The Ancient Library

Scanned text contains errors.

On this page: Donatio Mortis Causa



iv. 92.


as magnificent as in Greece ; and it was more fre­quent among the Romans to show their gratitude towards a god, by building him a temple, by public prayers and thanksgivings (sypplicatio), or by celebrating festive games in honour of him, than to adorn his sanctuary with beautiful and costly works of art. Hence the word donaria was used by the Romans to designate a temple or an altar, as well as statues and other things dedicated in a temple. (Virg. Georc/. iii. 533 ; Ovid, Fast. iii. 335.) The occasions on which the Romans made donaria to their gods, are, on the whole, the same as those we have described among the Greeks, as will be seen from a comparison of the following passages: — Liv. x. 36, xxix. 36, xxxii. 30, xl. 40, 37 ; Plin H. N. vii. 48 ; Suet. Claud. 25 ; Tacit. Ann. iii. 71 ; Plant. Ampliitr. iii. 2. 65^ Curcul. i. 1. 61, ii. 2. 10 ; Aurel. Vict. Caes. 35 ; Gellius, ii. 10 ; Lucan. ix. 515 ; Cic. De Nat, Deor. iii. 37 ; Tibull. ii. 5.29 ; Horat. Epist. 1. 1. 4 ; Stat. Silv.

[L. S.J

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. (Big. 24. tit. 1. •s. 5. § 8, 16 ; 39. tit.-5. s. 19. § 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 ; jet 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 ithan 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 immediaiely 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. Jn 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. s. 25, 29 ; 35. § 5 ; List. 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 eould sue him to whom the thing was given. (Cod. 8. tit. 55. s. 3.) :.-


It \vas 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 then a gift was not perfected at once by de­ livery, 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 b}r virtue of the simple agreement. (Cod. 8. tit. 54, De Donationifeus, s. 35. § 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. s. 49) : 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 im­ pugn the validity of a donatio inofficiosa by a que-rela 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. s. 10.) 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, Sys- tern*, &c., vol. iv. § 142, &c., Schenkung.; Maekel- dey, Lehrbuch, &c., § 421., &c., 12th ed. ; Ortolan, Explication Historique des Instituts^ vol. i. p. 4 7'2, ,5th ed.) [;G. L.]

DONATIO MORTIS CAUSA. There were, according to Julianus (Dig. 39. tit. 6. s. 2), three kinds of donatio mortis causa : — >1. When a man under no apprehension of present danger, 'but moved solely l>y a consideration of mortality, makes a gift to another. 2. W.hen 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. s. 1 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 fideicom-

About | First | English Index | Classified Index | Latin Index | Greek Index



page #  
Search this site
All non-public domain material, including introductions, markup, and OCR © 2005 Tim Spalding.
Ancient Library was developed and hosted by Tim Spalding of