7.3 Gifts

(Inst.2.7., D.39.5., C.5.3.)

Strictly, a gift (donatio) was not a mode but a ground of acquisition of ownership, i.e. it constituted iusta causa (as we have seen) in traditio and usucapio.

7.3.1 Donatio inter vivos

Such gifts, fully operative in the donor's lifetime, were subject to considerably detailed rules, of which only a brief summary will be attempted.

As regards form, a formal agreement to make a gift, e.g. by stipulatio (see gener­ally 9.4.3) was enforceable, but not an informal arrangement, at least in early law. In the Empire the position was gradually relaxed; under Justinian, informal agree­ments became generally enforceable. There were some important restrictions on who could be the parties to a gift. For example, gifts between husbands and wives were banned, as we have seen, with the exception of dowry and donatio propter nup- tias (see 5.2.5.5). Gifts between a paterfamilias and those in his power were generally invalid, but not if the child was out of potestas.

Restrictions were placed on the maximum amount of a gift. The lex Cincia c.200 BC provided that gifts above a certain limit (unknown) were unenforceable except in favour of relatives. However, if the gift was actually transferred, the donee could retain it. The motivation behind the lex Cincia appears to have been the distaste felt in some quarters for ostentation and luxury.

Could the donor change his mind? The general rule was that once a gift was made, it could not be revoked. But if the gift was made subject to a specific limita­tion or for some stated purpose that was not satisfied, the donor could revoke. A patron could revoke a gift to his freedman for ingratitude. In the late Empire ingrati­tude by any donee became a ground for revocation; and it was provided that a gift to a freedman by his patron was revoked on the birth of a child to the patron if the gift had been made when the patron was childless.

7.3.2 Donatio mortis causa

(D.39.6., C.8.56.)

A gift mortis causa was a gift made in contemplation of death. Such contempla­tion could be general, or it could be the result of the fear of some impending danger or specific event:

Paul, Subimis, book 7: It is permissible to make a gift mortis causa not only on grounds of weak health, but also on grounds of impending danger of death due to enemies or robbers or the cruelty or hatred of a powerful man or when about to undertake a sea voyage, [Gaius, Common Matters or Golden Words, book 1][4]: or to travel through dangerous places, [Utpian, Institutes, book 2][5]: or when one is worn out by old age, [Paul, Sabmtis, book 7|[6]: since all these circumstances represent impending danger. (D.39.6,3.-6.)

Such gifts were hybrid in character: they were made inter vivos, but did not take full effect until the contemplated death of the donor occurred. Ownership in the prop­erty usually passed to the donee on the making of the gift, but the gift was revocable before death. Automatic revocation occurred if the donee predeceased the donor, or if the latter became bankrupt.

The donor of a gift in contemplation of death differed in his motivation from the donor of an inter vivos gift, as the following passage explains:

Paul, Lex Julia et Papia, book 6: But a gift mortis causa differs considerably from the true and absolute sort of gift which proceeds in such a way that it can in no circumstances be revoked. In that sort of case, of course, the donor wishes the recipient rather than himself to have the property. But the person who makes a gift mortis causa is thinking of himself and, loving life, prefers to receive rather than to give. This is why it is commonly said: 'He wishes himself rather than the recipient to have the property, but, that said, wishes the recipient rather than the heir to have it'. (D.39.6.35.2.)

The special nature of gifts in contemplation of death was evident from the fact that they were not subject to the lex Cincia (see 7.3.1); nor did the restrictions on gifts between spouses, or between parents and children, apply. However, as regards form, gifts mortis causa could generally be made in the same way as inter vivos gifts, and were subject to the registration requirements introduced in the later Empire. Justinian provided an additional method: such gifts could be made in the presence of five witnesses, in which case the effect was similar to that of a testamentary legacy—possession of the property was not transferred until the donor's death.

A gift mortis causa obviously bore some resemblance to a testamentary gift. The essential difference was that the former was valid without the need for a will: the gift operated outside (and irrespective of) any will that the donor might have made. Moreover, it seems that in classical law at least the donor could not revoke the gift. Nevertheless, there was a distinct tendency during the Empire to assimilate such gifts with legacies by applying common rules to both.

The concept of gifts mortis causa has proved to be an enduring one. Such gifts continue to be made, and the rules applicable in English law are not far different from those of classical Rome (see 11.3.3: Sen v Headley [1991] Ch 425).

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FURTHER READING

On usufruct, see Daube, D., 'Usufruct and Servitudes' (1955) 71 LQR, 342-5, for a discussion of the relationship between the two institutions. Those with a keen interest in specific aspects of this topic may wish to consult Stein, P. G., ‘Generations, Life-spans and Usufructs' (1962) 9 RIDA 3, 335-56; Gordon, W. M., D.33.2.31—'Usufruct and Common Property', in Stndi Grosso IV, 305-13; Thomas, j. A. C., ‘Locate Usumfructum' (1971) IJ, 367-71; Tellegen, J. W. and Tellegen-Couperus, O. E·, 'Joint Usufruct in Cicero's Pro Caecina’, in New Perspectives, 195-205.

On traditio, see Gordon, W. J. (1970). Studies in the Transfer of Property by Traditio, Aberdeen: Aberdeen University Press, for a discussion of traditio (in its various forms) from classical Roman law and throughout the historical development of the European his commune Into modern Scots law.

A good recent casebook, translated from German, on Roman property law is that of Benke, N. and Meissel, F. S. (2019). Roman law of Property: Origins and Baste Concepts of Civil Law 1 (Trans. Grasl, C. M.), Vienna: Manz. This book covers all the topics raised in the previous two chapters in casebook format with texts and discussions. Although the discussion is geared towards Austrian and German law students, it remains very useful also for a more general overview.