Corpus iurisprudentiae Romanae

1 Ulpianus, On Sabinus, Book XXXII. In accordance with the custom adopted by us, gifts between husband and wife are not valid. This rule has been adopted to prevent married persons from despoiling themselves through mutual affection, by setting no limits to their generosity, but being too profuse toward one another through the facility afforded them to do so.

2 Paulus, On Sabinus, Book VII. Another reason is that married persons might otherwise not have so great a desire to educate their children. Sextus Cæcilius also added still another, namely, because marriage would often be dissolved where the husband had property and could give it, but did not do so; and therefore the result would be that marriage would become purchasable.

3 Ulpianus, On Sabinus, Book XXXII. This reason is also derived from a Rescript of the Emperor Antoninus, for it says: “Our ancestors forbade donations between husband and wife, being of the opinion that true affection was based upon their mutual inclination, and also taking into consideration the reputation of the parties who were united in matrimony, lest their agreement might seem to be brought about for a price, and to prevent the better one of the two from becoming poor, and the worse one from becoming more wealthy.” 1Let us see between what persons donations are prohibited; and, indeed, if a marriage is solemnized in accordance with our customs and laws such a donation will not be valid. It will be valid, however, if any impediment should arise so that marriage cannot be contracted. Therefore, if the daughter of a Senator marries a freedman in violation of the Decree of the Senate, or if a woman in a province, in opposition to the Imperial Decree, marries an official who is discharging his duties there, the donation will be valid, because such a marriage is void. But it is not right that donations of this kind should be valid, nor that the condition of those who are guilty of an offence should be improved; still, the Divine Severus, in the case of the freedwoman of Pontius Paulinus, a Senator, rendered a different decision because the woman had not been treated with the affection to which a wife was entitled, but rather with that due to a concubine. 2Those who are under the control of the same person are forbidden to make gifts to one another; as, for instance, the brother of a husband who is under the control of the father-in-law of the wife. 3We apply the term “control” not only to children but also to slaves, for it is the better opinion that those who are subject to the husband by any law cannot make such donations. 4Hence, if a mother makes a gift to her son who is under the control of his father, the gift will be of no effect because he acquires it for his father. If, however, she gives it to him while he is a soldier and is about to leave for the camp, it is held that the gift will be valid, because it is acquired by the son, and forms part of his castrense peculium. Wherefore, if a son or stepson, or any other person subject to the authority of the husband, makes a gift out of his castrense peculium it will not be void. 5Therefore a person who is under the control of the father-in-law is prohibited from making presents to the wife and the daughter-in-law, provided the husband is under the control of the father. 6The wife and daughter-in-law, on their part, are forbidden to make gifts to a husband or a son-in-law. Moreover, a gift will not be valid where it is given to those under their control or under the control of the parties to whose authority they are subject; provided the husband and father-in-law are under the control of the same person, or the husband is under the control of the father-in-law. Moreover, where the husband belongs to another family, neither the father-in-law nor anyone under his control, nor anyone subject to the authority of the latter, is forbidden to receive a gift from the wife. 7A mother-in-law is not prohibited from bestowing gifts upon her daughter-in-law, or vice versa, because in this instance the right of paternal authority is not involved. 8If my slave, in whom another enjoys the usufruct, gives a present to my wife out of his peculium which does not belong to me, or a freeman who is serving me in good faith as a slave does this; the question arises, will such a donation be valid? In the case of a free person, indeed, a donation can be permitted to a certain extent, but others have no right to alienate their peculium by giving it away. 9Not only are husband and wife themselves not permitted to make donations, but other persons cannot do so. 10Moreover, it should be remembered that gifts between husband and wife are forbidden to such an extent that they are void by operation of law. Hence, if a certain article is to be given, its delivery will not be valid, and if a promise is made to a party making a stipulation, or if he is released from liability for a debt, the transaction will not be valid; for, by operation of law, any transaction entered into by husband and wife with reference to a donation will be of no effect. 11Therefore, if a husband gives money to his wife, it will not become her property, because it is evident that she cannot acquire the ownership of the same. 12If, however, a husband should order his debtor to pay the obligation to his wife, in this instance, the question arises whether the money becomes hers, and whether the debtor will be released. Celsus states in the Thirteenth Book of the Digest that it would seem that it cannot be held that the debtor is released, and that the money becomes the property of the husband and not of the wife. For if the donation is not prohibited by the Civil Law, the result of the transaction will be that the money would come into your hands from your debtor, and then pass from you to your wife; since through the rapidity with which the two acts are united, one of them is obscured. It does not appear, however, to be either novel or strange for a debtor to pay a creditor and the creditor to pay his wife, because it is understood that you yourself receive what you obtain at the hands of another. For in case anyone who pretends to be the agent of your creditor receives money from your debtor under your direction, it is settled that you will be entitled to an action for theft, and that the money itself is yours. 13This opinion confirms what Julianus stated in the Seventeenth Book of the Digest, namely: that if I should direct someone who is about to make me a present to give to my wife, the transaction will be of no effect, for it would be considered just as if I had received it myself, and, having become my property, I gave it to my wife. This opinion is correct.

4 Julianus, Digest, Book XVII. The same rule applies if I should direct a person who is about to make a donation mortis causa, to me, to make it to my wife; nor does it make any difference whether the donor recovers, or dies. Nor should it be held that, if we say that this donation is valid, I would become any the poorer, because if the donor recovers, I will be liable to a personal action; but if he dies, I will cease to have the property which otherwise would have been included among my possessions, because of my having donated it.

5 Ulpianus, On Sabinus, Book II. Where a man who desires to make a gift to his betrothed gives it to Titius, in order that he may bestow it upon the woman, and Titius delivers it after the marriage has taken place; if the husband employed him as an intermediary, the donation made after the marriage took place will not be valid. When, however, the woman employed him, and the donation has already been made for some time, that is before marriage, therefore, although Titius delivered it after the marriage was celebrated, the donation will be valid. 1Where a husband had two debtors, Titius and his wife, and he releases the wife from liability by way of a gift, neither party will be released because the discharge of the woman is void. This Julianus also states in the Seventeenth Book of the Digest. It is evident that if you suppose that Titius is discharged, he will indeed be released from liability, but the woman will still be liable. 2Generally speaking, it must be held that any transaction involving a gift which has reference to married persons themselves, or to others that are interposed, will not be valid. If the affair is mixed, and concerns other property and persons in such a way that the components cannot be separated, the donation will not be prevented; but if they can be separated, the other parts of the transaction will be valid, but the donation will not be. 3Where a debtor of the husband, by the direction of the latter, promises his wife the money which he owes, the promise is void. 4Where a wife, for the purpose of making a donation to her husband, promises to pay his creditor and gives a surety; Julianus says that the husband will not be released, or the wife or her surety be liable, and the result will be just as if she had not made any promise. 5Julianus also says with reference to sales, that where one is made of property for a price less than its value, by either husband or wife, it will be of no effect. Neratius, however (whose opinion Pomponius does not reject), says that where a sale is made between husband and wife as a donation, it is of no effect; provided that the husband did not have the intention of selling the property, but merely pretended to do so, in order that he might donate it. For, in fact, if he had the intention of selling it and remitted a portion of the price to the woman, the sale would be valid, but the remission of the price will be void to the extent of the profit which accrues to the woman. Hence, if property which is worth fifteen aurei is sold for five, and its value is only ten, the woman must refund only five aurei, because she is considered to have profited by that amount. 6Where a wife, or a husband, fails to make use of a servitude by way of a donation, I think that the servitude is lost; but, after a divorce, it can be recovered by an action. 7Where a wife, or a husband, consents to be barred by an exception for the purpose of making a donation, a decision rendered by a judge granting a release will be valid; but an action can be brought against the party who has obtained the advantage. 8A donation of a burial-place is permitted, for it is settled that a husband can give a burial-place to his wife, and, on the other hand, that she can give one to him. If the party who receives it buries anyone there, the place will become religious. This arises from the fact that it is usually stated that a donation only is forbidden which has a tendency to make the giver poorer, and the receiver richer. Hence, in this instance, a party is not held to become more wealthy by the acquisition of property dedicated to religious purposes. Nor should the statement have any weight that the woman would have purchased another burial-place, if she had not received this one from her husband; for although she would have become poorer if her husband had not given it to her, still, she does not become more wealthy, for the reason that she is at no expense. 9This also affords ground for the opinion that if a husband should donate land for a burial-place to his wife, it is understood that it only becomes hers when a dead body is buried therein. For, before the place becomes religious, it remains the property of the donor, and therefore if the woman should sell it, it will, nevertheless, continue to remain his property. 10According to this, if a husband should give his wife a monument of great value, which had not been used, the donation will be valid, but it would only be valid when it became religious. 11Even if the woman herself should be buried there, although the marriage was terminated by her death, still, the place would become religious through favorable interpretation. 12Hence, if a husband should give his wife something as an offering to God, or land upon which she has promised to erect some public work, or to build a public temple, the place will become sacred. If, however, he should give her anything to be donated or consecrated to God, there is no doubt that the gift will be valid. Wherefore, if he furnished her with oil to be used in a temple, the donation will be valid. 13Where a husband is appointed an heir, and rejects the estate for the purpose of making a donation to his wife; Julianus says in the Seventeenth Book of the Digest that the donation is valid. For he does not become any the poorer by not acquiring the property, for he only does so who loses his own patrimony. The rejection of the estate by the husband benefits the wife if she should be substituted, or should become heir ab intestato. 14In like manner, if a husband rejects a legacy, we hold that the donation is valid if the woman is substituted with reference to the legacy, or even if you suppose that she was appointed the heir. 15Where anyone is asked to deliver an estate to his wife after reserving a certain amount of it for himself, and he delivers it without any deduction, Celsus says in the Tenth Book of the Digest that the husband is considered rather to have acted with a more conscientious sense of his duty in the delivery of the property than to have donated the same. Celsus gives a very just reason for this opinion, for a great many persons, in a case of this kind, rather consider that they are discharging their duty than that they are donating anything, and that where they make a more ample delivery of property belonging to another, than they are required to do, they are complying with the wishes of the deceased, and are not paying out anything of their own; and it is not without reason that we often think that the deceased desired something to be done which he did not request. This opinion is more applicable to a case where a man was asked to deliver an estate, and did not reserve the fourth to which he was entitled, but still discharged his trust, after neglecting to take advantage of what was granted by the Decree of the Senate. For he, indeed, discharged his trust having carried out the wishes of the testator. This is the case where he did not make an error in the calculation, but there is no doubt that he would be entitled to an action for the recovery of money which was not due, and which he had paid in the execution of the trust. 16Therefore, when nothing is paid out of the property, it is rightly held that a donation between husband and wife will be valid; for it is valid where the party who makes the donation does not diminish his or her means; and the donation will still be valid even if the property should be diminished, provided the one who receives it does not become more wealthy thereby. 17Marcellus asks in the Seventh Book of the Digest whether the donation will be valid where a woman received money from her husband and expended it in behalf of one of her relatives who held the rank of centurion. He says that it will be valid, for the woman did not become more wealthy by the transaction, any more than if she had borrowed the money in order to pay it in behalf of her relative. 18Moreover, with reference to donations forbidden by the Civil Law, the gift may be revoked in such a way that, if the property is still in existence, it can be recovered from him or her to whom it was given. But if it has been consumed, a personal action will lie to recover the amount to which either of the parties has been enriched.

6 Gaius, On the Provincial Edict, Book XI. Whatever is retained by reason of a donation which is not permitted by law, is understood to be retained without any reason, or unjustly; in either of which instances a right of action for recovery will ordinarily arise.

7 Ulpianus, On Sabinus, Book XXXI. Moreover, what time should be considered in order to determine whether the parties have profited pecuniarily: should it be the date when issue was joined, or that when judgment was rendered? The time when issue was joined should be taken into consideration, and this our Emperor and his father stated in a Rescript. 1Where a husband gives his wife money for the purchase of perfumes, and she pays it to his creditor, and afterwards purchases perfumes with her own money; Marcellus says in the Seventh Book of the Digest that she will not be held to have profited by the transaction. He also says that if he should give her a dish for the same purpose, and she should keep it, and purchase perfumes with her own money; the husband would not be entitled to an action to recover the dish, because the wife has not become any the more wealthy, as she spent an equal sum for something which was perishable. 2Where a man and his wife give one another the sum of five aurei and the husband keeps his, and the wife spends hers, it was very properly decided that there was a set-off of the two gifts; and this the Divine Hadrian decreed. 3Marcellus also says that if a man should give money to his wife, and she should purchase land with it, an estimate should be made as to how much the woman had profited by the transaction. Hence, if the land was of very little value at present, we must hold, in consequence, that its value at the time issue was joined should be taken into consideration. It is evident that if the land is of great value, only the amount which was paid must be refunded, and not the interest of the price. 4A nice question arises where a woman purchases land for fifteen aurei, and her husband does not pay the entire price but only two-thirds of the same, that is to say, ten aurei; and his wife pays five out of her own money; and at the present time the said land is only worth ten aurei, how much will the husband be entitled to recover? The better opinion is that he should recover two-thirds of ten, and that what is lost of the price should be equally borne by the husband and wife. 5Where a husband alleges that he has increased the value of property which he received as dowry, for the purpose of benefiting his wife, our Emperor and his father stated a remedy for this in a Rescript as follows: “As you say that the price of the property was increased for the purpose of benefiting your wife, the magistrate who has jurisdiction of the matter shall decide that if you refuse a certain proportion of the money, you must return the land itself, after having deducted the reasonable expenses which you have incurred.” It is therefore left to the choice of the husband to deliver whichever he prefers. The same rule of law applies if, on the other hand, the woman makes complaint of a diminution in the value of the property. The principle is the same as that ordinarily followed where property is lent for use after appraisement; as Pomponius states in the Fourth Book of Various Extracts. 6Where a wife purchases from her husband lands which she had received as security for the return of her dowry, and the said purchase is said to have been made for the purpose of benefiting her, the transaction will be void. But our Emperor and his father stated in a Rescript that the obligation of pledge will continue to exist. I give the words of this Rescript in order that it may be established that a bona fide sale made between husband and wife cannot be annulled. “If your husband sold you pledges given to secure your dowry and money which had been loaned him, not for the purpose of benefiting you, and the transaction was concluded in good faith, it will be valid. But if it is shown that this was only done under pretext of making a donation, and consequently the sale will be held to be void, your right to the property pledged will remain unimpaired by public law.” 7If a wife buys an article, and her husband pays the purchase money for it, it is sometimes held that the entire property can be recovered from the woman as she has become pecuniarily benefited with reference to the whole of it; just as where a woman purchases property and owes the price of the same, and her husband releases her from the claim of the vendor. For what difference does it make whether he pays her creditor or the vendor? 8A certain man gave a slave to his wife under the condition that she would manumit him within a year. If the woman should not comply with the wish of her husband, does not the Constitution of the Divine Marcus confer freedom upon the slave, whether the husband is still living, or whether he is dead? Papinianus says, as the opinion of Sabinus has been accepted, who thinks that the slave only begins to become the property of the party to whom he was given at the moment when freedom was granted him, that therefore the woman cannot manumit him after the specified time has elapsed, even if she should desire to do so; that the Imperial Constitution is not applicable, nor can the will of the husband render it applicable, since he could manumit his own slave. I also approve this opinion, because neither the vendor nor the donor desires to, or can impose any condition upon himself, but he can do so upon the party who receives the slave. Therefore the ownership remains with him, and the Constitution is not operative. 9A donation made for the purpose of manumission is valid; although this may be done, not with the understanding that freedom shall be granted immediately but within a certain time. Hence, if a husband gives his wife a slave to be manumitted after a specified period, the slave does not become hers until she begins to manumit him, after the expiration of the said period. Wherefore, if he should be manumitted before that time her act will not be valid, for it must be remembered that if anyone gives his wife a slave to be manumitted within a year, and she does not manumit him within the year, but does so afterwards, her act will be void.

8 Gaius, On the Provincial Edict, Book XI. If, before the slave is manumitted, the marriage should be dissolved by death or divorce, the donation will be annulled; for it is held to be a condition of such a donation that the slave should be manumitted during the marriage.

9 Ulpianus, On Sabinus, Book XXXII. If a husband gives his wife a slave under the condition that he shall never be granted his freedom, it must be held that a donation of this kind is absolutely void. 1Where a woman, having received money from a slave, manumits him or imposes certain services upon him as a condition of his freedom, Julianus says that these services are legally imposed, that the obligation will stand, and that the woman is not held to have profited by the property of the husband, since the slave promises his services as freedman. Where, however, the woman receives the money of the slave for his manumission, and manumits him on this account; if he paid the money out of his peculium, it will still remain the property of the husband, but if anyone else paid it for the slave it will become the property of the woman. This opinion is founded upon justice. 2Donations mortis causa can take place between husband and wife,

10 Gaius, On the Provincial Edict, Book XI. For the reason that the event of the donation extends to a time when the parties cease to be husband and wife.

11 Ulpianus, On Sabinus, Book XXXIII. In the meantime, however, the property does not immediately pass to the person to whom it is given, but only when death takes place, and therefore, during the intermediate time, it remains in the hands of the donor. 1What is said with reference to the validity of donations mortis causa between husband and wife is so true that, according to Julianus, not only a donation made with the intention that the property shall belong to the wife or husband will be valid when death takes place, but also every donation mortis causa will confer ownership of the object of the same upon him or her. 2Therefore, when a donation is not retroactive difficulties arise, as Marcellus states in the following instance: “A husband wished to make a certain donation mortis causa to his wife, and the latter interposed a son under paternal control who was to receive the donation and give it to her; then, after the husband died, he who received the gift became his own master. Is the delivery valid?” He says that the delivery must be held to be valid, because the son became his own master at the time to which the delivery was deferred, that is to say, when the husband died. 3He also says that he knew that it was the opinion of Sabinus, that where a husband delivered property to his wife mortis causa while she was under paternal control, the donation with all its advantages would belong to her if she should become independent during the lifetime of her husband. This opinion is also approved by Julianus in the Seventeenth Book of the Digest. 4Hence, if a wife should give property mortis causa to her husband while he was under paternal control, and he should become his own master, we say, without hesitation, that the property will be his. 5Moreover, on the other hand, if a wife should make a donation mortis causa to her husband while he is the head of the household and, at the time of her death, he should be subject to paternal control, the entire benefit of the donation will be acquired by the father. 6Consequently Scævola states in a note on Marcellus that if a woman interposes a slave for the purpose of delivering to her a donation mortis causa, and he delivers the property to the woman, and he should afterwards be free at the time of the death of the husband, the same rule must be held to apply. 7Marcellus also holds that if he who was interposed should die after he has given the property to the woman, while the donor is still living, the donation will be extinguished, because it should for some space of time become the property of the person interposed, and from him pass to the woman. This occurs where the woman to whom the property is given, and not the donor, causes the interposition of the third party. For if he was interposed by the husband, the title to the property immediately vests in him, and if he should deliver it before the death of the husband and then die, the delivery would be effective to a certain extent, but it would still be in suspense until the death of the donor took place. 8If a wife gives property to Titius in order that he may deliver it to her husband mortis causa, and, after her death, Titius should deliver the property to the husband against the consent of the heirs, it makes a difference whether Titius was interposed by the woman, or by the husband to whom the property was donated. If he was interposed by the wife, he will be liable to a personal action for recovery, if he delivered the property to the husband; but if he was interposed by the husband at the death of the wife, ownership of the land immediately vests in him whom the husband interposed, and the latter will be entitled to a right of action against him. 9If a wife gives property which she has received from her husband mortis causa to anyone else, such a gift will be void, because the title does not vest in the woman until the last moment of the life of her husband. It is clear that in those cases in which it is agreed that the donation shall be retroactive, a delivery made by the wife will be in abeyance. 10If a husband makes a gift to his wife, and she is afterwards divorced, will the donation be annulled? Julianus says that the donation will be void, and is not dependent upon any condition. 11He also says that a donation made on account of a divorce is valid:

12 Paulus, On Sabinus, Book VII. Provided, however, that the donation was made at the very time of the divorce, and not after deliberation, while the parties were contemplating a divorce.

13 Ulpianus, On Sabinus, Book XXXII. If, however, death did not result, the property would not be held to belong to the woman, because the donation had been made with reference to another event. 1Hence, if a husband makes a donation mortis causa to his wife, and suffers banishment; let us consider whether the donation will be valid. It is held that a donation made to become operative in the case of banishment is valid, just as in the case of divorce. Therefore, as marriage is not dissolved by banishment, and the woman is in no way to blame, it is only in accordance with humanity that a donation mortis causa made in the first place to be confirmed by an exile of this kind should be valid, just as it would be if the husband should die. This is true, however, only to the extent that the husband may not be deprived of the right to revoke it, because it is necessary to wait for his death in order for the donation to have complete effect; whether he revoked it at the time of his death, or whether he still remains subject to the penalty. 2Where anyone receives property for the purpose of building on his own ground, it cannot be recovered from him, because it is considered to have been a gift. This was also the opinion of Neratius, who says: “When property has been given for the purpose of building a house or for sowing land, anything else that he who receives it fails to do will come within the scope of the donation.” Therefore gifts of this kind will be forbidden between husband and wife.

14 Paulus, On the Edict, Book LXXI. Where a husband gives money to his wife for the rebuilding of a house belonging to her, which has been destroyed by fire, the donation is only valid to the amount required for the construction of the house.

15 Ulpianus, On Sabinus, Book XXXI. What a husband gives to his wife, by the year or by the month, can be revoked to the extent of the surplus, if it exceeds the bounds of moderation, that is to say, if it amounts to more than the income of the dowry. 1If a husband should give money to his wife and she collects the interest from it, she will profit by it. Julianus in the Eighteenth Book of the Digest stated this opinion with reference to a husband.

16 Tryphoninus, Disputations, Book X. But what if out of a sum of a hundred aurei, which a husband presented to his wife, fifty should be lost through a debtor, and the wife should have the other fifty doubled by the interest? The husband cannot recover more than fifty from her on account of the said donation.

17 Ulpianus, On Sabinus, Book XXXII. Let us also consider with reference to the crops of land which are donated, where the woman profits pecuniarily, whether they form part of the donation. Julianus says that the crops, as well as the interest, constitute a lawful gift. 1Where a slave who is donated acquires any property, it will belong to him who donated him.

18 Pomponius, On Various Extracts, Book IV. Where either a husband or a wife uses the slaves or the clothing belonging to the other, or lives gratuitously in the house of the other, such a donation is valid.

19 Ulpianus, On Sabinus, Book XXXII. Where a wife gives a slave to her son who was under the paternal control of her husband, and the said slave then acquired a female slave, the title to the latter will vest to the woman. Julianus says that it makes no difference with whose money the said female slave was purchased, because nothing can be acquired, even with his own property, through the slave by the donee, for this privilege is granted only to bona fide possessors. Where, however, he knows that the slave belongs to another, he is not his bona fide possessor. 1He also asks, where the female slave was purchased with the property of the husband, whether the latter can, by means of an exception, retain the price of said slave against his wife when bringing an action for her dowry. It must be said that, according to the opinion of Marcellus, the husband is entitled to an exception where he is sued for the dowry, and, according to Julianus, if he should pay it, he can bring suit for the recovery of the purchase-money.

20 Javolenus, Epistles, Book XI. If a slave, who is given mortis causa to a wife before her husband dies, should enter into some stipulation, I think that the effect of the obligation would remain in abeyance until the husband is either dead, or is free from the danger of death on account of which he made the donation, and if either of these events takes place by which the donation is annulled or confirmed, this also will either confirm or annul the stipulation.

21 Ulpianus, On Sabinus, Book XXXII. Where a husband pays for his wife a sum which she owes on account of a journey taken by her, has he a right to collect the amount on the ground that she was pecuniarily benefited thereby; or can it be held that this is not a donation? I think that the better opinion is that this is not prohibited, especially if she took the journey for the sake of her husband; for Papinianus states in the Fourth Book of Opinions that a husband cannot recover the travelling expenses of his wife and her slaves where the journey was undertaken in his behalf. A journey is held to have been made in behalf of a husband, when his wife comes to seek him; and it makes no difference whether anything had been agreed upon in the marriage contract with reference to travelling expenses or not, for he does not make a donation who meets necessary expenses. Hence, if the wife made the journey with the consent of her husband, on account of the requirements of his business, and the husband gives her something for expenses, it cannot be recovered. 1Where a wife promises a dowry to her husband, as well as the interest on the same, it must undoubtedly be held that he can collect the interest; because this is not a donation, as the interest is demanded to meet the expenses of marriage. What would be the case, however, if the husband should remit the claim for interest to his wife; would the same question remain with reference to the legality of the donation? Julianus says that it would, which is correct. It is evident that if it should be agreed that the wife shall support herself and her slaves, and her husband permits her to enjoy her dowry for the purpose of maintaining herself and the members of her household, the question will be disposed of; for I think that her husband could not demand of her, as a donation, what had already been set off.

22 The Same, On Sabinus, Book III. A man gave a slave mortis causa to his wife, and then appointed him his heir with the grant of his freedom. The question arises, is such an appointment valid? I think that if he appointed him his heir because he said that he changed his mind, the appointment will be valid, and the slave will become the necessary heir of his master. But if after he appointed him his heir, he gave him away, the donation will have greater weight; or if he gave him away before he did this, but still did not grant him his liberty with the intention of depriving him of it, the result will be the same.

23 The Same, On Sabinus, Book VI. Papinianus very properly thinks that the Rescript of the Divine Severus relates merely to the donation of property; hence if the husband bound himself by a stipulation for the benefit of his wife, he does not hold that the heir of the husband can be sued, even though the husband should die without having changed his mind.

24 Paulus, On Sabinus, Book VII. Where a donation is made between persons who are not married, and who are united before the time prescribed by law for acquiring the ownership of property; or, on the other hand, if a donation is made between husband and wife, and before the above-mentioned time has elapsed, the marriage is dissolved; it is settled that the time of the prescription, nevertheless, continues to run, because, in the first instance, possession is transferred without any defect, and in the second the defect which existed is removed.

25 Terentius Clemens, On the Lex Julia et Papia, Book V. Where, however, during the existence of the marriage, property belonging to someone else is given by a husband to his wife, it must be said that the wife is immediately permitted to begin to hold it by usucaption, because, although it was not given to her mortis causa, its usucaption will not be prevented. For the law, as established, has reference to those donations by which the wife is enriched, and the husband becomes poorer; and therefore a donation mortis causa may take place—just as is understood to be made between persons who are not married—with reference to property which can be acquired by usucaption, because it belongs to another.

26 Paulus, On Sabinus, Book VII. If I order someone who has sold me property to give it to my wife as a donation, and he transfers possession of the same to her under my direction, he will be released from liability; because, although under the Civil Law she will not be understood to have possession of said property, it is evident, nevertheless, that the vendor has nothing which he can deliver. 1Neratius says that the same reasons which permit donations to take place between husband and wife, also render legitimate those made between a father-in-law and a son, or a daughter-in-law. Therefore, a father-in-law can make a donation to his son-in-law in expectation of death or divorce, and a son-in-law also, can make one to his father-in-law in view of the occurrence of either of these events.

27 Modestinus, Rules, Book VII. A donation made before marriage between parties who are about to contract matrimony is valid by law, even if the marriage should take place upon the same day.

28 Paulus, On Sabinus, Book VII. Where the property donated is destroyed or consumed, the loss must be borne by the donor. This is reasonable, because the property still belongs to him who gave it, and he loses what is his own. 1Where a husband incurs any expense with reference to children born of female slaves who constitute the dowry of his wife, either on account of instruction or support; this will be of no advantage to the husband, because he himself is making use of their services. He can, however, keep an account of whatever was given to their nurse for rearing them, because he is providing something for the preservation of their lives; just as if he had ransomed slaves forming part of the dowry from robbers. 2Where slaves of the husband have performed services for the wife, or vice versa, the better opinion is that no account should be taken of what they have done; and, indeed, the law applying to prohibited donations should not, in this instance, be strictly construed, as among individuals who are hostile to one another; but this should be done as among persons united by the greatest affection, and who are merely apprehensive of want. 3When a woman purchases a slave for ten aurei, which have been given to her by her husband, and the slave is only worth five, it is held by Plautius that only five can be recovered; just as where, if the slave should die, nothing can be recovered. If, however, the slave was worth fifteen aurei, the husband cannot claim more than ten, since he has only become poorer to that amount. 4But if the woman purchased two slaves, and one of them should die, and the other is worth ten aurei, the question arises, what shall be done? Pomponius, and the greater number of authorities, think that it makes a difference whether the two slaves were sold for one price, or each for a different one. If they were sold for one price, the entire ten aurei can be recovered, just as where an article which has been bought becomes deteriorated, or where a flock or a vehicle is sold, and any portion of the same is destroyed; but if the slaves were sold for different prices, that amount can only be recovered for which the surviving slave was purchased. 5Pomponius states that Julianus was of the opinion that, where a wife acquires anything through a slave who had been purchased with money given to her by her husband, whether it be a legacy, an estate, or children born of female slaves, the husband will also have a right to recover it on this ground. 6It is settled that if a wife, before receiving her annual income from her husband, spends any of his money, or any which has been borrowed, she will be held to have taken the amount expended out of her annual income. 7Celsus says that it was very properly decided that, where a wife has stipulated for annual interest on her dowry, although the interest may not be due because the arrangement was made for yearly payments, the woman cannot bring an action on dowry, but the parties can set off their claims. Therefore, we hold that the same rule will apply to any agreement which is entered into with reference to annual payments.

29 Pomponius, On Sabinus, Book XIV. If a woman should sell a slave purchased with money given to her by her husband, and then buy another, Fulcinius held that the woman must be responsible for the loss of the last slave. This is not true, even though the second slave was not purchased with money belonging to the husband. 1Where a husband gives wool to his wife and she makes clothing for herself out of it; Labeo says that the clothing belongs to the wife.

30 Gaius, On the Provincial Edict, Book XI. Still, the husband will be entitled to an equitable action.

31 Pomponius, On Sabinus, Book XIV. Where, however, a husband makes clothing for his wife out of his own wool, although this is done for his wife and through solicitude for her, the clothing, nevertheless, will belong to the husband; nor does it make any difference whether the wife assisted in preparing the wool, and attended to the matter for her husband. 1Where a wife uses her own wool, but makes garments for herself with the aid of female slaves belonging to her husband, the garments will be hers, and she will owe her husband nothing for the labor of the slaves; but where the clothing is made for her husband, it will belong to him, if he paid his wife the value of the wool. Where, however, the wife did not make the clothing for her husband, but gave it to him, the donation will not be valid; as it will only be valid when the clothing is made for her husband, and she will never be permitted to render a bill for the labor of her husband’s female slaves. 2If a husband should give a lot to his wife in order that she may erect a house upon it, there is no doubt that the house will belong to the husband; but it is settled that the woman will be entitled to her expenses, for if the husband should claim the house, the wife can retain the expenses she incurred in building. 3Where there were two slaves, each of them worth five aurei, but both of them together were sold for five by a husband to his wife for the purpose of benefiting her, or vice versa; the better opinion is that they are held in common by the two parties in proportion to the price; for indeed it is not to be considered what the slaves are worth, but how much of the price has been remitted by way of donation. There is no doubt that either a husband or a wife can purchase property from one another for less than it is worth, if there is no intention of making a donation. 4If a husband should sell anything to his wife for its true value, or vice versa, and for the sake of making a donation, and they agree that the vendor shall not furnish any guarantee with reference to the property, it should be considered what the agreement was with reference to the sale, whether the property was actually sold and the entire transaction was a valid one, or, indeed, if only the latter part of the agreement was void; just as if it would be when the purchase had been concluded, the agreement had been made after a change of mind. The better opinion is that only the latter part of the agreement is void. 5We hold that the same rule will apply if, for the purpose of making a donation, the parties agree that the vendor shall not guarantee that a slave is in the habit of running away, or is a vagabond; that is to say, the rights of action under the Edict of the Ædiles and on purchase shall remain unimpaired. 6Where a man owes his wife a sum of money payable at a certain time, he can pay it at once without fear of it being considered a donation, although if he had retained the money until the time it was due, he could have enjoyed the advantage of its use. 7If you are about to bequeath me a legacy, or leave me a portion of your estate, and are requested to do so, you can leave it to my wife, and this will not be considered a donation, because my property is in no way diminished; and Proculus says that the principal reason why our ancestors came to the aid of the donor was in order that one of the parties might not be despoiled through affection for the other; but they were not so evil disposed as to wish to prevent one of them from becoming wealthier. 8Where a husband makes his wife a very valuable gift on the Kalends of March or on her birthday, this is a donation; but if his wife should incur any expense by which she may be more honorably maintained, the contrary opinion must be held. 9A wife is not considered to have become any more wealthy if she spends money given to her by her husband for banquets, for perfumes, or for food for her slaves. 10Provisions which a husband furnishes for the slaves or the horses of his wife, and which belong to them in common, cannot be recovered by him. I think that the contrary rule should be observed, however, where he supports the domestic slaves of his wife, or those which are kept for sale.

32 Ulpianus, On Sabinus, Book XXXIII. This was the condition of the laws with reference to donations between husband and wife, as we have previously stated, when our Emperor Antoninus, before the death of his father the Divine Severus, in an Address delivered to the Senate during the consulship of Fulvius Æmilianus and Nummius Albinus, caused the Senate to relax to some extent the strictness of their provisions. 1The Address of our Emperor with reference to the confirmation of donations not only has reference to property obtained by a husband in the name of his wife, but also to all donations made between a husband and wife; so that by operation of law, the property belongs to the party to whom it is donated, gives rise to a civil obligation, and comes within the scope of the Lex Falcidia, where this can become operative. I think that this law will apply, because what is donated is, as it were, confirmed by will. 2The Rescript says: “It is wrong for anyone who makes a donation to change his mind, but it would be hard and avaricious for the heir to take the property, when this, perhaps, would be contrary to the will of the party who donated it.” 3We should understand this to refer to the change of mind of the donor in his last moments, for if he had made a donation to his wife and then changed his mind, and afterwards changed it again, it must be said that the donation is valid, as we are considering the man’s last wishes, just as we are accustomed to do with reference to trusts, when we discuss an exception interposed on the ground of fraud, as the will of the party may be undetermined up to the last moment of his existence. 4Where, however, the donor changes his mind only once, we grant his heir the right of revocation, if it is perfectly evident that the deceased changed his mind. But if this is doubtful, the judge should rather incline to confirm the donation. 5If a husband should pledge the property he donated, we are inclined to hold that he has changed his mind, although he still retains the ownership of the property. What course, however, should be pursued if it was his intention for the donation to continue to exist? Suppose that the property remained in the possession of the woman under a precarious title, and that she was ready to satisfy the creditor? It must then be held that the donation is valid. For if the husband gave the property to her in the first place with this intention, I should say that the donation was valid, so that if the woman was prepared to satisfy the creditor, she will be entitled to an exception on the ground of bad faith; and, moreover, if she should pay the debt, she could, by means of an exception on the ground of bad faith, cause the right of action of the creditor to be assigned to her. 6Where the donor becomes the slave of a private individual, it must be said that the donation is not perfected, but is destroyed, although servitude is compared to death. Hence if the woman to whom the donation is made should be reduced to slavery, the donation will be extinguished. 7Where a husband made a donation to his wife, and, on account of remorse for some crime, committed suicide, or, even after death, his memory was rendered infamous, the donation will be revoked; though gifts which he made to others will be valid where he did not make such donations mortis causa. 8Likewise, where a husband who is in the army, makes a donation out of his castrense peculium, and afterwards is convicted of a crime; for the reason that he will be permitted to testify with reference to property of this kind even after having been convicted, provided he obtains the right to do so, the donation will be valid; for he who is permitted to give evidence can make a donation mortis causa. 9The Rescript says, “Has consumed,” and this term we must understand to mean that he who received the donation has not become any more wealthy thereby. If, however, he has been pecuniarily benefited, the advantage conferred by the Rescript will not be applicable. But if he has not become any more wealthy, and has given an amount equal to the donation to the other party, it must be said that if the one who died was enriched, the other can recover what he gave, and is not obliged to set off what he has consumed, although where a divorce takes place, a set-off of this kind can be made. 10If a divorce should take place after the donation, or if the party who made the gift should die first, the ancient law must be observed; that is to say, the donation will be valid if the husband desires the wife to have it, but if he does not, it shall be extinguished; for many married persons separate well disposed toward one another, and many others cherish anger and hatred. 11But what if a divorce takes place, and the marriage is afterwards re-established, and the mind of the donor is either changed during the divorce, or remains the same; or, when the marriage is re-established, the wish of the donor becomes as it was in the first place; will the gift remain valid if the donor should die while the marriage is still in existence? It can be maintained that it will be valid. 12If, however, a divorce should not take place, but only a slight misunderstanding should arise, it is certain that the donation will be valid if the misunderstanding is removed. 13Where a wife and her husband have lived for a long time separated, but still preserve the matrimonial bond (which we know sometimes happens with persons of consular rank), I think that donations will not be valid, since the union has always existed; for marital affection, and not coition, constitutes marriage. Where, however, the donor dies first, the donation will then be valid. 14What shall we say where both parties, the one who made the donation and the one to whom it was made, are captured by the enemy? And before I venture to discuss this question, the Address of the Emperor which decided that a donation is of no force or effect if the party to whom it is given should die, must be considered. Therefore, if both parties should die, either through shipwreck, or the fall or the burning of a house, what shall we say? Where, indeed, it can be established which one of them died first, the question is readily disposed of, but if this cannot be proved, the question becomes difficult, and I am rather of the opinion that the donation will be valid, as we gather from the words of the Address, for it says: “If the party who received the donation should die first.” But when both of them die at the same time it cannot be held that the one who received the donation was the first to depart from life. Hence, it is very properly held that, where they have made donations to one another, both of these will be valid if the parties die at the same time, because, although neither one survived the other, the Address did not contemplate the death of both together. Where, however, neither survived the other, the mutual donation will be valid, for it must be said with reference to mutual donations mortis causa that an action for recovery can be granted to neither of the parties, and therefore that the heirs of both profit by the donations. In accordance with this view, if both parties are captured by the enemy at the same time, and both die while in captivity at different times, must the date when they were taken captive be considered to enable us to hold that the donations are valid; just as if both had died at once? Or shall we say that neither donation is valid, because the marriage was terminated during the lifetime of the party in question? Or shall we ascertain which one of them died first, in order to decide that the donation with reference to him was not valid; or whether, if the other should return to his country, his will be valid? It is my opinion that where the parties do not return, the time when they were taken captive should be considered, just as if they had died then; but if one of them should return, he will be held to have survived because he did so. 15When a husband bequeaths certain property out of that which he had already donated, but fails to donate the rest, he is not held to have been unwilling that the remainder should belong to his wife; for frequently a party makes a bequest, and afterwards a donation, or some other reason may have existed for his making the bequest. 16The Address not only includes husband and wife, but also other parties who are also prohibited from making donations on account of marriage; as for instance, where a father-in-law makes a donation to his daughter-in-law, or vice versa; or a father-in-law to his son-in-law, or vice versa; or one of two fathers-in-law who have the parties united in marriage under their control makes a donation to the other; for, in accordance with the spirit of the Address, all these persons are permitted to make donations under the same circumstances. This was also held by Papinianus in the Fourth Book of Opinions, for he said: “A father-in-law made a donation to his daughter-in-law, or to his son-in-law, and afterwards, one or the other of them died during marriage. Although the defect in the donation continues to exist, still, if the father-in-law did not raise any question with reference to said donation, the terms of the Address will be held to operate against his heirs after his death, for the same reason which prohibits a donation of this kind demands that the benefit be afforded.” Therefore, in order that such a donation may be valid, Papinianus requires that the son of the party who made the donation shall die before him, and that the father-in-law shall die afterwards, without having changed his mind. 17Where a son under paternal control, who has a castrense, or a quasi castrense peculium, makes a gift to his wife, we must take into account the person of the son, and his death. 18If a daughter-in-law makes a donation to her father-in-law, we must consider her death and the continuance of her will until her last moments. Where, however, her father-in-law dies first, we hold that the donation will be extinguished. But if the husband should live, and survive his wife, must we admit that the donation will take effect? If indeed, the husband becomes the sole heir of his father-in-law, a new donation can be said to have been made for the benefit of the husband, so that where the former ends, the other begins; and where the son is not the heir of his father, the donation will be terminated for another reason. 19If the father-in-law repudiates his daughter-in-law, the donation will be void, even though the marriage, when the husband and wife agree, still continues to exist, in accordance with the Rescript of our Emperor; but the marriage will be at an end with reference to the parties among whom the donation is made. 20Hence if two fathers-in-law make donations to one another, the same rule will apply if they repudiate their son and daughter-in-law, and the donations they make to one another will be void. Where, however, a donation of this kind is made between fathers-in-law, the death of him who made it during the marriage and while the right of paternal control existed is required to render the donation valid. The same rule also applies to those who are under the control of the said parties. 21Where one father-in-law makes a donation to another, and one, or both of them emancipate the persons who are united in marriage, it must be held that this donation has no reference to those mentioned in the Address, and therefore it becomes void. 22Where a man makes a donation to his betrothed which is to take effect at the time of the marriage, although the donation is not considered to have been made between man and wife, and the words of the Address do not expressly apply to it, still, the donation must be said to come within its scope, and it is valid if the will of the party continues the same until his death. 23The donation will become operative whether the property was actually donated, or an obligation was released; as for instance, where a man releases his wife from liability for what she owes him, by way of a donation, it can be said that the release itself is not in suspense, but that its effect is. Generally speaking, all the donations which we have mentioned as being prohibited, will be valid according to the terms of the Address. 24Where a partnership is contracted between husband and wife by way of donation, it is void according to the ordinary rule of law, nor does the liberal construction of the Decree of the Senate grant such an advantage that it can be held that an action on partnership will lie; still, the property which they hold in common cannot be revoked in accordance with the terms prescribed by their agreement. Therefore, an action on partnership will not be available, because that is not a partnership which is interposed for the purpose of the advantage of only one of the parties, even where this is done by others; and for this reason it does not become operative between husband and wife. 25The same must be said where a purchase is made by way of donation, for it is void. 26It is evident that if, for the purpose of making a donation, property is sold for less than it is worth, or if the price should afterwards be remitted, we must concede that the donation is valid, in accordance with the Decree of the Senate. 27Where a man had a betrothed and afterwards married her when it was not lawful for him to do so; let us see whether donations made, so to speak, during betrothal, are valid. Julianus discusses this question with reference to a minor of twelve years of age who had been brought to the home of her so-called husband while she was still too young to be married; and he says that she is his betrothed, but she is not his wife. The better opinion, however, is the one held by Labeo, by myself, and by Papinianus in the Tenth Book of Questions, which is that if the betrothal preceded the alleged marriage it will continue to exist, although the party who married the girl may think that she is his lawful wife. Where, however, it did not precede the marriage, there can be no betrothal, as it did not take place, nor did any marriage, because it could not be celebrated. Therefore, where the betrothal came first, the donation is valid, but where it did not, it is void because the party did not make the donation, as it were, to a stranger, but to his supposed wife, and therefore the Address will not apply. 28Where, however, a Senator betroths himself to a freedwoman, or a guardian to his ward, or any other of those persons who are forbidden to contract marriage does so, and afterwards marries the girl; will a donation made, as it were, during betrothal, be valid? I think that such betrothals should be rejected, and whatever property has been donated should be seized and confiscated by the Treasury, as having been bestowed upon persons who are unworthy to hold it.

33 The Same, On Sabinus, Book XXXVI. Where a husband agrees to pay his wife a certain sum annually, she cannot bring an action on the stipulation during the marriage. But, if while the marriage is still in existence, the husband should die, I think that, because the donation has reference to an annual payment, the stipulation can be enforced under the Decree of the Senate. 1On the other hand, where a wife makes an agreement with her husband to pay him a certain sum every year, this can be refunded to her, and she can bring an action to recover what remains. I think that she can also bring a personal action for the amount to which her husband is enriched; because the annual allowance which a husband pays to his wife is not as important as that which a wife pays to her husband, for this is inconsistent, and contrary to the nature of the sex. 2If the husband stipulated with his wife for annual payments, and the woman should die during marriage, it must be said that the donation will become valid under the Address.

34 The Same, On Sabinus, Book XLIII. If the wife should either give property to her husband and he should bestow it by way of dowry on behalf of their common daughter, or if she should permit him to give it by way of dowry for their daughter, after having made a donation to her husband; it can be held, in accordance with justice, that although the donation is of no force or effect, still, the gift of the dowry becomes valid by the subsequent consent of the wife.

35 The Same, On the Edict, Book XXXIV. If the divorce did not take place in accordance with the prescribed lawful formalities, donations made after such a divorce are of no effect, since it can not be held that the marriage was dissolved.

36 Paulus, On the Edict, Book XXXVI. Where property which has been donated is still in existence, it can also be recovered by a suit; but for the reason that a donation carries with it the right of possession, if the property is not returned, an appraisement for its just value can be made, and security against eviction should be furnished to the possessor for the amount that the property is worth. This opinion was also adopted by Pedius. 1A man sent a ring which belonged to another as a gift to his betrothed, and after the marriage he gave her one of his own instead of it. Certain authorities (Nerva for instance), think that this ring became the property of the woman, because the donation which had been made is held to have been confirmed, and not a new one given. This opinion I think to be correct.

37 Julianus, Digest, Book XVII. Where a woman committed fraud to prevent the preservation of property given to her by her husband, or to avoid its production in court, he can bring an action against her for injury committed, if she did this after a divorce had taken place.

38 Alfenus, Epitomes of the Digest by Paulus, Book III. Where a slave, held in common by a husband and his brother, gave a young slave to the wife of the brother, it was held that the gift was not valid so far as the share belonging to the husband, which the slave had given, was concerned. 1The law will be the same where one of three brothers has a wife and gives her property held in common by them all, for one-third of the gift will not belong to the wife; but with reference to the other two-thirds, if the brothers knew that they were given, or, after this Was done, they confirm the act, the woman will not be obliged to make restitution.

39 Julianus, On Minicius, Book V. A husband who wished to give a sum of money to his wife, permitted her to make a stipulation with his debtor. She did so, but before having received the money, she divorced herself from her husband. I ask whether the latter can recover the entire amount, or whether an action based on the promise will be void on account of the donation. I answered that the stipulation will be of no effect. If, however, the promisor, not being aware of the facts, should pay the woman, and the money has not been expended, the debtor can recover it. But where he is ready to assign his rights of action to the husband, he will be protected by an exception on the ground of fraud, and therefore the husband can recover this money by an action in the name of the debtor. If, however, the money is not in existence, and the woman has become more wealthy on account of it, the husband can claim it; for it is understood that the woman has become more wealthy through having received property belonging to her husband, since the debtor can protect himself by an exception on the ground of fraud.

40 Ulpianus, Opinions, Book II. Where property is given to a husband by his wife for the purpose of obtaining some office, the donation will be valid to the extent that it was necessary to provide the office for her husband.

41 Licinius, Rufinus, Rules, Book VI. For the Emperor Antoninus decided that a wife could give property to her husband for the purpose of furthering his interests.

42 Gaius, On the Provincial Edict, Book XI. Another reason for a donation has been recently introduced through the indulgence of the Emperor Antoninus, which we say is done for the sake of honor; for example, where a wife makes a donation to her husband to enable him to seek admission into the Senatorial, or Equestrian Order, or for the purpose of exhibitions.

43 Paulus, Rules. A donation can be made between husband and wife in case of exile.

44 Neratius, Parchments, Book V. Where a stranger gives property belonging to a husband to the wife of the latter, both of them being ignorant of this fact, and where the husband also does not know that he has donated property belonging to himself, the woman can lawfully acquire said property by usucaption. The same rule of law will apply where anyone who is under the control of the husband, believing himself to be independent, makes a gift to his father’s wife. If, however, the husband should ascertain that the property was his before its title by usucaption vests, he can recover it, and her possession will be interrupted; even though the husband does not wish for this to be done, and the woman becomes aware that it is his; because this is an instance where the woman herself knows that the donation was made by her husband. It is more proper to hold that no impediment to the acquisition of the ownership of the property by her exists; for women are not absolutely prohibited from acquiring the property of their husbands, except where donations are made to them by the latter.

45 Ulpianus, On the Edict, Book XVII. Marcellus states in the Seventeenth Book of the Digest that the husband can even remove his property without injury to his wife, and without fear of the Decree of the Senate, where the transaction which has taken place between them is illegal.

46 The Same, On the Edict, Book LXXII. Possession of property does not necessarily imply a donation of the same between husband and wife.

47 Celsus, Digest, Book I. The question as to whether the husband, in the discharge of his duties while transacting the business of his wife, has incurred expenses with reference to her property, is one of fact, and not of law. A conjecture based on the amount and character of the expenses incurred by him will not be difficult.

48 The Same, Digest, Book IX. Whatever a husband gives to his wife still remains his property, and he can recover it, nor does it make any difference if he has been left large bequests by his wife.

49 Marcellus, Digest, Book VII. Sulpicius to Marcellus. A woman who wished that, after her husband died, her land should pass to the common son of her and her husband who was under the control of his father, transferred the land to her husband, in order that he might leave it to his son after his death. I ask whether you think that the donation is of such a character as to render the transaction void, or whether, if it is valid, the woman will have the power to revoke it, if she is unwilling to allow it to stand? The answer was, if a pretext or an excuse (so to speak), is sought for the gift, the delivery will not be valid; that is, if the wife expected that her husband would reap any advantage from it in the meantime. Otherwise, if she only made use of the services of her husband, and he gave them so that she might be able to revoke the donation; or, in order that the property with all its emoluments might pass through the father to the son, why should it not be considered valid, just as if the transaction had taken place with a stranger, that is to say, if the property had been delivered to him under the same circumstances?

50 Javolenus, Epistles, Book XIII. Where a woman buys a slave for twenty aurei, and her husband pays five to the vendor at the time of the purchase, if a divorce takes place, he can certainly recover this sum. It makes no difference whether the slave has become deteriorated in value, or even if he should be dead, the husband will still be entitled to demand the five aurei; for the question arises, as to whether the woman has become enriched by the property of her husband, at the time when the question as to the return of the dowry arose. She is, in this instance, understood to have been pecuniarily benefited by having been released by the intervention of her husband from liability for a debt, which she would still have owed, if her husband had not paid the money. Nor does it make any difference for what reason the woman owed the money, that is to say, whether it was borrowed, or whether she owed it on account of some purchase. 1Where the woman did not buy the slave, but received the money from her husband in order to buy him, then, in case the slave should die, or become depreciated in value, the loss must be borne by her husband, because, as she would not have purchased the slave if she had not received the money from her husband, he who gave it must bear the loss, provided the slave died; nor is the woman considered to have become enriched who was not released by her creditor, and is not in possession of what she purchased with her husband’s money.

51 Pomponius, On Quintus Mucius, Book V. Quintus Mucius says that when a controversy arises as to whether anything has come into the hands of a wife, it is better and more honorable to hold that the property came into her hands through her husband, or through someone who is under his control, where it is not proved from what source she obtained it. Quintus Mucius appears to have adopted this opinion, for the purpose of avoiding any disgraceful inquiry with reference to a wife.

52 Papinianus, Questions, Book X. Where a man, for the purpose of benefiting his wife, leases property to her for a very small sum, the transaction is void. Where, however, a deposit takes place between the parties at a low appraisement, for the purpose of benefiting one of them, it will be valid. These opinions are different, because the lease cannot be made without a certain rent, but a deposit can be made without any valuation of the property. 1A wife provided that the crops of a tract of land should be given to her husband by her heir, and if this should not be done, she promised a certain sum of money mortis causa. The husband, having died during the life of the wife, the stipulation was extinguished, as well as the delivery which was made mortis causa by the direction of the latter; for in an instance where a personal action for the recovery of property will lie among strangers, this will not take place among married persons.

53 The Same, Opinions, Book IV. It is settled that a father-in-law cannot make a donation to either his son-in-law or his daughter-in-law mortis causa, because if the father-in-law should die, the marriage will not be dissolved; nor does it make any difference whether the father disinherited his son or his daughter, or not. In case of divorce the rule is different for the same reason. 1A woman made use of property which had been given by way of dowry, after it had been appraised with the consent of her husband. If the said property becomes deteriorated by use, a set-off of the damage will not be permitted. Nor can the woman maintain that the property has been, as it were, left to her under the terms of the will, by which bequests were made to her by her husband; since an assumption of this kind does not seem to have given her, or deprived her of the said property.

54 The Same, Opinions, Book VIII. A husband stipulated for the interest on a promised dowry, but did not claim it. As he had maintained his wife and her slaves for the entire time of the marriage, at his own expense, and left her the dowry as a preferred legacy, as well as confirmed by the ordinary legal formalities of a trust the donations which he had given her, it was held that the interest of the dowry was not included in the legacy, but had been remitted by the terms of the donation.

55 Paulus, Questions, Book VI. A wife gave a sum of money to her husband, and the latter purchased either personal or real property with this money which had been given him, and, as he was not solvent, and the property was still in existence, I ask, if the wife should desire to revoke the donation, whether she can legally proceed by a personal action for recovery; for the husband, although he is insolvent, seems to have profited by the donation, since the property acquired with the money of his wife was still in his possession. I answered that it could not be denied that he had profited by the donation, for we do not inquire what property he may have released from liability from debt by means of it, but what property of his wife he has in his possession. For he does not differ from one to whom her property has been given, except in the mere fact that in this instance, the property still belongs to the wife, and she can recover it by means of a direct action. The condition of the husband will be worse if suit is brought against him for the sum that the property is worth, and not for the amount in excess of the gift, than if he should be sued in an action on dowry. There is nothing, however, to prevent the woman from also bringing an equitable real action for the recovery of her own property.

56 Scævola, Questions, Book III. If I wish to give my wife absolutely, something which another person desires to give her mortis causa, what I order to be given to her will be void; because if the aforesaid party should regain his health, I will be liable to a personal action for recovery, and if he should die, I will, nevertheless, become poorer, for I will not have what I ought to be entitled to.

57 Paulus, Opinions, Book VII. Where a woman received from her husband a sum of money by way of a donation, and wrote to him in the following terms: “When, at my request, my dearest lord, your indulgence granted me twenty aurei for the purpose of despatching certain business of mine; which sum was paid to me under the condition that if, through any fault or bad conduct of mine, our marriage should be dissolved during our lifetime; or if I should leave your house without your consent; or should repudiate you without any cause of complaint; or if it should be proved that a divorce was obtained on my account; I promise that, in any of these instances, I will repay and return to you without any delay, the twenty aurei, which you have this day consented to give me by way of donation.” I ask whether in case this woman should repudiate her husband, Titius, she must refund the money. Paulus was of the opinion that the money which the husband gave to the wife in accordance with the terms set forth in the stipulation can be recovered, if the condition was fulfilled, since then it is transformed from a donation into a loan. Where, however, the condition of the stipulation is not shown to have taken place, only that amount can be recovered by which the wife is proved to have been enriched by the donation which was made.

58 Scævola, Opinions, Book II. Where lands and slaves were given to Seia during concubinage, and were afterwards returned by her at the time of her marriage, and others received in their stead, what is the law? The answer was that, according to the facts stated, a business transaction seems rather to have been concluded than a donation to have been made. 1Also, when a question arises with reference to the food of slaves, the answer was that sustenance given during the time of concubinage cannot be recovered, nor even such as was furnished during the time of marriage, if the slaves were used by the wife as well as the husband. 2Where a son was accustomed to transact the affairs of his mother, and slaves and other property were purchased with her money by her consent, and he drew up the bills of sale in his own name, and died while still under the control of his father; the question arose whether his mother could institute proceedings against her husband, and if she could, what action she could make use of. The answer was that if the mother intended that her son should be liable for said money, she would be entitled to an action De peculio against the father under whose control the son was, within a year after the latter died; and if she donated the property, she could recover it to the extent that the father profited by the said donation.

59 Paulus, Opinions, Book II. Where anyone makes a donation to his wife under the condition that she shall receive what he gives her by way of dowry, and he dies, the donation will become valid.

60 Hermogenianus, Epitomes of Law, Book II. A stepfather and a stepson are not forbidden to make donations to one another on the occasion of marriage. 1Donations are permitted between husband and wife in case of divorce; for this often happens either on account of the husband entering the priesthood, or because of sterility,

61 Gaius, On the Provincial Edict, Book XI. Or where marriage cannot conveniently exist on account of old age, illness, or military service,

62 Hermogenianus, Epitomes of Law, Book II. And for these reasons the marriage is dissolved with a friendly disposition. 1A donation made between husband and wife, or between patron and freedwoman, is not confirmed where a divorce takes place or marriage is not solemnized. If a donation has been made, and a divorce has taken place between the parties, it is not shared between them, where the woman is not permitted to obtain a divorce from her husband against his consent. Hence the donation is considered as if it had not been given, where a divorce occurs under such circumstances.

63 Paulus, On Neratius, Book III. Where materials belonging to a wife are joined to a building of her husband in such a way that if removed they can be of any use, it must be held that the woman can bring an action, for the reason that none is authorized by the Law of the Twelve Tables, although it is not probable that the Decemvirs did not have in mind parties by whose consent their property was joined to the buildings of others. Paulus remarks that, in this instance, proceedings can only be instituted in such a way that a suit for the recovery alone of the property when removed from the building will lie in favor of the wife, and not one for double damages in accordance with the Law of the Twelve Tables; for whatever is included in the building with the knowledge of the owner of the same is not stolen.

64 Javolenus, On the Last Works of Labeo, Book VI. A man gave something to his wife after a divorce had taken place, to induce her to return to him; and the woman, having returned, afterwards obtained a divorce. Labeo and Trebatius gave it as their opinion in a case which arose between Terentia and Mæcenas, that if the divorce was genuine, the donation would be valid, but if it was simulated, it would be void. However, what Proculus and Cæcilius hold is true, namely, that a divorce is genuine, and a donation made on account of it is valid, where another marriage follows, or the woman remains for so long a time unmarried that there is no doubt of a dissolution of the marriage, otherwise the donation will be of no force or effect.

65 Labeo, Epitomes of Last Works, by Javolenus, Book VI. Where a man makes a donation to a woman who is not yet marriageable, I think that it will be valid.

66 Scævola, Digest, Book IX. Seia, when about to marry Sempronius on a certain day, before she was conducted to his house, and before the marriage contract was signed, gave him a certain number of aurei. I ask whether this donation is valid. I answered that strict attention should not be paid to the time, that is, whether the donation was made before she was conducted to his house, or before the marriage contract was signed, as very frequently this is done after the marriage has been celebrated; for unless the donation was made before the marriage was contracted, which is understood to have been done by the consent of the parties, it will not be valid. 1A girl was conducted to the country-seat of her intended husband three days before the ceremony took place, remaining in a separate room from that of her husband, and upon the day of the marriage before she passed under his control, and before she was received under the rite of water and fire, that is to say, before the nuptials were celebrated, he offered her ten aurei as a gift. The question arose that if a divorce took place after the marriage was solemnized, whether the sum donated could be recovered. The answer was that what had been donated as a gift before marriage could not be deducted from the dowry.

67 Labeo, Epitomes of Probabilities, by Paulus, Book II. If a wife should purchase a slave with money given to her by her husband, or by someone who is under his control, and after the slave becomes her property, she should deliver him to her husband as a donation, the delivery will be valid, even though this is done with the same intention with which other donations are made, and no action for recovery can be granted her on this account.