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p434 Donatio

Article by George Long, M.A., Fellow of Trinity College
on p434 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

DONA′TIO. Donatio or gift is an agreement between two persons by which one gives without remuneration and without any legal obligation (nullo jure cogente), and the other accepts something that has a pecuniary value (Dig. 24 tit. 1 s5 § 8, 16; 39 tit. 5 s19 § 2, 29). It is properly called an agreement, because it is not sufficient that there be a person to give: there must also be a person who consents to receive. He who is incapacitated to dispose of his property or to make a contract is consequently incapable of giving: every person who has a capacity to acquire, is capable of receiving a gift. The exceptions to these rules occurred in the case of persons who were in certain relations to one another, as pater and filiusfamilias; yet this exception itself is subject to exceptions in the matter of peculium. It is essential to the notion of gift that the giver gives in order that the property of the receiver may be increased by the gift: there must be the animus donandi. The object of gift may be any thing which accomplishes this end; for instance, the release of a debt. A gift of the whole of a person's property comprises no more than the property after the donor's debts are deducted. Such a gift is not a case of universal succession, and consequently the donee is not immediately liable for the debts of the donor. By the old Roman law a mere agreement (pactum) to give did not confer a right of action on the intended donee. In order that a gift should be valid, it was required to be either in the form of a stipulatio, or to be made complete at once by the delivery of the thing. Gifts also were limited in amount by the lex Cincia. The legislation of Justinian allowed a personal action in cases of a mere pactum donationis, where there had been neither delivery of the thing which was made a gift, nor stipulatio (Cod. 8 tit. 54 s25, 29; 35, § 5; Inst. 2 tit. 7 § 2). Thus, the promise to give was put on the footing of a consensual contract, when the promise related to a gift of less than 500 solidi: when the gift was above 500 solidi, a certain form was required, as will presently be explained, and the form was required whether the gift was perfected at once by traditio, or was only a promise to give.

If a man gave something to another for the benefit of a third person, the third person could sue him to whom the thing was given (Cod. 8 tit. 55 s3).

It was required by the legislation of Justinian, that a gift which was in value more than 500 solidi, must, with the exception of some few cases, have the evidence of certain solemnities before official persons (insinuatio). If these formalities were not observed, the gift was invalid as to all the amount which exceeded the 500 solidi. Some few kinds of gifts, which exceeded 500 solidi, were excepted from the solemnities of insinuatio.

If the gift was not perfected at once by delivery, or what was equivalent to delivery, the donee might sue ex stipulatu, if there had been a stipulatio; and if there had not, he might sue by virtue of the simple agreement (Cod. 8 tit. 54, De Donationibus, s35 § 5). The right of action which arises from the promise to give is, according to the Roman system, the real gift (Dig. 50 tit. 16 s49): the actual giving was the payment of a debt. Accordingly, if there was a promise of a gift between a man and a woman before their marriage, the payment during the marriage was a valid act, because the promise was the gift, and the payment was not the gift (Savigny, System, &c., IV.119). The heredes of a man might impugn the validity of a donatio inofficiosa by a querela inofficiosae donationis: and the donor could revoke his gift if the donee was guilty of gross ingratitude towards him, as for instance, of offering violence to his person (Cod. 8 tit. 56 s10). But the donor's claim was only in personam, and he could not recover the fruits which the donee had enjoyed (Inst. 2 tit. 7 § 3; Savigny, System, &c., vol. IV § 142, &c., Schenkung; Mackeldey, Lehrbuch, &c., § 421, &c., 12th ed.; Ortolan, Explication Historique des Instituts, vol. I p472, 5th ed.).


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