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p435 Donationes inter Virum et Uxorem

Article by George Long, M.A., Fellow of Trinity College
on p435 of

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

DONATIONES INTER VIRUM ET UXOREM. During marriage neither husband nor wife could, as a general rule, make a gift of anything to one another. The reason for this rule was said to be the preservation of the marriage relation in its purity, as an agreement subsisting by affection, and not maintained by purchase or by gift from one party to the other. Donationes of this kind were, however, valid when there were certain considerations, as mortis causa, divortii causa, servi manumittendi gratia. By certain imperial constitutions, a woman could make gifts to her husband in order to qualify him for certain honours. This was a gift "ad processus viri" (Dig. 24 tit. 1 s41; Juv. Sat. I.39; and the note of Heinrich). The wife had the means of doing this, because when there was no conventio in manum (Gaius, II.98), a wife retained all her rights of property which she did not surrender on her marriage [Dos], and she might during the marriage hold property quite distinct from her husband. It was a consequence of this rule as to gifts between husband and wife, that every legal form by which the gift was affected to be transferred, as mancipatio, cessio, and traditio, conveyed no ownership; stipulationes were not binding, and acceptilationes were no release. A difficulty might remain as to usucapion; but the law provided for this also. If a woman received from a third person the property of her husband, and neither the third person nor she nor her husband knew that it was her husband's property, she might acquire the ownership by usucapion. If both the giver and the husband knew at the time of the gift that it was the husband's property, and the wife did not know, it might also become her property by usucapion; but not if she knew, for in that case the bona fides which was essential to the commencement of possession was wanting. If, before the ownership was acquired by usucapion, the husband and wife discovered that it was the husband's, though the husband did not choose to claim it, there was no usucapion; for this would have been a mere evasion of the law. If, before the ownership was acquired by usucapion, the wife alone discovered that it was the husband's property, this would not destroy her right to acquire the property by usucapion. This, at least, is Savigny's ingenious explanation of the passage in Digest 24 tit. 1 s44. The strictness of the law as to these donations was relaxed in the time of Septimius Severus, and they were made valid if the donor died first, and did not revoke his gift before death. There were also some exceptions as to the general rule. (Dig. 24 tit. 1; Cod. 5 tit. 16; Savigny, Zeitschrift, &c. I. p270; Mackeldey, Lehrbuch, &c. § 531, 12th ed.)


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