IX. Obligations of Blood-Relations and Tutors

133. What are the obligations of other blood-relations? - As regards other blood-relations, ascendants and descendants, the obligations are generally the same, with due proportion, as those of parents with respect to children, and vice versa; for all these, by reason of generation, one from another, are mutually bound by the strict bond of piety, especially if, when parents are lacking, ascendants undertake the care of grandchildren. Theologians commonly teach that they ought to undertake this care in defect of parents and tutors, so long as the latter are minors, and as far as the former conveniently can. Other things being equal, the paternal grandfather is bound to undertake that care before the maternal grandfather, as the doctors commonly teach.

As regards brothers and sisters, they ought to pursue one another with mutual love, not only with a common affection, as other men, but with a special affection on account of the close bond of blood. They ought also to succor one another as regards the necessities of life, not only in extreme, but also in grave necessity. L. 340.

The remaining consanguineal and collateral relatives are likewise bound to furnish one another love and help in necessity, according to the order of degrees of consanguinity. The reason is that the conjunction of blood and descent from the same stock and principle of life introduces this special obligation of piety. Whence, in defect of parents, or quasi-parents, and of ascendants, collateral consanguineals also succeed to the obligation of furnishing support to one in need, in ordinary necessity and beggary, if they can, or unless others are present who wish liberally to relieve a similar necessity. Struggl. 20.

"It must be said that from that which is proper to himself someone ought more to satisfy his parents, or those from whom he has received greater benefits." St. Thomas, 2.2, q. 62, a. 5, ad 4.

Because conjunction with other consanguineals is not so great as with parents and children, so that piety is gravely injured against them, a certain greater damage inflicted upon them is required, but less against brothers and sisters than as regards others less closely joined. But against more remote relatives there is absent a special grave malice against piety.

134. What of support to be furnished as regards various consanguineals and affines? - By the law of piety some ought to provide for, or nourish, others if they are in necessity. To furnishing support there is obligated in the first place the spouse; secondly descendants; thirdly ascendants; fourthly the son-in-law and daughter-in-law; fifthly the father-in-law and mother-in-law; finally brothers and sisters; and indeed this obligation is reciprocal. C. I. 132, 138-142; C. G. 203, 205-207, 212; C. L. 172; C. H. 143 seqq.; C. B. 1601 seqq.

Ascendants are bound in the order of proximity, C. I. 138; C. H. 144; C. L. 173. But descendants are bound in that order in which they would be called to the legitimate succession of the needy person, C. I. 142; C. H. 144. - Support is owed to brothers and sisters if they are in very grave necessity, C. I. 141; C. H. 143. Cf. C. L. 174. In those places in which the civil law does not oblige brothers and sisters to furnish support to brothers and sisters, nevertheless natural charity and piety gravely urge, if brothers or sisters are constituted in grave necessity. - But as regards other more remote consanguineals, besides brothers, if they are in grave necessity, the obligation is still present, although light, "since toward them also there is some obligation of piety, although not so strict." L. 339, l. 3, n. 946; Lugo, de Iust. et Iur., d. 24, n. 176. Yet the obligation of piety is present more strictly toward other consanguineals of the direct line. - The mother-in-law and daughter-in-law lose support if they pass to other nuptials, or if the spouse from whom the affinity arose has died, leaving no descendants. C. I. 140; C. G. 206.

Parents cannot deny support to children because, with the parents unwilling, they contracted nuptials with unworthy persons. L. l. 3, n. 337, 949. "Sanchez, etc., say that the father is bound to furnish support not only to the son, but also to that son's wife, although he married her without a dowry and against the will of that son's father. Besides, Azor, etc., hold that the father ought to nourish the son even if the son had wickedly consumed the portion already previously handed over to him." L. 336, 337. "But it is certain that parents are bound to furnish support to children, even spurious children, and even those born from condemned intercourse, if they cannot be sustained from elsewhere." L. 951. - Nor indeed generally is it lawful to deny support because he who seeks it has come to want through his own fault, except to brothers and sisters from C. I. 141; and from C. B. 1611 only strict sustenance is owed. - From the same C. B. 1963, 1969, if, when the inheritance has devolved, an heir yet to be born must be awaited, the mother, who cannot provide for her own sustenance, can demand from the inheritance itself support suitable to her social condition until the birth. Likewise the heir is bound to furnish support to the members of the deceased's family for a month from the devolution of the inheritance.

How much must be furnished is to be estimated from the necessity of the petitioner and from the faculties of the giver. C. I. 143; C. G. 208; C. H. 146; C. L. 178, 179. Support comprises food, clothing, dwelling, and other things necessary for life, and, according to circumstances, instruction suitable to the person. C. I. 846; C. H. 142; C. B. 1610; C. L. 171. The option is given either of receiving the needy person at home, or of supplying him a pension, unless the judge has established something else. C. I. 145; C. G. 210; C. H. 149. - But because this obligation of furnishing support is from charity and piety, not from justice, he who does not furnish it is not bound to restitution; nor is he obligated toward the heirs of the dead man who had a right to it. C. I. 144, 146; C. G. 209; C. H. 148-150, 151. It is otherwise from C. A. 171; C. L. 176. - L. 339, 356, 946, 949, 951.

The obligation of furnishing support can vary, according as the conditions of him who furnishes it, or of him who needs it, have varied. C. I. 144; C. G. 209. It wholly ceases when he who needed support has died, although it was owed to him by sentence of a judge, C. I. 146, or by donation or legacy, because support is personal. Therefore if by legacy it was owed for ten years, and before that he to whom the support had been left died, the right of support does not pass to his heirs. - La-Croix, l. 3, p. 1, n. 709 seqq.

135. What of damages to be repaired? - The question is generally raised: whether a superior is bound to repair damage caused by his subjects? - R. Affirmatively, in the external forum, according to the various laws in force in various regions. Generally this obligation of repairing damage, on account of another's act, is either from negligence in the custody and vigilance to be employed, or from the choice of persons whom we deputize to exercise an industry in our place. Cf. C. I. 1153; C. G. 1384; C. H. 1903, in which express mention is made: 1. Of the father, and, he being dead, from C. G., failing him from C. L., of the mother, in relation to minor children living with them; and in C. I. and in C. H., of tutors in relation to those of whom they are administrators, likewise living with them. 2. Of the master and of the mandator in relation to servants and mandataries in the exercise of the functions to which the former destined them. 3. Of the instructor and artisan in relation to pupils, during the time in which they are under their vigilance. - But concerning the husband in relation to the wife, nothing is established. - Such an obligation, whether in parents, or in tutors, or in masters and mandators, or in preceptors and artisans, ceases, from both Italian and French law, whenever they prove that they could not have prevented the act for which otherwise they would have to answer, or, from C. H., that they employed due diligence. - C. G. 1424.

From C. B. 828 seqq., children before the completed seventh year do not answer at all for damage inflicted. After the seventh year and before the eighteenth year, they answer for it if necessary discretion was not lacking. - But those who ought to watch over them must repair the damage, if they have omitted to employ due diligence. The same is established concerning him who entrusts some business to another, if this other inflicts damage on another in the execution of that business, unless the mandator employed ordinary diligence.

R. Negatively, generally speaking, in the internal forum. The reason is that the quality of superior brings only the burden of rightly governing subjects, but by no means an obligation from a debt of justice of preventing damages caused by one's subjects, and much less those caused by others who are not subjects; unless either from a special contract, or from a special office, he ought to prevent them. - Hence a private schoolmaster who does not correct pupils who steal or detract from others, although he ought to imbue them with good morals and receives pay for this reason, is nevertheless by no means bound in restitution to those from whom the pupils steal or whom they detract, since nothing was transacted with them. - Generally speaking; for those who are over others are bound for damage if they do not prohibit it in that matter or office in which they ought to be over them; for example, if a pharmacist's apprentice gave poison instead of medicine, provided they are not without grave fault. The same altogether holds if damage happens to another from your animal or your thing with your fault; if, for example, your dog, untied, bit someone entering, or your house, collapsed from age, killed several. - Inst. l. 1, t. 7; l. 4, t. 5, 8; Dig. l. 47, t. 5; C. A. 1308, 1309, 1314-1316; Gousset 963 seqq.

136. What are tutor and curator, and to whom are they given? - To those who cannot govern themselves and their own things, if they are not under paternal power, there is given a tutor or curator. C. A. 187; C. B. 1773. - Tutor and curator differ among themselves: 1. Because a tutor is given principally to the person, secondarily to things. But a curator is given either to things only, or principally to things and only secondarily to the person, at least speaking regularly. C. A. 188, 209; C. B. 1793, 1794, 1909. - 2. They differ because a tutor cannot be given for a definite thing and cause. But a curator can be given for definite things and determined causes. And thus C. I. 980; C. B. 1961 assign a curator to an inheritance accepted with benefit; C. A. 274, 690; C. L. 157 give a curator to the future offspring about to be born, to an inheritance, and to an inheritance when legacies burden it entire and the heir refuses to administer. C. B. 1911; C. L. 55 seqq. give a curator to the goods of an absent person. Cf. C. B. 1913, 1914. - 3. He who is under tutela can do nothing at all. He who is under cura, if he is an emancipated minor, can, with the assistance of the curator, exact lots and act in court, C. I. 318; C. G. 482; if he is an adult declared incapable, or deaf and mute or blind from birth, he can do all things with the assistance of the curator. C. I. 339, 340; C. G. 513; C. A. 269, 270. - 4. They differ from the Common Law, because a tutor is regularly given to a pupil or one under puberty, and to him who is compared to one under puberty. But a curator is given to a minor or one after puberty up to the twenty-fifth year of age. Inst. l. 1, t. 13, 23; Ferraris v. Minor, n. 10 seqq.

From More Recent Law, a tutor is given to a non-emancipated minor and to one interdicted from the administration of goods. But a curator is given to a son soon to be born; to a minor called to an inheritance; to an adult declared incapable because of infirmity of mind, or prodigality; to an absent person; to a deaf-mute, or one blind from birth. C. I. 236, 241, 245-247, 277, 314, 315, 329, 330, 339, 340; C. G. 405, 450, 492, 505, 509, 513; C. B. 1773, 1895, 1901, 1909-1914; C. L. 55, 65, 317, 337, 349, 356. - From C. H. 199, 200, no distinction is had between tutor and curator as regards the name; but as regards the thing it is preserved. For a tutor is given both to the person and goods, and only to goods. Subject to tutela are non-emancipated minors, the insane, deaf-mutes, prodigals, and the interdicted. - Almost the same is had in C. A. 187, 188, 269, 270, 275. - In any tutela, however, a protutor also is to be chosen, whose office it is to supply the place of the tutor. C. I. 265; C. G. 420 seqq.; C. H. 227 seqq.; C. A. 211, 215; C. B. 1701, 1799. - L. 917; C. L. 187 seqq.

137. Who designate a tutor; who can be tutors? - R. to the first. Those who can give a tutor are: the parent who dies last, whether by testament or by public instrument, C. I. 242; cf. C. A. 196, 197; C. H. 206; the family council, if the parent has not designated one and those whom the law designates are lacking, C. I. 245; cf. C. A. 198, 199; C. H. 204, 211, 212, 231; the council of tutela and the judge in certain cases, C. I. 248, 261, 262; C. A. 189, 190, 199, 204. - The family council is constituted for legitimate children; the council of tutela for illegitimate, namely recognized, children, C. I. 249, 261. - C. B. 1774 seqq., 1852 seqq., 1858 seqq., 1895.

R. to the second. Since the tutela of minors is a public office, filled with many cares, not all can or ought to assume it, nor can or ought all refuse it, but only persons capable by law and designated by law. C. I. 268 seqq.; C. G. 427 seqq.; C. H. 202, 203, 237 seqq., 244 seqq.; C. A. 192 seqq., 201; C. B. 1963 seqq. Tutela and cura by law belong to the spouse, the father, the mother, the paternal grandfather, the maternal grandfather, C. I. 252, 330; C. G. 402 seqq.; C. B. 1776 seqq.; and, failing these, to nearer consanguineals, C. A. 198. Cf. C. I. 200, 201, 227 seqq. - Inst. l. 1, t. 14; 200, 253; C. B. 1785 seqq.; C. H. 231.

138. What are the offices of tutor and curator? - The tutor has care of the person of the minor, and of his education, especially religious education, and he represents him in civil acts, and merely administers his goods. C. I. 277-296, 318; C. G. 450-457, 458; C. H. 261 seqq.; C. A. 188, 205, 216, 243; C. B. 1793, 1801 seqq.; C. L. 269 seqq., 258 seqq. Hence he cannot exceed the limits of administration. C. I. 296 seqq., 301; C. G. 456 seqq., 482; C. A. 229, 248; C. L. 269, 275; C. B. 1804, 1831. - The curator furnishes assistance and authority to him who is under his care. C. I. 318, 339, 342. - Therefore the power of tutor and curator is confined within definite limits, and in any matter of graver moment depends on the family council and even on the homologation, or confirmation, of the tribunal. C. I. 296, 297, 301; C. G. 457-1407; C. H. 269 seqq., 293 seqq.; C. A. 216, 222, 263 seqq.; C. B. 1821 seqq.; C. L. 74 seqq., 263 seqq.

Therefore both tutor and curator are bound to employ great fidelity in their own office, as a good father of a family, and if they fail gravely in fulfilling it, they sin gravely, even against justice by force of quasi-contract, and are bound to compensation of damages. C. I. 277, 302; C. G. 450, 469; C. A. 209, 210, 243; C. B. 1805, 1833, 1948; C. L. 220 seqq.; L. 341, 391, 918.

The tutor, unless he is the paternal or maternal grandfather, must give caution, from which, however, the family council can dispense him. C. I. 292. Cf. C. B. 1844; C. H. 252 seqq. From C. A. the tutor is not obligated to caution. Besides, at the beginning of the tutela he must draw up the state and inventory of the minor's goods. C. I. 281; C. G. 451; C. A. 222, 223, 224; C. H. 262; C. B. 1802.

Each year, while the tutela endures, unless he is the paternal or maternal grandfather, he must render an account of his administration to the family council, C. I. 303; or to the subrogated tutor, C. G. 470; or to the pupillary judge, C. A. 238, 239. Cf. C. H. 279 seqq.; C. B. 1837 seqq.; C. L. 249 seqq. - When the tutela has been completed, he is likewise bound to render an account of his administration, C. I. 302; C. G. 469; C. H. 281; C. B. 1890, and he is liable for less diligent administration, unless he is freed by legitimate prescription. C. I. 303; C. H. 287; C. B. 1835. - Inst. l. 1, t. 21.

139. Note: A tutor, or protutor, cannot buy or rent the goods of the minor, nor can he accept a cession of the minor's rights. No convention can be made between the tutor and the minor, nor can any testamentary disposition useful to him be made, before the account of the tutela has been rendered and approved. - Yet he has a right to compensation of expenses made by reason of the tutela, and to a suitable remuneration of his office. - C. I. 300, 307, 769, 1457; C. G. 156, 450, 472; C. H. 269, 270, 978, 975, 276, 285, 755, 571; C. A. 266, 271; C. B. 1785, 1789, 1805, 1834-1836; C. L. 272, 353 seqq.; L. 917.

A tutor or curator cannot make gratuitous donations or remissions from the goods of the pupil; he is constituted not for destroying, but for protecting. Except a remunerative donation; for thus he can, for example, add something to the stipend owed for liberal service, by a liberal donation. - Lugo, d. 23, s. 10, n. 12; L. 341; C. H. 275; C. B. 1804.

140. What are the obligations of the minor? - The tutor is in place of the father. Hence the obligations of minors toward him are similar to those which would be owed to the father himself. But the obligation of the minor toward the curator is less; nevertheless, as regards the administration of goods he ought to be subject to him, and to bear a grateful mind. Yet the minor, whether toward the curator or toward the tutor, is not obligated so strictly to love, reverence, and obedience as toward parents. For his dependence on them is far less than on parents. - C. L. 280; C. H. 265; C. A. 217.

141. What is the value of the acts of tutor and curator? - Those things which are done according to the laws, whether by tutor or by curator, are valid and firm, and therefore by no means subject to rescission, although they were not useful but harmful to him who was under tutela or cura. C. I. 1304; C. G. 1314. - On the contrary, those things which were not done according to the laws, although usefully managed, can be revoked through restitutio in integrum. Through restitution, for meanwhile they are valid. C. I. 1107, 335, 1300; C. G. 502, 1125, 1304; C. H. 1291; C. B. 1829 seqq.

142. How are tutela and cura ended? - They are ended, on the part of the tutor or curator, by his legitimate excuse, removal, death, or by the businesses committed to him now having been completed. On the part of him whose tutor or curator he is, by his majority of age, or by the cause of interdiction or incapacitation having ceased, or by his death. C. H. 278; C. A. 249, 251, 253, 255; C. B. 1883, 1892, 1895, 1912, 1914; C. L. 78.