intestate, guardianship is granted to his next of kin. A person, however, is held to die intestate, not only where he did not make a will, but also where he did not appoint guardians for his children, as in this instance, he dies intestate, so far as guardianship is concerned. We hold that the same rule applies where a testamentary guardian dies while the ward is still under the age of puberty, for, in this case, his guardianship vests in the next of kin on the father’s side.

Paulus, On the Edict, Book XXXVIII. If I leave a son under the age of puberty, my brother and a grandson by another son will both be guardians of my said son, if they have arrived at full age, because they are in the same degree of relationship.

Paulus, On the Edict, Book XXXVIII. Where several guardians administer a guardianship, an action in the name of a ward cannot be granted to any of them against his fellow-guardians. 1According to the Rescripts of Trajan and Hadrian, the transaction of all business by a guardian in good faith should be ratified. Therefore, a ward cannot bring an action to recover property which has been legally sold by his guardian, for it should not be to the advantage of a ward if the administration of the property should not be approved, for under such circumstances no one would purchase anything. Nor does it make any difference whether the guardian is solvent or not, for if the transaction was a bona fide one, it should be approved; but if it was fraudulent, the transfer will not be valid. 2It would be too much to grant permission to a guardian to pay expenses out of the property of his ward, on the ground of preserving the reputation of the latter, where he could not honorably pay such expenses out of his own property. 3As a guardian is appointed not only to care for the property of his ward, but also to exercise supervision of his morals, he should, in the first place, pay his instructors not the smallest salaries that he can, but in proportion to the value of the estate, and the rank of the ward; and he should furnish support for his slaves and freedmen, and sometimes for those of strangers, if this will be to the advantage of the ward. He can send the customary presents to his parents and relatives, but he cannot give a dowry to a sister who is the issue of another father, even though she otherwise would not be able to marry; for while this may be done honorably, it nevertheless is a display of liberality which should depend upon the will of the ward. 4Where a guardian was unable to lend money belonging to his ward, because there was no one to whom he could lend it, the ward must bear the loss of the interest.

Paulus, On the Edict, Book XXXVIII. If suit based on the stipulation that the property of the ward shall be secure is brought against the sureties of a guardian, they have a right to take the same measures for their defence that a guardian has.

Paulus, On the Edict, Book XXXVIII. Debtors are released by payment to anyone who transacts the business of the ward instead of his guardian; if the money becomes a part of the property of the ward.