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date: 03 December 2020

lex (P)Laetoriafree

  • Peter Candy

Summary

The lex Laetoria (or Plaetoria) was a law of the late 3rd or early 2nd century bce that gave special protection to minors. The law gave an action against persons who were alleged to have fraudulently induced a minor to enter into a transaction. The praetor built on this protection by allowing a defence to be raised on the basis of the law. By the late Republic, the praetor had also stated in his Edict that he would grant a remedy known as in integrum restitutio to minors who had been taken advantage of. The practice of minors using curators to reassure potential creditors that they were entering into transactions on sound advice was formalised by the emperor Marcus Aurelius. By the post-classical period, the rules concerning the protection of minors (cura minorum) became closely assimilated to those concerning guardianship (tutela).

The lex Laetoria (or Plaetoria) was a law granting special legal protection to persons who were regarded as minors. The law was probably enacted during the last decade of the 3rd century or first decade of the 2nd century bce, though its method of promulgation is unknown (see lex [1], categories of Roman law).1 Its first possible attestation is by Plautus in the play Rudens (Rud. 5.3.24–27), which is thought to have been first performed in the last decade of the 3rd century bce.2 The reference here is, however, by no means certain, and the law’s first definite mention occurs in another Plautine play—Pseudolus (1.3.77-8)—which was first performed in 191 bce.3 This latter date, at the very least, represents a secure terminus ante quem. The law is variously referred to in the sources as the lex Laetoria or Plaetoria.4

The lex established an action—the so-called actio legis (P)Laetoriae—which could be raised on the premise that a minor had been fraudulently induced to enter into a transaction. The age at which the law ceased to offer protection is disputed: the interpretation of minores viginti quinque annis turning on whether it included or excluded those who had not yet completed their 25th year.5 At any rate, all those who were under twenty-five at the relevant time were definitely included. The lex Iulia municipalis (Tab. Heracl. 112) appears to indicate that the lex introduced two actions, but in all likelihood, there was only one.6 Cicero labelled the action an iudicium publicum rei privatae (Cic. Nat. D. 3.30.74) (i.e., one with both public and private elements), which probably refers to the fact that, although anyone was entitled to initiate proceedings and collect the penalty (not just the aggrieved minor), the subject matter of the dispute remained within the ambit of civil procedure.7 Since the action was penal, the defender could be condemned for a sum in excess of the value of the transaction, and noxal liability could ensue.8 Condemnation involved infamia. The lex was most likely, in the technical language of the Severan jurist Domitius Ulpianus (Reg. 1–2), minus quam perfecta, since although it introduced a penalty, it had no effect on the validity of the offending transaction.9 The law extended protection over all minors, without regard to whether they were sui iuris or in patria potestas, male or female, or, if they were female, irrespective of whether they had a guardian (see guardianship, Roman).10

The action granted under the lex was later supplemented by two additional protections, both introduced by praetorian innovation (see praetor). The first of these, which was probably introduced shortly after the passage of the lex, if not at the same time, was to allow a minor to raise a defence—the so-called exceptio legis (P)Laetoriae—in the event that he or she was sued and wanted to allege fraud (see law and procedure, Roman).11 Although the defence was not expressly spelled out in the praetor’s Edict, it was contained within the general defence that the pursuer’s allegation was made contrary to the terms of a senatus consultum.12

The praetor’s second innovation, which appears to have superseded the exceptio, was to state in his Edict that, where a minor sought relief, he would look into a case and, if satisfied, grant a remedy known as in integrum restitutio (i.e., “restoration to the status quo”).13 This remedy, which was designed to return the petitioning party to his or her original legal position, was included in the Edict at least from the time of the late Republican jurist A. Ofilius.14 In the case of a minor who had struck a bad bargain, this meant unwinding the legal consequences of the transaction so that it was as though it had never taken place. The praetor’s willingness to intervene went further than the lex, so that relief was granted not only in those cases in which a minor was alleged to have been induced to transact by fraud, but also in those where a bad deal had been struck owing to the minor’s inexperience. The remedy was of no avail, however, if the bargain was reasonable at the time it was made and had only subsequently turned out badly (e.g., because the res purchased by the minor had lost value). In addition, the praetor’s protection extended to unilateral acts: the minor might, for example, be relieved from having entered into a bad inheritance (see inheritance, Roman).15

The passage of the lex (P)Laetoria reflects an acknowledgement that the cessation of guardianship (tutela), especially over males at the age of fourteen, left minors with full legal capacity, but without any protections to compensate for their inexperience. The passage of the law near to, or shortly after, the end of the Second Punic War could well have been influenced by the socio-economic changes that were occurring at that time (see Punic Wars, 264–146 bce). Alternatively, Settimio Di Salvo has argued that the purpose of the law was to dissuade young men from engaging in trade in order to encourage them to return to agricultural pursuits.16

There is evidence that individuals relied upon the legal remedies for protection. One papyrus from Roman Egypt, for example, reveals that a young man sought redress after having sold at far too low a price while still a minor.17 The original lex, however, may have had a chilling effect: as one Plautine character complains (Pseud. 1.3.77), everyone was afraid to lend him money because of the Quinavicenarian law (i.e., the law concerning twenty-five-year-olds). The need for minors to provide extra reassurance to those who would deal with them was met by the practice of bringing in a curator, usually on a transaction-by-transaction basis, whose acquiescence (consensus) was good evidence that the young person had acted reasonably and under advice.18 The role remained informal until a constitution of the emperor Marcus Aurelius in the 2nd century ce (see Aurelius, Marcus, Roman emperor, 161–180 ce) provided that a minor could apply to the praetor (or, in the provinces, the governor [see provincia/province]) for the appointment of a dedicated curator to oversee all their dealings. Nevertheless, for the whole of the classical period, the acquiescence of a curator to any given transaction was never more than evidentiary. In the post-classical period, the rules governing cura minorum were gradually (though never completely) assimilated with those concerning guardianship, so that the capacity of minors to act independently was slowly restricted.19

Bibliography

  • Buckland, William W. A Text-Book of Roman Law from Augustus to Justinian. 3rd ed. Edited by Peter G. Stein. Cambridge, UK: Cambridge University Press, 1963.
  • Cervenca, Giuliano. “Osservazioni sul ‘curator’ della donna minore di veinticinque anni.” IURA: Rivista internazionale di diritto romano e antico 40 (1989): 24–40.
  • Costa, Emilio. “Della data della lex Plaetoria de circumscriptione adulescentium.” Bullettino dell’Istituto di diritto romano 2 (1889): 72–89.
  • Crook, John A. Law and Life of Rome. Ithaca, NY: Cornell University Press, 1967.
  • Di Salvo, Settimio. Lex Laetoria: Minore età e crisi sociale tra il III e il II a. C. Naples: Jovene, 1979.
  • Jolowicz, Herbert F. Historical Introduction to the Study of Roman Law. 3rd ed. Cambridge, UK: Cambridge University Press, 1972.
  • Kaser, Max. Das römische Privatrecht. Vol. 1. Munich: C. H. Beck, 1971.
  • Kaser, Max, and Karl Hackl. Das römische Zivilprozessrecht. 2nd ed. Munich: C. H. Beck, 1996.
  • Laes, Christian, and Johan Strubbe. Youth in the Roman Empire: The Young and Restless Years? Cambridge, UK: Cambridge University Press, 2014.
  • Musumeci, Francesco. “‘Uti Quaeque res erit, animadvertam.’ Protezione edittale dei minore e mezzi pretorii adottati per la sua attuazione.” In Studi per Giovanni Nicosia. Vol. 1. Edited by Eleonora Nicosia, 443–500. Milan: Giuffrè, 2007.
  • Nicholas, Barry, and Ernest Metzger. An Introduction to Roman Law. Oxford: Oxford University Press, 2008.
  • Pugliese, Giovanni. “Appunti sugli impuberi e i minori in diritto romano.” In Studi in onore di Arnaldo Biscardi. Edited by Franco Pastori, 469–501. Milan: Istituto editoriale Cisalpino, La Goliardica, 1982.
  • Rotondi, Giovanni. Leges publicae populi romani. Elenco cronologico con una introduzione sull’attività legislativa dei comizi romani. Hildesheim, Germany: G. Olms, 1962.
  • Schulz, Fritz. Classical Roman Law. Oxford: Clarendon Press, 1951.
  • Wiedemann, Thomas E. J. Adults and Children in the Roman Empire. London: Routledge, 1989.
  • Winkel, Laurens C. “Forms of Imposed Protection in Legal History, Especially in Roman Law.” Fundamina 16, no. 1 (2010): 578–587.

Notes

  • 1. Alan Watson, Law Making in the Later Roman Republic (Oxford: Oxford University Press, 1974), 8.

  • 2. Erich Woytek, “Sprach- und Kontextbeobachtung im Dienste der Prioritätsbestimmung bei Plautus: Zur Datierung von Rudens, Mercator und Persa,” Wiener Studien 114 (2001): 119–142.

  • 3. Cf. Alan Watson, The Law of Persons in the Later Roman Republic (Oxford: Clarendon Press, 1967), 158. For the reference contained in Pseudolus, Emilio Costa, “Della data della lex Plaetoria de circumscriptione adulescentium,” Bullettino dell’Istituto di diritto romano 2 (1889): 72–89; and Woytek, “Sprach- Und Kontextbeobachtung,” 119.

  • 4. The principal texts are: Plaut. Pseud. 1.3.77; Rud. 5.3.24; Cic. Nat. D. 3.30.74; Off. 3.15.61; SHA. Marc. 10; Prisc. Inst. 8.21 and 18.149; Tab. Heracl. 112; Fr. de form. Fab. 4; Cod. Theod. 8.12.2; BGU II 611. The lex also appears to be referenced in Dig. 4.4.24.3 (Paul. 1 sent.) and 46.2.19 (Paul. 69 ad ed.). See Giovanni Rotondi, Leges publicae populi romani. Elenco cronologico con una introduzione sull’attività legislativa dei comizi romani (Hildesheim: G. Olms, 1962), 271–272. Fritz Schulz argued in favour of the authenticity of ‘Laetoria’ as the original appellation: Classical Roman Law (Oxford: Clarendon Press, 1951), 191.

  • 5. The more common interpretation is that minors were those who were under the age of twenty-five; cf. Schulz, 191.

  • 6. For the view that there were two actions, see William W. Buckland, A Text-Book of Roman Law from Augustus to Justinian, ed. Peter G. Stein, 3rd ed. (Cambridge, UK: Cambridge University Press, 1963), 171; but cf. Schulz, Classical Roman Law, 192; and Herbert F. Jolowicz, Historical Introduction to the Study of Roman Law, 3rd ed. (Cambridge, UK: Cambridge University Press, 1972), 241, with literature cited at note 5.

  • 7. Umberto Laffi, Studi di storia romana e di diritto (Rome: Edizioni di storia e letteratura, 2001), 304–305. On the distinction between a iudicium privatum and a iudicium publicum, see Max Kaser and Karl Hackl, Das römische Zivilprozessrecht, 2nd ed. (Munich: C. H. Beck, 1996), 23.II.

  • 8. Fr. de form. Fab. 4: “Laetoriae noxales sunt. . .”

  • 9. Max Kaser, Das römische Privatrecht, vol. 1 (Munich: C. H. Beck, 1971), 60.I.3; also, Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Cape Town: Juta, 1990), 698–699.

  • 10. Schulz, Classical Roman Law, 191.

  • 11. The use of the lex as a defence is referred to in Dig. 44.1.7.1 (Paul. 3 ad Plaut.); and Watson, Persons, 157–158.

  • 12. Schulz, Classical Roman Law, 192; Kaser and Hackl, ZP, 35.IV.2; Otto Lenel, Das Edictum perpetuum: ein Versuch zu dessen Wiederherstellung (Leipzig: Tauchnitz, 1927), 513; and Dario Mantovani, Le formule del processo privato romano. Per la didattica delle istituzioni di diritto romano (Como: New Press, 1992), 88, no. 172.

  • 13. Francesco Musumeci, “‘Uti Quaeque res erit, animadvertam.’ Protezione edittale dei minore e mezzi pretorii adottati per la sua attuazione,” in Studi per Giovanni Nicosia, ed. Eleonora Nicosia, vol. 1 (Milan: Giuffrè, 2007), 458–459; cf. Hans Ankum, “Gab es im klassischen römischen Recht eine “exceptio” und eine “replicatio legis laetoriae?”’ in Vestigia iuris romani: Festschrift für Gunter Wesener (Graz, 1992), 21–33; and Dig. 4.4.1.1 (Ulp. 11 ad ed.): Praetor edicit: “Quod cum minore quam viginti quinque annis natu gestum esse dicetur, uti quaeque res erit, animadvertam”; and Lenel, EP, 116; on which, Musumeci, “Uti quaeque res erit.”

  • 14. Dig. 4.4.16.1 (Ulp. 11 ad ed.); Watson, Persons, 158. For a description of the remedy, John A. Crook, Law and Life of Rome (Ithaca, NY: Cornell University Press, 1967), 117; also, Kaser and Hackl, ZP, 88.II.

  • 15. The minor need only to have been “overreached” (circumscribere). Ulpianus states that the reason for the protection of young people was that they were generally agreed to be weak in both body and mind: Dig. 4.4.1 pr. (Ulp. 11 ad ed.). On Roman attitudes to the young, Christian Laes and Johan Strubbe, Youth in the Roman Empire: The Young and Restless Years? (Cambridge, UK: Cambridge University Press, 2014).

  • 16. Crook, Law and Life of Rome, 116–117; María Teresa Duplá Marín and Dolores Bardají Gálvez, “El fundamento último de la protección al menor consumidor: La inexperiencia en el ámbito patronal,” Anuario da Facultade de Dereito da Universidade de A Coruña 11 (2007): 211–230; and Settimio Di Salvo, Lex Laetoria. Minore Età e Crisi Sociale Tra Il III e Il II a. C. (Naples: Jovene, 1979), 53–62 and 77–102.

  • 17. P. Mil. Vogl. 25; P. Lond. 113; for which, Rafał Taubenschlag, The Law of Greco-Roman Egypt in the Light of the Papyri, 332 B.C.–640 A.D. (New York: Herald Square Press, 1944), 124 and 249–250; also, Laes and Strubbe, Youth, 33.

  • 18. Crook, Law and Life of Rome, 117–118.

  • 19. SHA. Marc. 10. This text indicates that before the constitution of Marcus, curators were only usually appointed for special reasons: Jolowicz, Historical Introduction, 241, note 9; Nicholas, Introduction, 95. See, generally, Cod. Iust. 2.21. Buckland, Text-Book, 173–174; and Nicholas, Introduction, 95.