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.

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.

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. 6Ad Dig. 24,1,5,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 365, Note 4.Where 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. 7Ad Dig. 24,1,5,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 365, Note 4.Where 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.

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,

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:

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.

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.

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.

Ulpianus, On Sabinus, Book XXXII. Ad Dig. 24,1,19 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 176, Note 6.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.

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.

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.

Ulpianus, On Sabinus, Book XXXII. Julianus, in the Seventeenth Book of the Digest, says that there were three kinds of donations mortis causa. The first, where the donor, who is under no apprehension of impending death, makes a donation solely with a view to his decease. He says another kind of donation mortis causa is where anyone is disturbed by the immediate prospect of death and makes a donation, so that the article immediately becomes the property of the person who receives it. He says that the third kind of donation is where a man, apprehensive of death, does not give the property so that its ownership will immediately vest in the person entitled to it, but provides that it shall belong to him after the death of the donor.

Ulpianus, On Sabinus, Book XXXII. If anyone convicted of a capital crime should make a donation mortis causa, the donation will be annulled as imperfect; although other donations made by him previous to the suspicion that he was liable to such a penalty may be valid.

The Same, On Sabinus, Book LII. If the wife of a son under paternal control should give him a slave to be manumitted, let us see whether this makes him his freedman, for he can hold both slaves and freedmen as part of his peculium. The better opinion is that the slave in question should not be included in the castrense peculium, because he did not become acquainted with his wife through being in the army. It is clear, however, that if you suppose the wife gave the slave to her husband while he was on his way to camp, in order that he might manumit him, and he renders the freedman fit for military service, it may be said that if he manumits the slave by his own will, and without the consent of his father, he will grant him his freedom.