THE ENACTMENTS OF JUSTINIAN.
  
THE NOVELS.
~  LXXII  ~
THOSE TO WHOM THE PROPERTY OF MINORS HAS BEEN HYPOTHECATED, OR WHO ARE THEMSELVES INDEBTED TO MINORS, SHALL NOT HAVE THEM UNDER THEIR CONTROL. CURATORS SHALL UNDER NO CIRCUMSTANCES ACCEPT ASSIGNMENTS AGAINST THOSE WHOSE AFFAIRS THEY ARE ADMINISTERING, OR WITH WHOSE CURATORSHIP THEY ARE INVESTED. THESE PROVISIONS SHALL BE GENERALLY APPLICABLE TO EVERY SPECIES OF CURATORSHIP, AND TO ALL PERSONS TO WHOM THE LAWS GRANT CURATORS. CONCERNING THE ADMINISTRATION OF SUMS OF MONEY BELONGING TO THOSE WHOSE BUSINESS IS TRANSACTED BY CURATORS, AND UNDER WHAT CIRCUMSTANCES THEY SHOULD BE PLACED ON DEPOSIT OR LOANED, AND WHAT SHOULD BE DONE WITH THE INCOME FROM SAID SUMS OF MONEY.


 
( S. P. Scott, The Civil Law, XVI, Cincinnati, 1932 ).
 
 
  The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
  The legislator of a government should direct his attention everywhere, should see that everything is properly conducted, and that nothing is neglected. Documents affecting the rights of minors, or which relate to the care of their property, should be specially taken into consideration by those to whom permission has been given by God to enact laws; We mean by this him who is invested with sovereignty. We have heard of many cases in which transfers have been made by curators against the interests of minors, where they had arrived at puberty, where they were under that age, and where they had not yet attained their majority; and the result of this was that the curators became the owners of their property, either by accepting claims against them, which perhaps were fraudulent; or by obtaining transfers of extremely fragile articles at a very low price, or by concealing receipts for the property of minors, and of negotiating transfers of objects under many and various pretexts. For what will a man who has once been guilty of dishonesty not contrive in order to appropriate the property of minors?
CHAPTER I.
 
WHO CANNOT BE EITHER THE GUARDIANS OR CURATORS OF MINORS OR YOUTHS.
  We desire to correct all these things by means of the law, and especially to prevent anyone who has a claim against a minor or his property from obtaining the curatorship of the same, or accepting it, even if called to do so by law. For who is there who would not act in his own behalf if he had control of the minor, and was the actual custodian of the property of his adversary? Hence We order that if it is perfectly clear that he who is given charge of his property is indebted to the minor, he shall not be his curator, lest he may steal the evidence of an obligation, or destroy other proofs of claims belonging to the minor, and the care of the property of the latter be productive of loss. We provide for this by a most beneficial law, and decree that none of those persons to whom the property of the deceased, or of the minor himself, is known to be encumbered, shall be invested with the curatorship, or shall be authorized to administer it.
CHAPTER II.
   
A CURATOR SHALL BE ADDED TO A GUARDIAN WHEN THE LATTER HAS BECOME
EITHER THE DEBTOR OR CREDITOR OF HIS WARD.
  Where, however, anyone who is administering a curatorship subsequently becomes the creditor of a minor, for instance, through the acceptance of an estate to which the minor is indebted, or under some other circumstances of this kind, as he will no longer be considered faithful to the interests of the minor, or youth, so far as the curatorship is concerned, another guardian or curator shall be joined with him (which We have found that the laws in most cases prescribe), that he may see that nothing is done to prejudice either the youth, or his property, and that no injury is committed against either by him to whom he is indebted. The curator shall discharge this duty, and at the time of his appointment must swear to do so; and if he should disregard his oath, he will be liable to the penalty resulting from his treacherous conduct.
CHAPTER III.
   
NO ONE SHALL BE RELEASED FROM THE DUTIES OF GUARDIANSHIP OR CURATORSHIP UNDER THE PRETEXT OF A DEBT, UNLESS HE CAN PROVE IT.
  In order that all men may not be afforded a pretext for their release from the duties of guardianship and curatorship, by merely stating that they are the debtors or creditors of minors, We decree that if anyone should allege that he has a claim against the minor or his property, or that the parents of the minor are indebted to him, he must prove this before the magistrate who appointed him curator within the time granted for denial, and shall then be discharged; or, if he cannot prove it, he must swear on the Holy Gospels that he believes he is actually a creditor of the minor; and after he has done this, We are unwilling for him to be charged with either the guardianship or curatorship, or allowed to have anything to do with the property, in order that We may not give the minor an enemy instead of a curator.
CHAPTER IV.
   
WHERE A GUARDIAN OR CURATOR, WHO IS EITHER THE DEBTOR OR CREDITOR
OF A MINOR, DOES NOT MENTION THIS IN THE BEGINNING.
  Where anyone, in the beginning, conceals the fact that he is the creditor of a minor, and is appointed his curator, he is hereby notified that he will be deprived of every right of action, even though it be genuine, against the said minor, for the reason that he purposely attempted to evade the present law to his own advantage. And if anyone should conceal the fact that he is indebted to the minor, he also is notified that the penalty incurred by him will be that he shall not be permitted to avail himself of any credits, or other payments on his debt, which he may, perhaps, have fraudulently made during his administration.
CHAPTER V.
   
CURATORS SHALL NOT ACCEPT TRANSFERS OF ANY KIND
CONTRARY TO THE INTERESTS OF MINORS.
  If anyone who (as has already been stated) has been appointed a curator should afterwards attempt to obtain the property of the minor, and accept a transfer of the same to himself by donation, sale, or any other means; he is informed that such a transfer will be absolutely void, whether it has been made directly to himself, or through the intervention of a third party, and that it will be just as invalid as if it had never been made at all. For it is perfectly evident that if a curator attempts to acquire the property of the minor, he will be considered as only having done so for his own benefit, and for the destruction of his soul.
  (1) This rule not only applies to curators, whom We forbid to accept transfers of property of this kind during their administration, but We also prohibit them from accepting them even after its termination, lest the curator, remembering that he cannot acquire the property while he is administering the curatorship, may conceal the transaction which took place while he was in office; and, a short time after his curatorship has ended, produce the evidence of the transfer which he fraudulently caused to be made to himself, just as if he had received it when he was no longer curator, and thus deceitfully made arrangements for this purpose. For We decree that such a transfer shall be void, and that no right of action assigned against the interest of the person with whose affairs the curator has previously been charged can legally be made use of; that the transfer shall be regarded as not having taken place; and that the former minor shall have the benefit of the profit resulting from the right of action which has been assigned, even though this assignment may have been made for good and sufficient reasons. We also forbid that the right of action shall revert to the person who has assigned it, as would be the case if nothing had been done contrary to law; but that this right shall be extinguished on account of the violation of Our Constitution, and the minor shall be entitled to the property for the recovery of which suit was brought. For, if We did not impose this penalty, it would be easy to commit fraud; as the curator, by returning the property transferred to him who made the assignment of the same, would receive it again through the medium of him who assigned it, and by a fraudulent act of this kind would evade the law. We order that these provisions shall be applicable to all curators whom the laws entrust with the administration of the property of spendthrifts, or insane and demented persons, even though other provisions may have been enacted on this subject, and unforeseen cases may arise.
CHAPTER VI.
   
CONSIDERING THE CARE OF MONEY BELONGING TO WARDS OR MINORS.
  But as We see that curators who have the fear of God before their eyes hesitate to accept the office (while many others are anxieus to do so for the reason that they wickedly desire to convert the property of the minors to their own use, which is something greatly coveted by and acceptable to them), and as their duties are especially distasteful to them because of the necessity of collecting interest, We order that curators shall not be required by Our laws to lend the money of minors at interest, but that they shall carefully deposit it and see to its preservation. For it is more advantageous for minors to have their money kept safely than to run the risk of losing it through the desire for interest; or to subject the curator to liability if he uses the money in trade, or lends it at interest, and the debtor becomes insolvent. When, however, the curator desires to lend the money on his own responsibility, for instance, taking pledges or other security which is considered of undoubted value, he shall be granted the term of two months during which he will not be liable to account for interest, which the laws call a "postponement," but he is notified that a loan of this kind will be at his own risk.
CHAPTER VII.
  If the income of him who is under curatorship is only sufficient for his maintenance, the curator shall spend the whole of it, and if it is more than sufficient for that purpose, he must deposit the surplus. If the property of him who is under the control of the curator consists of movables, the curator will only be required to lend a sufficient amount to meet the expenses of the minor or his business, and must deposit the remainder. He will, however, be allowed to search for something that will return a certain income, which may be subject to moderate public taxes; and if he finds a suitable vendor, and the property is productive, We authorize him to purchase it for the minor; but he is notified that if he neglects to observe any of these provisions the sale will be at his own risk.
CHAPTER VIII.
  Where, however, the property of the minor consists of money, and the interest of the same is barely enough to support him and his family, then We are necessarily impelled to authorize curators who have the fear of God before their eyes to manage this money just as if it belonged to them. For We desire that when a decree entrusting a curatorship to anyone is issued, the appointee shall swear on the Holy Gospels that he will use every means to promote the welfare of the minor; that he will not fail to render an account; that he will not violate the law; that he will furnish a bond to insure the honesty of the administration, and that he will always consider himself bound by the remembrance of his oath. We enact the present law to provide for the security of those who have need of curators, and if We should subsequently think of any other salutary measure, We shall not hesitate to include it in this law, in order that We may act as a father to those who We think cannot assist themselves.
EPILOGUE.
  Your Eminence will, by means of suitable edicts, communicate the matters which We have deemed advisable to include in this law to all persons throughout the provinces within your jurisdiction in order that no one may be ignorant of what has been decreed by Us for the benefit of Our subjects.
  Given at Constantinople, on the Kalends of June, during the seventh year of the reign of Our Lord the Emperor Justinian, and the Consulate of John.