Donation under the ius commune and in modern law

(a) The concept of donation; insinuatio actis

Of the various conceptions of donation which have been en vogue at one

^w C. 8. 55. 10 pr.

⁵⁸ Cf. e.g.

® Artt. 953. 955 code civil; §§ 948 sq. ABGB; § 530 BGB.

^1(B Cf. e.g. RG. \9\0 Juristische Wochenschrift 148.

ⁿ Cf. also § 947 ABGB.

Ulp. D. 23. 3. 33; Ulp. D. 39. 5. 12; Paul. D. 42. 1. 19. 1; for details, see Wieslaw Litewski, "Das 'beneficium competentiae' im romischen Recht", in: Studi in onore di Edoardo Volterra, vol. IV (1971), pp. 563 sqq.; Antonio Guarino, La condanna net limiti del passibile (1975), pp. 44 sqq.; Joachim GUdemeister, Das benejicium competentiae im klassischen romischen Recht (1986), pp. 26 sq., 26 sqq.

“ But see § 1123 1 11 PrALR.

“ For details, see §§ 528. 529. 534 BGB.

^lcs According to C 8, 55, 8, a gift by a patron without filii to his freedman reverts to the patron if he subsequently has children. In the practice of the ius commune, this rule was often applied in an extended version: any gift could be revoked by the subsequent birth of children to the donor (cf. e.g. Voet, Commentarius ad Pandectas, Lib. XXXIX, Tit. V, XXVI); it was not, however, incorporated into the BGB. For details of the development, see William Μ. Gordon, "The Interpretation of C. 8, 55, 8", in: Studi in onoredi Edoardo Volterra, vol. IV (1971), pp. 413 sqq. or other time in the course of Roman legal history, it was, of course, Justinian's that made its way into the ius commune. Donation,^[2568] from the time that Roman law was received in medieval Europe, was an obligatory transaction, which, at the same time, provided a iusta causa for the transfer of ownership.

"Tune solidos non pro denobis florenis, ut quidam consult! responderunt... neque pro aureo anglico, een angelot, ut voluere Bodinfus]... neque pro auro hongarico, quamvis id vulgo receptum tradat Wesembfeccius]... atque ita in senatu Frisiae judicatum referat Sandc [accipiendus]."¹³⁴

One wonders what could have prompted the Frisian Senate to adopt the Hungarian gold coin. In many places local statutes or customs prevailed.^[2571] For Savigny, 500 solidi were 2 000 gulden,^[2572] for Windscheid 500 ducats.^[2573]" The Cape Supreme Court decided in 1886 that the pound sterling was the equivalent of the Roman aureus.^[2574] In post-colonial times this became 1 000 Rand^[2575] (which, in terms of contemporary monetary value does not bear the faintest resemblance to the ceiling set by Justinian).

(b) Restrictive policies in France

Whatever interests Constantine tried to protect by this form of control,^[2576] we have found that the general trend down to the time of Justinian was towards relaxation. It is highly intriguing to see how that trend has occasionally been reversed in more modern history.

Conservation of the fortunes of the aristocracy (which had just been toppled) was, of course, not what concerned the fathers of the code civil. They saw gift transactions as being closely related to the law of succession:^[2579] and here the conviction had grown, since the late Middle Ages and throughout Europe, that the next of kin of every deceased person should be ensured a predetermined and substantial share in his estate.^{[2580] [2581] This principle had become accepted by custom (in the form of a Ugitime) and was incorporated into the code civil. 15° As a result of this, the testator's freedom to dispose of his estate in his last will was limited. It is obvious that gifts inter vivos could seriously undermine this policy: they could substantially diminish the estate transmissible on death and thus jeopardize the prospects of inheritance of the donor's closest relations. This open flank had to be covered;[2582] hence the renewed endeavours of monitoring gift transactions.}

However, the French code civil quite clearly overshot the mark. The courts soon started to map out two main routes of escape from notarization: they exempted the gift of a movable object by delivery from hand to hand (don manuel) from the sweeping provision of art.

The sad fate of the notarized gift in French law provides a good example of what can happen when a legislator tries to overreach himself. Even the unworldly, cheerful giver has reappeared in French jurisprudence to join the struggle;^[2584] for the main purpose of his resurrection has been to free his more mundane and calculating brother-donors from the fetters of notarization (and at the same time to strip them of the benefits of this and other protective mechanisms, especially the right of revocation). Wherever a transaction is tainted by selfish motives rather than inspired by unadulterated generosity, the courts have declared it to be onerous; they have thus been able to sustain and enforce informal gifts by holding that they are not gifts^[2585]—at least not for the purposes of art. 931 code civil.

(c) German law: form and definition of donation

The draftsmen of the German Code took a more balanced point of view as far as the question of authentication and identification of gift transactions was concerned. The requirement of public registration was abandoned and substituted by a comparatively uncomplicated form of notarization,^[2586] which was, furthermore, confined to promises of gift.^[2587] Any defect of form is "cured" by the performance of the promise.^[2588] As a result, the executed gift is valid, whether it be preceded by a formal promise of gift, an informal one or no promise at all. What are the essential elements constituting a gift? § 516 BGB provides the following definition:

"A disposition whereby one person out of his property enriches another is a gift, if both parties agree that the disposition is to occur without recompense."

Certain time-honoured elements, on which this conception of gift is based, are immediately recognizable: we are dealing with a bilateral transaction which must have the characteristic double effect of impoverishing the donor and enriching the donee—the old pauperior- locupletior requirement that had once been carved out to check donations between husband and wife.^{[2589] [2590] What is conspicuously absent from § 516 BGB is any reference to animus donandi.}

(d) Absence of agreed-upon recompense

But however realistic the assessment of the donor's motives, and however penetrating the analysis of the Roman animus donandi requirement, the fact remained that it was an entirely subjective criterion; and to make legal distinctions depend on the purpose or intention of one of the parties is problematic, at least from the point of view of legal certainty. Also, if a donation is based on the consent of the

consequently, that none of the rules governing donations are applicable. Others tried to strike a compromise and contended that, while remuneratory donations had to be classified as donations, they were exempted at least from some of the rules applying to donations: the right to revoke the gift and possibly also the requirement of insinuation and the prohibition of donations between spouses. Most of the Roman-Dutch lawyers drew a distinction between donatio propria and impropria (or mera and non-mera or eygentlijke and oneygentlijke schenkinge). But whereas Voet put donationes remuneratoriae into the first category {Commentarius ad Pandectas. Lib. XXXIX, Tit.

Modem South African law still draws the distinction between donatio mera and non mera; remuneratory and reciprocal donations fall into the second category and are not subject to the formalities and restrictions which apply to a donatio mera. Cf. for instance, Brink. Executors of Van der By! v. Meyer (18321 1 Mem. 552; Fichardt Ltd. v. Faustmann 1910 AD 168 and particularly the very thorough and interesting decision of Avis v. Verseput 1943 AD 331 sqq., esp. the judgments of Watermeyer ACJ (pp. 347 sqq.), Tindall JA (pp. 363 sqq.) and Fischer AJA (pp. 381 sqq.).

The German BGB makes one special concession for a certain group of remuneratory donations: "Gifts which are made in compliance with a moral duty or for the sake of common decency are not subject to recall or revocation" (§ 534). Apart from this, remuneratory donations do not enjoy a special status. In modem practice, difficulties of classification can crop up where employees receive an additional bonus, gratification, etc. from their employers. Remuneration or remuneratory donation? Interesting, too (even though very rarely the cause of litigation), the legal qualification of the tip (usually taken to be extra-remuneration for satisfactory fulfilment of contractual obligations on the part of the waiter, porter, etc., not donation; consequence: taxable as income. On the problems connected with the social institution of the tip, see Rudolf von Jhering, Das Trinkgetd (3rd ed., 1889)). On remuneratory donations in French law, see Dawson, op. cit., note 5, pp. 96 sqq. parties and has to involve an enrichment of the donee, one may well ask whether anything was really gained by bringing in the intention of the donor as a separate requirement characterizing the enrichment: by postulating, in other words, that the purpose of enriching the donee must be to enrich the donee.^[2593] It was Otto Lenel, the distinguished Romanist, who did indeed ask this question and who argued that, in order to mark off gifts from other transactions, one should rather concentrate on a somewhat more objective characteristic of the former, namely the absence of any agreed recompense.^[2594] So convincing was this argument that it had an immediate impact on the traveaux preparatories of the new Civil Code^[2595] and caused the second commission to change the draft BGB accordingly. The notion of the unrecompensed benefit has remained the most significant feature of donations ever since; it has proved to be a useful tool for confining the area within which the policing devices laid down in the §§ 516 sqq. BGB are to be applied. What matters is whether certain actions or abstentions on the part of the donee constitute a recompense for what the donor has given; whether, in other words, the "gift" is connected with a counterperformance. This has to be determined from the point of view of the parties to the contract. In so far the test is obviously not an objective one and can still throw up very difficult borderline questions.^{[2596] [2597] [2598]} But by relating the issue of compensation to the contractual agreement of the parties, one is effectively converting the whole enquiry into a question of interpretation of contract: a question which judges have to face wherever they are dealing with contractual relationships.

(e) English law: the doctrine of consideration

The idea of a recompense or, as one could also put it, a bargained-for exchange, must have a familiar ring to any common lawyer. For in order to define the scope of donation, the German Code is using here, under negative auspices, what has traditionally been, in a positive version, the essential test for the enforcement of promises in the English common law; the absence of any agreed-upon recompense characterizes donations in Germany, the presence of bargain consideration¹⁶⁶ provides the normal reason for enforcing a promise in England. The doctrine of consideration, as it has developed in English and American law,¹⁶⁷ is a most intricate and highly complex legal institution. Its application leads to many odd results.^[2599] The continental lawyer usually perceives it as one of the strange and idiosyncratic features which have the effect of turning the English common law into such an ungodly and impenetrable jumble. But even among Anglo-American lawyers it has evoked dismay, scorn and hostility.^{[2600] 9} The courts have tried to devise a variety of escape routes,^[2601] and legal writers have repeatedly pleaded for the total abolition of this doctrine.^[2602] This is obviously not the place to discuss the merits of these arguments. One point, however, may perhaps be borne in mind. The requirement of consideration (at least originally) is not really all that much of an insular curiosity. At the cradle of what appears to be such a striking and characteristic feature of the common law of contract there stood a midwife wrapped in Roman-Canon dressing: the medieval doctrine of 172 causa.

The word "consideration" originally indicated the reasons or motives for the giving of a promise. A promise without consideration was not binding;^{[2603] [2604] being without reason or motive, it was somewhat silly[2605] and could not have been seriously intended. In the course of time, it has been argued, the concept of consideration was "over­loaded", it acquired}

"three superfluous functions, excluding as elements in any agreed exchange performances that are the subject of pre-existing duty, reinforcing offers, and promoting 'mutuality' "-^[2606]

Atiyah, too (albeit from a totally different perspective) emphasizes that consideration was "in search of a new role" in the course of the 19th century: "the doctrine... tended... to become fragmented into a number of subdoctrines concerned with specific [public policy] issues."^[2607] Perhaps one can say, therefore, that something has gone wrong with the doctrine of consideration^[2608] in the course of the last 200 years. That should not detract from the fact that consideration, as an indicium of seriousness,^[2609] performs a function for which analogous tools are employed in modern civil-law systems.^[2610] More particularly, in the present context, it excludes liability based upon informal promises of gift,^[2611] as did classical Roman and as does modern German law.