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p434 Donatio Mortis Causa

Article by George Long, M.A., Fellow of Trinity College
on pp434‑435 of

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

DONATIO MORTIS CAUSA. There were, according to Julianus (Dig. 39 tit. 6 s2), three kinds of donatio mortis causa:— 1. When a man under no apprehension of present danger, but moved solely by a consideration of mortality, makes a gift to another. 2. When a man, being in immediate danger, makes a gift to another in such manner that the thing immediately becomes the property of the donee. 3. When a man, moved by the consideration of danger, gives a thing in such manner that it shall become the property of the donee only in case the giver dies. Every person could receive such a gift who was capable of receiving a legacy.

It appears, then, that there were several forms of gift called donatio mortis causa; but the third is the only proper one: for it was a rule of law that a donation of this kind was not perfected unless death followed, and it was revocable by the donor. A thing given absolutely could hardly be a donatio mortis causa, for this donatio had a condition attached to it, namely, the death of the donor and the survivorship of the donee (compare Dig. 39 tit. 6 s1 and 35). Accordingly, a donatio mortis causa has been defined to be "a gift which a man makes with reference to the event of his death, and so makes that the right of the donee either commences with the death of the donor or is in suspense until the death." It resembles in some respects a proper donatio or gift: in others, it resembles a legacy. It was necessary that the donatio should be accepted by the donee, and consequently there must be traditio or delivery, or a proffer or offer, which is assented to. Yet the donatio might be maintained as a fideicommissum p435in the absence of these conditions. No person could make a donatio mortis causa, who could not make a testament. The death of the donee before the death of the donor was ipso jure a revocation of the donatio. It would appear as if the law about such donations was not free from difficulty. They were finally assimilated to legacies by Justinian, though this had been done in some particulars before his time. Still they differed in some respects from legacies; for instance, such a donation could take effect though there was no person to take the hereditas. A filius familias might with his father's consent make a donatio mortis causa of his Peculium Profectitium.

The English law of donationes mortis causa is first stated by Bracton (II c26) in the very words of the Digest (39 tit. 6 s2, &c.); and the present law is expounded by Lord Hardwicke (Ward v. Turner, 2 Vez. 431); but what he there states to be the English law is not exactly the law as stated in Bracton. The rules of donationes mortis causa in English law are now pretty well fixed by various recent decisions. Tradition or delivery is considered one essential of such a gift, and the death of the donor in the life of the donee is another essential. The gift is not an absolute gift, but a gift made in contemplation of death, and it is revocable. (Dig. 39 tit. 6; Cod. 8 tit. 57; Inst. 2 tit. 7; Savigny, System, &c. IV.276; Zeitschrift für Gesch. Rechtswissenschaft, XII p400, Ueber L. Seia, 42 pr.; De mor. ca. don.; Thibaut, System, &c. § 495, &c. 9th ed.)


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