The concept of donation in classicalRoman law

(a) Donatio and the contractual scheme

For the classical lawyers, donation was a disposition for the benefit of somebody else, for which this other party was not expected to give any recompense.^[2471] Such a disposition could take many forms:^[2472] it could consist in the transfer of ownership, in the creation or extinction of a limited real right, or in the assumption of a debt; the donor could, by way of stipulation, incur an obligation towards the donee, "cede" a claim to him, discharge one or all of the donee's obligations towards a third party,^[2473] or release the donee from an obligation towards himself.

All these, and similar, legal acts^[2474] constituted a donation if they were intended to confer a gratuitous benefit on the donee^[2475]—if, as several texts put it, the donor acted animo donandi.^[2476] To determine the scope of the Roman concept of donatio is not at all easy. Theoretically, for instance, it would have been possible to include the unrecompensed transfer of a thing for use. But that situation was covered by commodatum; hence: "utendum dare non est donare"^[2477] or, to use a positive phrasing: "qui donat, sic dat, ne recipiat."^[2478] We do find occasional attempts by the Roman jurists to distinguish between donations and similar, related types of transactions.^[2479] What we look for in vain, however, is a crisp and clear-cut definition of donation. The reason for this seems to be that there was no specific necessity to develop one. Donations did not throw up many problems in practice. More particularly, they did not constitute a contract, and hence no need existed to develop and spell out specific requirements on the basis of which an action might be granted?^[2480] Of course, that did not mean that the Roman paterfamilias was not able to promise to make a gift.

Neither did it entail that, where a gift had in actual fact been made, the benefit had to be retransferred because the whole transaction was a legal nullum.

(b) The executed gift

On the one hand stipulations were available for this, as for any other purpose. These all-round transactions were particularly well suited to accommodate the promise of a gift, for they were in any event unilateral by nature and gave rise to an action without being linked to any kind of counterperformance. Also, the oral formality attached to stipulatio constituted, in classical Roman law, the most appropriate of all possible indicia of seriousness.^[2481] Mere agreements or unilateral promises, on the other hand, that were not reinforced by means of a stipulation, were unenforceable.^[2482] Donations, therefore, did not fit into the contractual scheme of classical law. But where a donation had in fact been executed, such disposition was legally recognized even where it was not based on a prior stipulation. The gift did not have to be retransferred, because the disposition was both effective and justified. In other words: donations, while not giving rise to contractual obligations, were taken to constitute an adequate basis for a transfer of assets that had already occurred.^[2483] ^{^[2484] To take the prototype of a donation, the unrecompensed transfer of ownership of a corporeal object: the fact that the transfer was intended to be a gift provided the iusta causa traditionis necessary to effect such transfer and to justify the resulting enrichment of the transferee. To a certain extent one can compare the Roman concept of donation to that of mutuum (or commodatum). In both cases the agreement of the parties {unless it was clothed in the form of a stipulation) did not give rise to an action. Only once the capital sum/object had been handed over did the transaction become legally effective. But, whereas in the case of mutuum the factual handing over brought about a contractual relationship on account of which the lender was able to bring the actio certae creditae pecuniae and thus to claim back an equivalent amount, the effects of a transfer donandi causa were more limited.}

An action to reclaim was of course, not needed, for what is given by way of donation is intended to vest permanently in the recipient. Hence (in contrast to commodatum or depositum) there was neither need nor basis for a contrarium iudicium either. All that was necessary was to secure the donee's position, and that was exactly what the causa donandi was designed to achieve.

The classical law of donation thus offers a fine example of the very economical way in which the Roman lawyers developed their law. They did not set about designing grand new schemes of contractual liability, but contented themselves, in truly pragmatic fashion, with providing those adjustments and refinements that were indispensable to make the existing system work. More specifically, individual types of contract were recognized only where there was a specific need to do so.

If we look at the classical sources handed down to us, we find the Roman lawyers discussing the various incidents of a donation mainly in the context of two rules restricting this sort of transaction: the lex Cincia de donis et muneribus and the prohibition of donations between husband and wife. Both these restrictions as such, as well as the fact that they provided the focal point for analysing the essential elements of a gift, reveal something about the general attitude of the Romans towards the transfer of unrecompensed benefits. Practical and somewhat matter of fact, they tended to be unimpressed by the fagade of unselfish liberalitas and generosity and looked with scepticism rather than with sympathetic feelings upon those who disregarded the precepts of commercial prudence to such an extent that they did not secure some consideration for their performance.^[2485] The bonus vir did not squander his assets but tried his best to preserve them for himself and his familia. Where he did not do so, the inference could be drawn that something might in fact be wrong.

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

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