Introduction
(a) Promises of gifts and executed gifts
"Throughout the world it is regarded as normal for binding promises to be given for payment or some counterpart in kind. Gifts and gratuitous promises, on the other hand, are regarded as something abnormal and the law always treats them in a special way."[2460]
Take the promise to confer a benefit on somebody else, for entirely altruistic reasons.
Does the donor really want to be bound? If so, one would have to grant the promisee, even where he is the beneficiary, an action to enforce such a promise. But would it not be slightly odd, if not invidious, to offer legal protection to someone who has not sacrificed anything, and thus to see the donor caught by his own altruistic act? On the other hand, the donor's act may have created a basis for reasonable reliance on the part of the donee; this is particularly true where the donation has already been executed and where the donee may therefore well have made further dispositions over what he has in fact received. Hence the distinction that may be drawn between promises of gift and executed gifts; for while a legal system may be perfectly happy to accept the latter as valid, without further ado, it does not follow that the former must under all circumstances be binding too. In fact, as far as mere promises are concerned, legal systems usually require the donor to demonstrate his seriousness of purpose; they either insist on a special formality as evidence of the intention to be legally bound, or they go even further and lay down general indicia of seriousness[2461] in order to distinguish promises which are legally significant and thus enforceable from those which are not.(b) Reasons for policing the transfer of gratuitous benefits
But there are other problems that have to be considered. Genuinely altruistic behaviour is not really all that common, and the spiritually edifying notion of the "cheerful giver" (whom God loveth)[2462] does not in general correctly reflect the realities of life.
Gifts can be made for a whole variety of reasons. Many of them are perfectly acceptable per se, but raise questions as to whether the transaction can still properly be called a donation: a benefit may have been transferred as a remuneration for certain services rendered by the other party or as a reward for an act of rescue, or the donor may have wished to induce the donee to act in a certain way or to produce a certain result. In this latter instance, the donor will often impose a charge on the gift (donatio sub modo), with the result that the transaction includes a strong element of exchange. But then there is also a whole variety of situations where the donor does not appear in a very respectable light at all: the gift may have been intended to bribe public officials, to "purchase" political influence (Germany has just been shaken by the "Flick" scandal, stirred up by the discovery of generous contributions by a large firm to political party funds), or to remove certain assets from an insolvent estate before the creditors are able to seize it. Donations are often made with tax advantages in mind, or in order to sidestep and evade statutory provisions affecting either the position of the donor or the validity of an exchange transaction. They can also be used to undermine the formal requirements relating to the making of a last will;[2463] [2464] [2465] in particular, donations can lead to a substantial depletion of the donor's assets, which may in turn jeopardize the prospects of inheritance of the donor's next of kin.[2466] Every legal system that accepts the notion of forced heirship[2467] must therefore face the problem that gifts inter vivos may diminish the estate transmissible on death to such an extent that the compulsory portions of the necessary heirs may be eroded.(c) Conceptual problems
There are thus many reasons for policing the transfer of gratuitous benefits.
But any such policing requires first of all some conceptual clarity about what a donation is. Is it a contract or a unilateral promise? If a contract, is it a consensual or a real one? If not a contract, when and how does it become binding? Or does it not become binding at all? Is it merely a disposition, on account of which an unbargained-for transfer of assets takes place: the position of the donee being not dissimilar, under those circumstances, to that of an heir after the death of the testator? Is it, as Savigny[2468] [2469] put it, not a specific type of transaction but "ein allgemeiner Charakter.. welchen die allerverschiedensten Rechtsgeschäfte annehmen konnenV®What are the elements of a donation: a permanent diminution of the donor's capital resources, an increase in the resources of the recipient and, as the essential test for distinguishing gifts from other transactions, the intention of the donor to enrich the donee? Or does it suffice that the impoverishment involved be unrecompensed? The legal analysis of donation raises intricate problems[2470] and, in dealing with them, modern civil-law legal systems have preserved many characteristic elements of their Roman heritage. Roman law itself, however, here as everywhere else, was not static, but went through various stages of development. As far as donations are concerned, we should look at three different periods: classical law, the Constantinian reform and the position at the time of Justinian.
2.
More on the topic Introduction:
- Domingo Rafael. Roman Law: An Introduction. Routledge,2018. — 252 p., 2018
- Chapter 1 Introduction
- Introduction: Themes and Literature
- Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p., 1976
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