The prohibition of donationes inter virum et uxorem

(a) Origin and purpose of the prohibition

The second of the above-mentioned restrictions of donations had a much longer life; in South Africa it was not abolished until 1984, when the new Matrimonial Property Act^{41 [2503] came into effect.}

The first references to the prohibition of donations between spouses in legal writings that have come down to us date from the time of Augustus;^[2506] and, indeed, it fitted in with the Augustan marriage laws.^[2507] It will be recalled that Augustus was determined to stop the alarming decline of morality and family life that had set in, particularly amongst the upper classes. On the one hand, he therefore tried to promote marriage and the procreation of issue; on the other hand, he prohibited marriages between free-born citizens and certain women of evil reputation. One of the means of achieving these ends was the imposition of social and economic disadvantages, particularly in the form of severe restrictions on the capacity of those living in a prohibited marriage, or as a childless couple, to take under a will. The spouses must have tried to evade these restrictions by making donations inter vivos, and the prohibition of donations between spouses thus served a useful function in supporting the policies of the leges lulia de maritandis ordinibus and Papia Poppaea. But it did not originate in this context.^[2508] "Moribus apud nos receptum est", said Massurius Sabinus;^[2509] the prohibition was based on the mores maiorum and probably goes back as far as the first half of the 2nd century b.c.^[2510] The explanation usually advanced is "ne mutuo amore invicem spoliarentur donationibus non temperantes, sed profusa erga se facilitate".^[2511] Love makes people do

many strange things.

It was from this perspective that the prohibition of donations between spouses was usually applied.^[2513] Pomponius D. 24, 1, 31, 7 provides an interesting testimony for a teleological restriction of the rule:

"Quod legaturus mihi aut hereditatis nomine relicturus es, potes rogatus a me uxori meae relinquere et non videtur ea esse donatio, quia nihil ex bonis meis deminuitur: in quo maxime maiores donanti succurrisse Proculus ait, ne amore alterius alter despoliaretur, non quasi malivolos, ne alter locupletior fieret."

A is about to grant a legacy to B, or even to institute him as his heir. B asks A to leave what was supposed to pass to him to his (B's) wife, and A complies with this request. Are we dealing here with a (prohibited) donatio inter virum et uxorem? The answer is no. The prohibition does not exist in order to prevent one of the spouses (the donee) from becoming richer. It wants to protect the family fortune of the donor from being squandered due to the follies of love. Where there is no impoverishment on the part of the donor, this rationale does not apply. This is the case, for instance, in our example where what the wife will one day acquire has never been part of her husband's assets.^[2514] The conception of a donation was thus restricted to transactions which had two effects at the same time: an increase in the patrimonium owned by one of the spouses^[2515] and a corresponding diminution of that of the other.^[2516] This antithesis of pauperior-locupletior was the cornerstone for the application of the prohibition of donations between spouses^{[2517] [2518] [2519] [2520] [2521] and, in the course of time, it became one of the essential and characteristic features for donations in general.57}

(b) Purity of marriage

During the classical period, the prohibition was frequently seen in a different light...

"Sextus Caecilius et iltam causam adidebat, quia saepe futurum esset, ut discuterentur matrimonia, si non donaret is qui posset, atque ea ratione eventurum, ut venalicia essent matrimonia."

This is the moralizing tone and tendency that had gained ground in the regulation of family affairs with the great Augustan reform legisla­tion; it also dominates the oratio Severi that has come down to us in D. 24, 1, 3pr.:

"... [m]aiores nostri inter virum et uxorem donationes prohibuerunt, amorem honestum solis animis aestimantes, famae etiam coniunctorum consulentes, ne concordia pretio conciliari viderentur neve melior in paupertatem incideret, deterior ditior fieret."

At the core of the argument there is the ideal image of the purity of marriage. The prohibition of donations between spouses serves to preserve it. For marriage must be based solely on "maritalis honor et affectio";⁵⁹ procreation and the education of children has to be its principal aim. But for the prohibition, the conclusion of marriages might be dependent on calculations of economic advantage, and marriages might in the end become venal; but for the prohibition, the spouses might well be out to get donations from each other and thus neglect their duty to bring up children. But for the prohibition, finally, divorces would be a frequent and undesirable consequence of the fact that one of the spouses proved to be less generous than expected.⁶⁰ Occasionally these moralizing views found their reflection in the application of the law; thus, for instance, the prohibition was not extended to cover donations to a concubine, "quia non erat affectione uxoris habita, sed magis concubinae".^[2522]

A further interesting reason for the prohibition of donationes inter vivum et uxorem, incidentally, was advanced by Plutarch.^{[2523] [2524] [2525] [2526] In his view spouses should share all their wealth with each other.}

(c) The application of the prohibition

Unlike the lex Cincia, the prohibition of donations between spouses was vigorously enforced. Infringement entailed invalidity.⁶³ The donor of a corporeal object remained its owner and could therefore vindicate it.⁶⁴ However, the rule was subject to certain exceptions. Donations between spouses were valid where they were designed to provide maintenance or where the donor acted in compliance with a moral duty or with what was demanded by common decency.⁶⁵ These exceptions were not in conflict with whatever one considered to be the rationale of the prohibition. Furthermore, as in the case of the lex Cincia, the perseverantia voluntatis was respected; if the donor died without having revoked the donation, it became valid.^[2527] Donations mortis^[2528] or divortii causa^[2529] were valid too, for at the time when the transaction became effective, the marriage had, sadly, come to an end. Donations of this kind were normally intended to secure the wife's maintenance; even though they did lead to a transfer of assets between the families of the spouses as a consequence of the marriage, such transfer did not occur while the marriage lasted, and it did not endanger the moral foundations and ultimate goals of that institution, at least not to the same extent as normal donationes.

In actual practice, the prohibition never succeeded in suppressing donations between spouses.^[2530] This is reflected in the great number of cases contained in D. 24, 1 as well as in some of the exceptions which the jurists obviously felt compelled to admit. In many instances the spouses tried to disguise their donations and concluded, for example, a contract of sale at a low price.

"[ait] venditionem donationis causa inter virum et uxorem factam nullius esse momenti, si modo, cum animum maritus vendendi non haberet, idcirco vendi­tionem commentus sit, ut donaret: enimvero si, cum animum vendendi haberet, ex pretio ei remisit, venditionem quidem valere, remissionem autem hactenus non valere, quatenus facta est locupletior: itaque si res quindecim venit quinque, nunc autem sit decem, quinque tantum praestanda sunt, quia in hoc locupletior videtur facta."^[2534]

His answer was partial invalidity, based on a fictitious splitting up of the transaction. On the one hand, there was a (valid) contract of sale (for the whole sum), on the other hand an agreement to grant a remission of part of the price owed, and this latter agreement was invalid in so far as it had enriched the wife. According to utile per inutile non vitiatur, the invalidity would be confined to whatever of the remissio mercedis constituted a donation in terms of the pauperior— locupletior rule. Consequence: the wife would have to pay the difference between what she had originally agreed to pay and the true value (at the time of litis contestatio, not at the time the contract had been concluded) of the slave. Thus, if a slave that was worth 15 had been "sold" for 5, but had in the meantime decreased in value (to 10), the wife would have to pay another 5.

In post-classical times, the prohibition of donations between spouses became more and more unpopular.^[2537] In the West it gradually disappeared; in the East, however, it continued to exist. It was received in continental Europe and became part and parcel of the ius commune.^[2538] In some countries there were customs to the contrary, in others further exceptions came to be recognized.^[2539] In Germany it was abolished only by the BGB. In South Africa a refined set of rules, based on the writings of the ius commune and amplified by a whole variety of court decisions, still existed until recently.^[2540]

5.