The law of donation under Constantine

(a) Promotion of acts of generosity

To recapitulate: classical law did not look at donations as a special type of transaction; it merely recognized them in so far as they could provide a causa for various types of disposition such as stipulationes, mancipationes, in iure cessiones or traditiones.

A donation could also be the basis for the acquisition of ownership by way of usucapio or longi temporis praescriptio. It was Constantine who went one important step further towards the "emancipation" of donations. He was favourably disposed towards such acts of liberality^[2541] ^{^[2542] and himself made large donations to, among many others, the poor and needy, to widows, soldiers and churches⁸⁰ (even though he did not go so far as to donate Rome and the entire Occident to Pope Sylvester)?^[2543] His attitude was influenced by the teachings of Christianity, ^[2544] which was gradually gaining ground and which promoted acts of generosity and charitableness. Furthermore, post-classical practice was obviously no longer able to master the complexities of classical law. By the time of the 4th century A.D., the law relating to donations appeared to be riddled with difficulties. Two problems were particularly apparent. On the one hand, the implementation of the lex Cincia involved subtle distinctions between donationes perfectae and those that had not yet been completed (inchoatae); and shrewd advocates were able to sow confusion and uncertainty by raising intricate arguments and trying to give out donationes perfectae as imperfectae and imperfect ones as perfect.^[2545] On the other hand, the classical donation did not represent a legal act sui generis, but was tied to a variety of other transactions, many of them formal ones. But these forms had by now been whittled down considerably, and all the uncertainties surrounding particularly the requirements for a valid stipulatio or for the transfer of ownership by way of mancipatio, were bound to affect both the law and the practice of donations too.⁸⁴ Constantine therefore set out to simplify and streamline the law.⁸⁵ He recognized donations as legal transactions in their own right, albeit in a peculiar way.
For he did not conceive of donations as contracts in the classical sense: as legal acts which have the effect of bringing into existence one or several obligations. The mere informal promise to make a donation remained unenforceable. Donation was conceived by Constantine as a bilateral act that was immediately executed and that led to the instant transfer of ownership from the donor to the donee. Instead of being the causa of the transfer, it became one of its modes.⁸⁶ This was in line with the general development of post-classical law away from the classical distinction between obligatory act and transfer of ownership. The contract of sale, too, was now, once again, regarded as a transaction that had to be concluded and executed at one and the same time, and that was no longer merely an obligatory act providing the causal basis for the transfer of ownership by way (usually) of traditio; it involved the transfer of ownership itself.⁸⁷ (b) Formalities
If donations, under Constantine, were thus put on a par with the contract of sale as far as their legal effects were concerned, they were at the same time singled out in that a special form was required for their conclusion. Every donation had to be recorded in a document that had to be drawn up in front of witnesses and that had to contain the name of the donor, the designation of the gift and proof of the donor's title.⁸⁸ Secondly, the gift had to be handed over "advocata vicinitate" (before witnesses drawn from the neighbourhood), and finally, official registration of the gift (insinuatio) had to be effected. Non-compliance entailed invalidity of the donation.⁸⁹ These formalities were designed to avoid invidious and complex legal proceedings by facilitating proof and by preventing non-authorized persons from liberally disposing of somebody else's property. They do not seem to have been intro-
Dietrich V. Simon, Konstantinisches Kaiserrecht (1977), pp.
92 sqq. For details, see vat. 249 (date: A.D. 323); further Levy, Vulgar Law, pp. 138 sqq.; idem, Obligatiottenrecht, pp. 236 sqq.; Archi, op. cit., note 10, pp. 225 sqq.; Biondi, op. at., note 11, pp. 707 sqq.; Kaser, RPr II, pp. 280 sqq., 394 sqq.; Simon, op. cit., note 84, pp. 84 sqq.
Levy, Vidgar Law, p. 146.
Levy, Vulgar Law, pp. 127 sqq.; idem, "Verkauf und Übereignung", (1963) 14 Iura 19 sqq.; William Μ. Gordon, Studies in the Transfer of Property by Traditio (1970), pp. 63 sqq.; Kaser, RPr II, pp. 276 sqq. Contra: Wulf Eckhart Voss, Recht und Rhetorik in den Kaisergesetzen der Spat antike (1982), pp. 131 sqq.
^8K On this latter requirement cf. Gothofredus, ad CT 8, 12, 1: "Ins eins, id est, ex qua causa, quo titulo dominii rem earn quam donat habeat, ne forte rem alienam donet" (Simon, op. cit., note 84, p. 108),
^H" Cf. also e.g. Codex Theodosianus 8, 12, 3. duced for fiscal purposes,⁹⁰ for donations as such were not subject to taxation.
While being inspired by a desire to favour and promote acts of generosity, Constantine's enactment also shows the new authoritarian tendency to regiment the actions of the individual. It was no longer left to the parties to protect themselves against the risks and vagaries of legal dealings, and to the classical Roman lawyers forms such as those prescribed in vat. 249 would have seemed to be in irreconcilable conflict with the prevailing notion of liberty.
(c) Donations and dispositions mortis causa
But there was a further side to the law of donations as it developed in the post-classical period. Gifts inter vivos and testamentary dispositions, both from a functional and from a conceptual point of view, became more and more closely related.⁹¹ Dispositions mortis causa, in West-Roman vulgar law, tended to be regarded as a particular species of donation,⁴² and even in the East they were referred to as donationes in a very broad sense of that term.⁹³ Tertium comparationis, so to speak, was the donor's motive: normally either to provide for his family⁹⁴ or to display generosity towards the Church or the Church-run charitable institutions.⁹⁵ Redemption and salvation of the soul became a dominant concern for the growing number of Christians who pondered about the vanity of the world and the brevity of their lives, and soon it became an established custom⁹⁶ to devote part of one's ^[2546] ^{^[2547] patrimony "ad pias causas".⁹⁷ The last will, of course, was a particularly suitable place to think of such gifts "pro animae remedio",⁹⁸ and the lawyers tried their best to encourage, uphold and privilege bequests "ad pias causas".⁹⁹ A substantial number of decisions have come down to us, and many of them apply to donationes inter vivos too.¹⁰⁰ Gifts can obviously be used to anticipate testamentary dispositions;¹⁰¹ both types of transactions under these circumstances serve the same purpose.}
Both should therefore be approached from the same policy perspective. 6.}

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

The law of donation under Constantine

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