The lex Cincia de muneribus

(a) Purpose and background of the enactment

The lex Cincia was a plebiscitum dating from 204 B.C.^[2486] It prohibited gifts^[2487] exceeding a certain value, the exact amount of which is unknown to us.^[2488] Only relatives down to the fifth degree, a number of in-laws and step-relatives, persons engaged to marry, slaves in the donor's power or former slaves released by him, and certain other personae exceptae^[2489] were allowed to receive larger donations.

What was the purpose of this enactment? In 204 the second Punic war was drawing to a close. Agriculture and economy were devastated, and thus the lex Cincia, attempting to restrain conspicuous expenditure, may have been part of an austerity programme.^[2490] But it is difficult to see how one can either boost the economy or restrain luxurious living by prohibiting large gifts. Yet, in a more indirect way, the lex Cincia did possibly fit into the general policy pursued by a whole host of leges sumptuariae:^[2491] for what worried the legislator may well have been the fact that sumptuous gifts allowed those families which had been able, in the course of these turbulent times, to accumulate considerable wealth, to corrupt the electorate or recruit a large clientele and thus to "buy" political influence.

But there is an even more convincing alternative explanation for the lex Cincia.^[2492] It has this in common with the suggestion advanced above, that the possible abuse of an influential position raised doubts about the motives behind large-scale gifts. We have seen that "one" did not render services for an agreed-upon, enforceable reward.^[2493] The admired posture, as far as the upper echelons of society were concerned, was that of the generous friend and counsel.^[2494] Acceptance of payment was regarded as demeaning.

Acceptance of a voluntary honorarium, on the other hand, was not; and one is perhaps not wrong in surmising that powerful and well-to-do members of the establishment knew ways and means to make the socially and economically less privileged recipients of their personal services, their help and advice and their patronal protection show their gratitude by offering "presents" of considerable value. The lex Cincia may well have been a move to curb extortionary abuses of this kind.

(b) The application of the lex Cincia

But whatever its background, the Roman lawyers (coming from the influential circles of society themselves) did not enforce its provisions with much vigour. The statute was "imperfecta". It did not contain a criminal sanction;^[2495] neither did it render {nor was it interpreted to render) donations in excess of the ceiling void. Its implementation was left to the praetor, and he was only prepared to grant an exceptio (legis Cinciae) which the donor could raise if he was sued for payment.^[2496] That limited the effect of the lex Cincia to situations where enforcement of an unperformed promise of a gift was sought; once the donation had been executed, it could no longer be attacked. Hence it was crucial to decide for each individual type of donation, when and under which circumstances the transaction was complete (perfecta). A considerable body of literature dealt with this question, and it came to be established, for instance, that release from a debt, granted animo donandi, became unassailable with acceptilatio.^[2497] Concerning the donation of a corporeal object, Paulus drew a distinction:

"Sed in persona non excepti sola mancipatio vel promissio non perficit donationem, in rebus mobilibus etiamsi traditae sine, exigitur, ut et interdicto utrubi superior sit is cui donata est, sive mancipi mancipata sit sive nee mancipi tradita."^[2498] ^{^[2499]}

Besides promissio or (where appropriate) mancipatio, the actual handing over of the object (traditio) was required for perfection; as far as movables were concerned, perfection also depended on whether the donor was still able to bring the interdictum utrubi against the donee.

It has to be borne in mind, however, that perfectio donationis entailed only the exclusion of any remedies under the lex Cincia; more particularly, the praetor did not grant an in integrum restitutio. But the donor was still able to reclaim what he had given by way of the condictio indebiti:

"Indebitum solutum aedpimus non solum si omnino non debebatur sed et si per aliquam exceptionem peti non poterat, id est perpetuam exceptionem; quare hoc quoque repeti poterit, si quis perpetua exceptione tutus solvent." '*

§ 813 I 1 BGB expresses the same principle in these words:

"What was done with the object of fulfilling an obligation may be demanded back even if there was a defense to the claim whereby the enforcement of the claim was permanently barred."

Of course, such an unjustified enrichment claim was available only where the donor had performed without being aware that the donee's claim was barred peremptorily by the exceptio legis Cinciae.

In the course of the classical period, the lex Cincia came to be regarded as outmoded. First, the exceptio was reduced to a purely personal privilege that terminated with the donor's death ("morte Cincia removetur") and that could not be exercised by his heirs.^[2500] The donor himself, after all, had not changed his mind, and his perseverantia voluntatis^[2501] was to be respected. In post-classical times, the lex Cincia soon fell into disuse.^[2502]

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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 lex Cincia de muneribus

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