Justinian and the law of donations

(a) Donation as a binding contract

Whether the Constantinian reform achieved its aim of simplifying and streamlining the law of donations is very doubtful. If old problems were solved, new practical difficulties¹⁰² and dogmatic obscurities were thrown up.

Accordingly, Justinian did not fix a quota either (but see his advice in Nov. 7, 2, 1: "u'piorov fp

⁹ On the meaning and interpretation of pia causa first in the East-Roman Empire, then (from the Middle Ages onwards) in continental Europe and in England (sub titulo "charitable purposes"), see Reinhard Zimmermann, "Cy-pres", in: Iuris Professio, Festgabe fur Max Kaser (1986), pp. 395 sqq.

⁵⁸ In the Middle Ages, the gift pro animae remedio was taken to be domina testamenti; the main function of the last will was to make provision for the salvation of the soul. Cf. generally Philippe Aries, Geschichte des Todes (1980), p. 233 sqq., 242 sqq; Bruck, op. cit., note 95, pp. 257 sqq.; Liermann, op. cit., note 95, pp. 106 sqq.; Alfred Schultze, "Der Einfluss der Kirche auf die Entwicklung des germanischen Erbrechts", (1914) 35 ZSS (GA) 75 sqq., 98 sqq. In England, too, dispositions ad pias causas were part of every testament; cf. Pollock and Maitland, vof. II, pp. 337 sqq.; Joseph Willard, "Illustrations of the Origin of Cy Pres", (1894) 8 Harvard LR 69 sqq.

⁵⁹ Cf.

^!"° Kaser, RPr II, p. 467.

ⁿ Archi, op. cit., note 10, p. 255.

^Iffi Constantine himself found it advisable Co admit certain exceptions from the new formal requirements he had devised (cf. Codex Theodosianus 8, 12, 5 (A.D. 332, concerning donationes inter liberos et parentes), Codex Theodosianus 3, 5, 3 (A.D. 330, concerning donationes ante nuptias)). To subject every occasional gift to public registration must have been entirely impracticable. Legal practice generally does not seem to have been much concerned about the official requirements: "It is striking to see how often the emperors took occasion to insist on Constantine's requirements." On all this, see Levy, Vulgar Law, pp. 140 sqq. As far as the traditio requirement is concerned, cf. Gordon, op. cit., note 87, pp. 68 sqq. Analysed in detail by Simon, op. cit., note 84, pp. 86 sqq.

¹⁰⁴ Levy, Vulgar Law, pp. 152 sq.; Archi, op. cit., note 10, pp. 272 sqq.; Kaser, RPr II, pp. 396 sqq. that had arisen.^{[2548] [2549]} As far as the gift of a corporeal object was concerned, this meant that the donation provided a iusta causa for the transfer of ownership. Furthermore, the promise of a gift became binding and enforceable again. Such a promise, however, no longer had to be clothed in the form of a stipulation; a mere, informal agreement between the parties was sufficient.^[2550] Using the conceptual material of classical and post-classical law, Justinian had thus managed to create something new: donation as a binding contract^[2551] in its own right. As under Constantine, therefore, donation was conceived of as an independent type of transaction; but, as under classical law, the structure of this transaction was that of an executory contract.

There was one further element which Justinian took over from the Constantinian legislation: the requirement of public registration of the gift. Again, however, he introduced modifications. One of them fol­lowed from Justinian's changed perception of donation, for insinuatio could no longer be confined to executed gifts, but was extended to the newly enforceable informal executory contract of donation. The main trend evident in Justinian's legislation, however, was towards relax­ation of this form of public control over gift transactions. Donations had to be registered only if the value of the gift exceeded 300,^[2552] later 500, solidi.^[2553]® This was a very considerable sum: the solidus was a coin containing 4,55 grams of fine gold, and the quantity of gold that made up 500 solidi would have sold in June 1986 for 58 334 German Marks (to take a relatively stable currency).^[2554] Certain gifts were even exempted from registration, irrespective of the amount involved: those that had been made pro redemptione ab hostibus^[2555] or for the purpose of reconstructing houses that had burnt down or collapsed,^[2556] or gifts to the Emperor,^[2557] to mention some examples.

(b) Enter the cheerful giver

It is obvious that Justinian was very much inclined to favour acts of liberality and to promote generosity, and it is equally clear that this attitude found its basis in the teachings of Christianity. "... human- itas, per quam solam dei servatur imitatio"¹¹⁴ was the general guideline for the application and reform of the law of donation. This is apparent, too, from the wide meaning given to the term "donation"¹¹⁵ and from the fact that the motive for conferring the benefit became its dominant characteristic. The classical lawyers had referred to the animus donandi, but for them it was one of several attributes of a donation. In post- classical law the intention of the donor to donate had emerged as the essential feature establishing this type of transaction and distinguishing it from any other.^1K1 Justinian went yet one step further.

"[D]at aliquis ca mente, ut statim velit accipicntis fieri nee ullo casu ad se reverti, et propter nullam aliam causam facit, quam ut liberalitatem et munificentiam exerceat: haec proprie donatio appellatur."¹¹⁷

This text emphasizes the donor's noble spirit: he must have been moved by the desire to perform an unselfish act of liberality and must not have entered into the transaction for any egoistic motives. Here we see

“ C5, 16, 27, 1.

^B For details, see Kaser, RPr II, p. 398; Pringsheim, Studi Albertario. vol. I, pp. 667 sqq. Levy, Obligationenrecht. p. 240 refers to an "inflation" of the concept of donatio. The term "donation" was now also used to cover pollicitationes. Cf. e.g. Ulp. D. 39, 5, 19 pr. Both had been kept separate in classical law. A pollicitatio was the promise of a gift of money or of the performance of work (e.g. to build a monument) which a citizen made to his municipality, usually on the occasion of his candidacy for a municipal office or for a priesthood ("ob honorem"). Such a promise was binding and actionable in the cogmtio extra ordinem, even though it was based on a unilateral, informal declaration. For details, see D. 50, 12 and Archi, op. cit., note 10, pp. 28 sqq.; Biondi, op. cit., note 11, pp. 677 sqq.; Pringsheim, Studi Albertario. vol. I, pp. 672 sqq.; cf. also T.B. Smith, "Pollicitatio— Promise and Offer", in: Studies Critical and Comparative (1962), pp. 168 sqq. Furthermore, "suffragium" had, in the course of the 4th century, come to be regarded as a variety of donation and was subjected to the formal requirements laid down in vat. 249 (Codex Theodosianus 2, 29, 2). Suffragium was the promise of a reward in order to obtain a public office; it provides a remarkable testimony to the corruption rampant during this period. If the donor obtained the office, he was bound to honour his promise.

"" Pringsheim, (1921) 42 ZSS 273 sqq. (but see supra, note 15); Bruck, op. cit., note 24, pp. 134 sqq.

D. 39, 5, 1 pr. (generally held to be interpolated from "et propter" to "exercat"): Kaser, RPr II. p. 398.

Paulus' (the Apostle Paulus') cheerful giver,^[2558] after having penetrated the ethical and religious postulates of the Greek Fathers of the Church,^[2559] entering into the legal arena. There he was to set out on a long journey through much of the medieval and the modern law of donation;^[2560] for D. 39, 5, 1 pr. appeared at the outset of the title "De donationibus" and was too prominently placed to be able to be overlooked.

Pure altruism and unselfishness, of course, are much to be admired, but, regrettably, are rare in legal dealings. Human nature being what it is, "it is much more common for altruism to be somewhat impure",^[2561] and Justinian's infusion of contemporary Christian ethics into the law was to throw up problems; purity of motive is an unhandy criterion for legal distinctions. Justinian himself, incidentally, recognized one exception: a donation could be made animo remunerandi,^[2562] and it is due to Christian influence, once again, that even a naturalis obligatio came to be recognized to remunerate past services in this way.^[2563] Remunerative gifts^[2564] also received a special treatment in that they could not be revoked.^[2565]

(c) Revocation of donations

For "ordinary" gifts such a right of revocation had gradually been introduced on the ground of ingratitude. This was consistent with the general trend towards ethicizing the law of donations, and it would have been odd to scrutinize the donor's motives without also subjecting the donee's behaviour at least to certain moral minimum standards.

This provision proceeded through the ius commune⁹⁸ into the modern codifications." To see a woman cash in donations from her spouse and then commit adultery, ¹⁰° for example, is unlovely and hardly acceptable. So is the idea of a donee bringing hunger and distress upon the donor and his family by insisting on fulfilment of the promise of a gift. § 519 BGB therefore entitles the donor to refuse such fulfilment if he is not in a position to honour his promise without endangering his own reasonable maintenance or the fulfilment of his obligations to furnish maintenance to others.¹⁰¹ This equitable inroad on the effects of the promise to make a donation goes back, beyond Justinian, into the 2nd century A.D., when Antoninus Pius granted the donor the privilege to be condemned only in "id quod facere posset".¹⁰² From the 16th century this became known as "beneficium competentiae". According to § 528 BGB, the donor may even demand the return of the gift on account of having been impoverished subsequent to its execution. This claim (which has no Roman precursor)¹⁰³ is, however, subject to certain limitations;¹⁰⁴ for the donor's distressed situation must be balanced against the interests of the donee, who may well have relied on the effectiveness of the transfer and made his disposition accordingly.¹⁰⁵

7.