Corpus iurisprudentiae Romanae

1 Julianus, Digest, Book XVII. There are several kinds of donations. A person makes a donation with the understanding that the property will at once belong to the person who receives it, and will, under no circumstances, revert to himself, and he does this for no other reason than to display his liberality and munificence. This is what is properly called a donation. Another gives something with the understanding that it will only become the property of the person who receives it, if something else takes place. This is not properly styled a donation, for it is a conditional gift. Likewise, when anyone gives something with the intention that it will immediately become the property of the person who receives it, but if something either happens, or does not happen, he wishes it to be returned to him; this is not properly called a donation, but it is merely a gift, which is dependent upon a condition; as, for instance, a donation mortis causa. 1Therefore, when we may say that a donation between betrothed persons is valid, we use the term in its correct sense, and we understand by it anything given by a person who bestows it for the sake of liberality in order that it may immediately become the property of the one who receives it, and that, under no circumstances, he desires it to be returned to him. And when we say that a man gives a donation to his betrothed with the understanding that, if the marriage should not take place, the gift may be returned, we do not contradict what was previously stated, but we mean that a donation can be made between such persons, and may become void under a certain condition.

2 The Same, Digest, Book LX. When a son under paternal control desires to make a donation of money, he promises it by the order of his father, and the donation will be just as valid as if he had furnished a surety. 1If, however, the father, being about to donate the money to Titius, should order his son to promise it to him, it may be said that there is a difference if the son is indebted to his father, and if he is not. For where he owes his father a sum equal to what he promises, the donation is considered valid, just as if the father had ordered any other debtor to promise the money. 2If, however, I am about to donate money to Titius, and I order you who intend to give me an equal sum, to promise it to Titius, the donation is complete, as far as all the persons are concerned. 3A different rule of law will apply if, by your order, I promise to pay to someone, to whom you wish to make a donation, the money which I think that I owe you, for I can protect myself by an exception on the ground of fraud; and, moreover, I can compel the stipulator, by means of the proceeding called incerti, to give me a release from the obligation. 4In like manner, if I, by your order, promise to pay a certain sum of money, which I think that I owe you, to a third party whom you believe to be your creditor, I can bar the person making the demand by an exception on the ground of fraud; and, in addition to this, by availing myself of the proceeding called incerti against the stipulator, I can compel him to release me from the stipulation. 5If Titius should pay me a sum of money without any stipulation, but on the condition that it will only belong to me when Seius becomes Consul, the money will become mine when Seius obtains the consulship, even though the person who made the donation should be insane or dead at that time. 6If anyone, desiring to make a donation of money to me, gives it to someone else to bring to me, and he should die before he does so, it is settled that the ownership of the money does not pass to me. 7I gave Titius the sum of ten aurei on the condition that he would purchase Stichus with it. I ask, if the slave should die before he was purchased, whether I can recover the ten aurei by any action. The answer was that this is rather a question of fact than of law, for if I gave the ten aurei to Titius in order that he might purchase Stichus, and I would not have given them to him otherwise, and Stichus should die, I can recover the amount by an action. If, however, I had the intention of giving the ten aurei to Titius, in any event, and, in the meantime, he proposed to purchase Stichus, and I stated that I gave him the money in order that he might purchase him, what I have said should be considered rather a reason for the donation than the condition upon which the money was paid, and if Stichus should die, the money will remain in the hands of Titius.

3 Ulpianus, On the Edict, Book LXVII. And, generally speaking, this question must be considered in making donations, for there is a great deal of difference whether there was a cause for making the donation, and whether a condition upon which it is dependent was imposed. If there was a cause, the property cannot be recovered; if a condition was imposed, there will be ground for its recovery.

4 Paulus, On Sabinus, Book LXXII. A donation can be completed even by a party who intervenes.

5 Ulpianus, On Sabinus, Book XXXII. Neither honorable nor dishonorable donations are prohibited, where they are made on account of affection. They are honorable where they are given to deserving friends or relatives; dishonorable, where they are given to harlots.

6 The Same, On Sabinus, Book XLII. Where anyone permits me, by way of donation, to remove stone from his property, as soon as the stone is taken out it will be mine, and he cannot prevent me from having it by forbidding its removal, because it becomes mine, as it were, by delivery. It is clear that if someone, who had been employed by me, should quarry the stone, he quarries it for me. If, however, anyone purchases the stone from me, or leases it for a consideration, in such a way that I can permit him to quarry for himself, and, before he does so, I change my mind, the stone will continue to belong to me. If I should change my mind afterwards I cannot revoke his act, as delivery is presumed to have been made when he quarried the stone with the consent of the owner. What applies to the stone should also be considered to apply where a tree is cut down, or is taken out by the roots, under similar circumstances.

7 The Same, On Sabinus, Book XLIV. A son under paternal control cannot make a donation even if he has free administration of his peculium, for this is not granted him in order that he may lose his property. 1But what if, induced by some good reason, he makes a donation? Can it be said that there is legal ground for making it? The latter is the better opinion. 2Again, let us see if anyone should grant a son under paternal control the free administration of his peculium, and should add specifically that this is done to enable him to make a donation; will the donation be valid? I do not doubt that he can make a valid donation under such circumstances. 3Sometimes the power to make a donation may be inferred from the rank of the person; for suppose that the son was of Senatorial rank, or had been promoted to some other portion, why can it not be said that his father, when he gave him the free administration of his peculium, granted him also the privilege of making a donation of it, unless he expressly deprived him of the power of doing so? 4For the same reason that a son under paternal control is forbidden to make a donation inter vivos, he is also forbidden to make one mortis causa. For although he can make a donation mortis causa with the consent of his father, he is prohibited doing so if his consent is not given. 5It must, however, be remembered that if anyone is permitted to make a donation without it being specified that he can make one mortis causa, he cannot do so. 6All these regulations apply to persons in civil life. Where, however, soldiers have a castrense or a quasi castrense peculium, they are in such a position that they can make a donation mortis causa as well as a donation inter vivos, since they have testamentary capacity.

8 Paulus, On Sabinus, Book XV. Money paid by freedmen in order to obtain their liberty is not a donation, for a consideration is given for it.

9 Pomponius, On Sabinus, Book XXXIII. When permission is given anyone to lodge without payment in the house of another, it is considered a donation; for he who has the lodging is held to obtain as a gift the rent which he does not pay. A donation can also be valid without the delivery of the property; as, for instance, where, by way of donation I make an agreement with my debtor that I will not demand payment of him before a certain time has elapsed. 1The income from property which is donated is not included as part of the donation. If, however, I should give you, not the ownership of a tract of land, but the right to gather the crops, this will be held to constitute a donation. 2If a son under paternal control makes a donation by the order, or with the consent of his father, it is the same as if the father himself had made it, or if you should make a donation to Titius of my property with my consent in your own name. 3No one can make a donation, unless what is given becomes the property of the person to whom it is made.

10 Paulus, On Sabinus, Book XV. A donation can properly be made to a person who is absent, whether you send someone to take it to him, or whether you direct him to keep something which he has in his possession. If, however, he does not know that the property which is in his possession is given to him, or if, after it is sent to him, he should not accept it, he will not become the owner of the article designated, even if it has been sent to him by his own slave; unless it was given to the latter with the intention that it should instantly become the property of his master.

11 Gaius, On the Edict of the Urban Prætor Concerning Legacies. When a dispute arises with reference to the amount of the donation, neither the children of female slaves, crops, rents, nor wages are held to be included.

12 Ulpianus, Disputations, Book III. Anyone who binds himself to make a donation can, according to a Rescript of the Divine Pius, only be sued for an amount which he is able to pay, for what he owes to his creditors must first be deducted; but what he is bound to give in the same manner to others should not be deducted.

13 The Same, Disputations, Book VII. A certain person, who desired to make a donation to me, delivered the property to a slave jointly owned by Titius and myself, and the slave received it as an acquisition for my fellow joint owner, or did so on behalf of both of us. The question arose, what should be done? It was decided that although the slave accepted the property with the intention of acquiring it for my fellow joint owner, or for both himself and me, he, nevertheless, acquired it for me alone. For if he delivered it to my agent, with the intention that he should acquire it for me, and he accepted it in order to obtain it for himself, this will have no effect so far as he is concerned, but he will acquire the property for me.

14 Julianus, Digest, Book XVII. Anyone who cultivates the land of another, by way of making a donation, cannot reserve anything on account of expenses which he may incur, because he immediately transfers to the owner the right to any implements which he takes upon the land.

15 Marcianus, Institutes, Book III. According to a Constitution of the Divine Severus and Antoninus, donations made after the accusation of a capital crime are valid, unless the defendant is convicted.

16 Ulpianus, Opinions, Book II. By the following clause, “Let my heirs take notice that my entire wardrobe, and any other property which I had in my possession at the time of my death, has been given to So-and-So and So-and-So, my freedmen,” the ownership of the property will, by a liberal interpretation, belong to the said freedmen.

17 The Same, On the Edict, Book LVIII. Where property awarded by a judicial decision has been included in a new stipulation, and a release had been made of the latter for the purpose of making a donation, it must be said that the release will be valid.

18 The Same, On the Edict, Book LXXI. Aristo says that when any other transaction is mixed with a donation, an obligation growing out of the former is not contracted with reference to the donation. Pomponius also says that he holds the same opinion. 1He also says that Aristo thinks that if I deliver to you a slave on condition that you manumit him after five years, you cannot act before the five years have elapsed, because a species of donation is considered to be included in the transaction. He, however, states that it will be otherwise if I deliver the slave to you in order that you may manumit him immediately; for, in this instance, there is no donation, and hence the obligation exists. Pomponius, however, says that in the first instance the intention of the parties should be ascertained, for the term of five years may not have been prescribed with a view to making a donation. 2Aristo also says, that if a slave is delivered for the purpose of making a donation on condition that he shall be manumitted after five years have elapsed, and the slave belongs to another, a doubt may arise whether the slave can be acquired by usucaption, because a species of donation exists in this case. Pomponius says that this question also applies to donations mortis causa, and he is inclined to think that if the slave was donated under the condition that he be manumitted after five years, it may be held that he can be acquired by usucaption. 3Labeo says that if anyone should give me property belonging to another, and I should incur considerable expense on account of it, and then it should be evicted, I will not be entitled to any action on this account against the donor; but it is evident that I will be entitled to one against him on the ground of fraud, if he acted in bad faith.

19 The Same, On the Edict, Book LXXVI. It is our practice where, in public matters, a question arises with reference to a donation, to only ascertain whether the donor made a promise to the city for some just cause, or not; since if he did so in consideration of some office which he received, he will be liable; otherwise, he will not. 1Labeo says that compensation for services of this kind is not included in donations; for example, if they are made conditionally as follows, “If I come to your aid; if I give security for you; if you make use of my services, or influence in the transaction.” 2A donation cannot be acquired by anyone who is unwilling to accept it. 3Where a man lends money to Titius to be paid to Seius, to whom he desires it to be donated, and Titius does not pay it to Seius until after the death of the donor; the result will be that it can be said that the money will belong to Seius, whether he who paid it knew that the donor was dead, or was not aware of that fact; because the money still belonged to the latter. If he did not know that the donor was dead, he will be released from his obligation, if he borrowed the money to be paid to Seius. If, however, I should direct you to pay a certain sum of money to Titius, to whom I intend to donate it, and you not being aware that I was dead should do so, you will be entitled to an action on mandate against my heirs; but if you knew it, you will not be entitled to this action. 4If anyone lends money to a slave, and the slave, having afterwards become free, makes a new promise to pay it, this will not be a donation, but the acknowledgment of a debt. The same rule applies to the case of a ward, who becomes indebted without the authority of his guardian, if he afterwards, with the consent of his guardian, contracts a new obligation. 5Stipulations which are entered into for a valid consideration are not held to be donations. 6In conclusion, Pegasus thinks that if I promise you a hundred aurei, under the condition that you swear to bear my name, this will not be a donation, because the promise was made for a consideration, and a consideration was paid.

20 Marcellus, Digest, Book XXII. If a patron is appointed heir to the share of an estate to which he is legally entitled, and his freedman charges him to pay a certain sum of money to someone, and he promises to do so in the presence of the beneficiary of the trust, he will not be compelled to pay it, for fear that the share due to him as patron under the law may be diminished. 1A doubt may arise with reference to an heir who, in accordance with the will of the testator, promises to pay a legatee what he would have a right to retain under the Falcidian Law, but the better opinion is that he cannot violate his obligation. For if he does make payment, he will be considered to have exactly complied with the wishes of the testator, and no suit for recovery will be granted him; just as where he had made a previous stipulation, and acted contrary to the wishes of the testator, which he already had acknowledged, his claim will, with good reason, be barred.

21 Celsus, Digest, Book XXVIII. In order to make me a donation you bound yourself to my creditor, to whom I delegated you. The act is valid, for the creditor receives what he is entitled to. 1If, however, I order my debtor to bind himself to you for the purpose of making you a donation greater than that authorized by law, the question arises whether or not you can be barred by an exception upon the ground of the donation. My debtor cannot avail himself of the exception against you, if you bring an action, because I am in the same position as if I had given you the amount, after having collected it from my debtor, and you had lent it to him. If the money has not been paid by my debtor, I will be entitled to an action against him to annul anything which he has promised you above the amount authorized by law, so that he will only remain liable to you for the balance. If, however, you have already collected the entire amount from my debtor, I will be entitled to an action against you to recover the excess of what the law prescribes.

22 Modestinus, Differences, Book VIII. It is perfectly equitable that he who has promised a sum of money, or anything else, for the purpose of making a donation, shall not be liable for interest on account of delay in paying the money; and this is especially the case where the donation is not included in the class of bona fide contracts.

23 The Same, Opinions, Book XV. Modestinus gives it as his opinion that a creditor can, by mere agreement, entirely remit or diminish the amount of interest to be due hereafter, without affecting the validity of the donation on the ground that the amount is illegal. 1It is the opinion of Modestinus that a person whose mind is affected cannot make a donation.

24 Javolenus, On Cassius, Book XIV. An exception should be granted to the surety of him who, for the purpose of making a donation, promised a sum of money greater than that authorized by law, even against the consent of the principal; for if the latter should not be solvent, the surety will lose the money.

25 The Same, Epistles, Book VI. If I give you something in order that you may donate it to Titius, in my name, and you give it to him in yours, do you think that it becomes his property? The answer was that if I give you something for you to give to Titius in my name, and you give it to him in your own name, so far as the technicality of the law is concerned, it does not become the property of the person who receives it, and you will be liable for theft; but the more liberal construction is that if I bring an action against the person who has received the property, I can be barred by an exception on the ground of fraud.

26 Pomponius, On Quintus Mucius, Book IV. A simple statement in an account does not render anyone a debtor; for instance, if we wish to make a donation to a freeman, we can make the statement in our account that we owe it, but no donation is understood to be made.

27 Papinianus, Questions, Book XXIX. A young man named Aquilius Regulus wrote to Nicostratus, his teacher of rhetoric, as follows: “Because you have always remained with my father, and have benefited me by your eloquence and your care, I give, and permit you to lodge in and make use of, such-and-such an apartment.” Regulus having died, the right of Nicostratus to the apartment was disputed; and when he consulted me, I told him that the act of Regulus could not be maintained to be a mere donation, but that he had remunerated him for his services, and granted him this privilege by way of compensation, and therefore, that the donation should not be held to be void for the time following the death of Regulus. If Nicostratus had been ejected, he could have gone into court and protected himself by an interdict, in the same way in which an usufructuary could have done, as he obtained the use of the apartment through having been given possession of the same.

28 The Same, Opinions, Book III. A father donated an estate, which had been left to him, to his daughter, who had become her own mistress. The daughter must satisfy the creditors of the estate, and if she should not do so, and the creditors should have recourse to her father, she can be compelled by an action præscriptis verbis to defend her father against the creditors.

29 The Same, Opinions, Book XII. A donation is held to be made if property is given when the donor is not compelled to do so by any law. 1A certain person, having been interrogated in court, answered that the heirs of his guardian did not owe him anything. I gave it as my opinion that, by doing so, he had lost his right of action, for although these words may be understood to indicate not a business transaction, but a donation, still, he who has made an admission in court cannot contradict it. 2It has been settled that where anyone makes a donation of a portion of the estate of his next of kin, who is still living, it is void. But it was held that if he who made the donation afterwards succeeded to the estate under the Prætorian Law, all suits arising from it should be refused him, because his acting in such haste was contrary both to good morals and the Law of Nations.

30 Marcianus, On Informers. For he should be deprived of the estate as being unworthy of it.

31 Papinianus, Opinions, Book XIII. It is established that donations made to a concubine cannot be revoked, for not even if marriage should afterwards be contracted by the parties, will what formerly was valid by law become of no force or effect? But where the question was asked if marital honor and affection did not already exist, I answered that this should be determined by considering the character of the persons and the nature of their union in life, for a mere written contract does not constitute marriage. 1Where certain property was given by a mother to the husband of her daughter, in addition to the dowry, I gave it as my opinion that it should be considered to have been given to the daughter, who herself was present, and delivered it to her husband; and that the mother, who was offended, had no right to recover the property, nor could she under the law bring a personal action to do so, because the husband had specifically provided that the said property should be given to him for the benefit of the girl, in addition to her dowry; since by this statement, not only was the character of the donation indicated, and it was clear that the property was not separated from the use of the same, but it also showed that it was a peculium separate and distinct from the dowry. The magistrate, however, should determine whether the mother should recover the property if she was justly offended with her daughter, and he must render a decision with proper regard to the respect to be manifested toward a mother, and one which will coincide with the judgment of a good citizen. 2A father who gave certain slaves to his daughter, who was under his control, and did not deprive her of her peculium when he emancipated her, is held to have perfected the donation by his subsequent act. 3I gave it as my opinion, that where property was deposited in a temple under the condition that he alone could remove it who left it there, or Ælius Speratus, after the death of the owner, it would not be considered as a donation. 4Donations cannot be valid after the crime of treason has been committed, as the heir is also liable, even though the guilty party should die before having been convicted.

32 Scævola, Opinions, Book V. Lucius Titius sent the following letter: “So-and-So to So-and-So, Greeting. You can make use of such-and-such an apartment and all the rooms above it, gratuitously; and I notify you by means of this letter that you can do so with my consent.” I ask whether the heirs of the writer can forbid the use of the apartment? The answer was that, according to the facts stated, the heirs of the person who wrote the letter can change the intention of the latter.

33 Hermogenianus, Epitomes of Law, Book VI. Anyone who has made a new promise to pay, after having entered into an agreement to make a donation, can be sued in an action based on the promise, not for the entire amount, but only for what he is able to pay; for it has been settled that the cause and origin of the promise to make payment, and not the authority of the judge, must be considered. He, however, who has had judgment rendered against him on account of a donation, and an action is brought against him to enforce the judgment, can very properly ask that he only be sued to the extent of his pecuniary resources. 1Where money has been paid to Titius as a donation, under the condition that he will immediately lend it to the donor, the transfer of ownership is not prevented; and for this reason where the same money is lent to the donor, a new ownership of it is acquired. 2Persons who are dumb and deaf are not prohibited from making donations. 3When anyone desires to make a donation to you, and you intend to donate the same article to another, the donation will be perfected if the first promises, with your consent, to give it to the second; and because the first gave nothing to the second, by whom he can be sued, he can have judgment rendered against him for the entire amount, and not for as much as he is able to pay. The same rule is observed where he who is to receive the donation has delegated the donor to his creditor; for, in this instance, the creditor is merely transacting his own business.

34 Paulus, Decisions, Book V. If a father should lend money at interest in the name of his emancipated son, with the intention of giving it to him as a donation, and the son makes a stipulation with reference to said money, there is no doubt that the donation is perfected by operation of law. 1If anyone should rescue a person from the hands of robbers, or enemies, and receive something from him as a reward for doing so, a donation of this kind is irrevocable, and should not be designated a reward for an eminent service rendered; as it has been decided that no limit should be fixed to an act performed for the purpose of saving life.

35 Scævola, Digest, Book LI. A man wrote to a slave whom he had manumitted, as follows: “Titius to Stichus, his freedman, Greeting. After having manumitted you I notify you by this letter, written by my own hand, that I give to you everything which you have in credits, in movable property, and in money.” He also made the same freedman heir to two-thirds of his estate by will, and Sempronius his heir to the remaining third; but he did not bequeath to Stichus his peculium, nor did he direct that he should have the rights of action growing out of the same. The question arose whether an action should be granted to Stichus for the entire amount of the credits, including his peculium; or whether it should be granted to both of the heirs in proportion to their respective shares of the estate. The answer was that, in accordance with the facts stated, the action should be granted to both of them in proportion to their respective shares of the estate. 1Lucius Titius gave to Mævia a tract of land, by way of a donation, and a few days afterwards before delivering the same, he pledged the land to Seius, and then, within thirty days, gave Mævia possession of the said land. I ask whether the donation was perfected or not. The answer was that, in accordance with the facts stated, it was perfected, but that the creditor was undoubtedly entitled to his right in the land under the pledge. 2A grandmother lent money, in the name of Labeo, her grandson, and always collected the interest, and the evidences of indebtedness were received by Labeo, and were afterwards found among the assets of his estate. I ask whether the donation should be considered to have been perfected. The answer was that, as the debtors were liable to Labeo, the donation was perfected.