Учебный год 22-23 / The Law of Obligations

modernus pandectarum a different view prevailed, and one was generally prepared, on the basis of D. 17, 2, 65, 15, to entertain an actio pro socio manente societate.121 This action had thus changed its nature: it no longer necessarily and exclusively aimed at a general settlement of accounts, but could be brought in order to obtain specific performance in terms of the partnership agreement, and to force the sorii to honour their obligations to contribute to the partnership.

4. The "community of collective hand"

Many of the essentials of the societas of the ius commune live on in the so-called civil (or BGB-) partnership of modern German law,122 most notably the fact that it finds its basis in a consensual, express or implied, obligatory contract which can accommodate the pursuit of any kind of lawful purpose by two or more (natural or juristic) persons.123 There is, however, one most interesting and characteristic new element which was grafted on to this partnership contract in the course of the traveaux preparatories of the German Civil Code. The partners of a personal business association form, as a rule, a community of collective hand (Gesamthandsgemeinschaft).124 The contributions of the partners and the objects acquired for the partnership in the course of the management of the affairs of the partnership become the common property of the partners.125 But this partnership property is not held in (fractionally shared) joint ownership.126 It forms a separate group of assets distinct from the private estate of the partners,127 and the rights attached to these assets can be exercised collectively only by the whole group of partners. An individual partner may not dispose of his share in the partnership property or in the individual objects belonging thereto; he is also not entitled to demand division.128 The property regime

121Cf. e. g. Gluck, vol. 15, pp. 445 sqq.; Pothier, Traite du contrat de societe, n. 135.

122Like m ost mo de r n civil -l a w j uri sdi ctio ns, Ge r ma n l a w distin guis h e s be t we e n civil

partne rships ( §§ 705 sqq. BGB) and commercial partne rships ( as re gu late d in §§ 105 sqq. of the Comme rcial Code ( HGB) ). T he latte r type must have as its obje ct the carr yin g on of a comme rcial ente rprise ( as define d in §§ 1-3 HGB) of a kind or siz e which is that of a fully fle dge d me rchant. For an ove rvie w c(. He e ne n, op. cit. , note 1, nn. 68 sqq. , 96 sqq. On the histo r y of t he co m me r ci al co m p anie s c f. , f or e x a mple , H. Ke lle nb e nz , H R G , v ol . I , c ol . 1935 sqq.

Mitgdan, vol. II, p. 344; Windscheid/Kipp, § 405; for an ove rvie w cf. e. g. Hee ne n, op. cit., note 1, n. 8.

125§ 718 I BGB .

126§§ 74 1 sqq. B GB .

127 As a conse que nce, § 719 II BGB provide s that a de btor may not set off a claim which he has a gainst a single partne r a gainst a claim which be longs to the partne rship prope rty.

128 § 719 I BGB. Furthe rmore, it is characte ristic of the community of collective hand, that w h e r e a p a r t n e r re t i re s f r o m t h e p a r t n e r s h i p ( e . g. b y gi v i n g n o t i ce , d yi n g, o r h a v i n g bankruptcy procee dings institute d a gainst him) and whe re-thcj^ rtgifcrship mntinue s among the other partners, the share of the retiring partpetactrues'tp the remaining partners:

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472 The Law of Obligations

therefore gives the partnership the appearance, particularly in relation to third parties, of a self-sufficient body, as a legal entity in its own right. It has to be remembered, though, that the partnership does not possess independent legal personality (one of the characteristics of the Roman societas that has been maintained throughout the centuries), and that it is therefore not "the" partnership as such, but the individual partners (in their collectivity) who own the social property. The adoption of these principles into modern German law forms part of what Huebner enthusiastically celebrated as a "triumph great almost beyond expectation",129 vouchsafed within the law of associations, for Germanic legal science.130 We are dealing here with a form of group ownership that goes back to the communities of collective hand in medieval Germanic customary law,131 which in turn find their origin in the family associations formed after the death of the housefather. It seems to have been a widespread practice that the sons, in order to maintain the unity of the family estate, continued to hold the inherited estate in a common household. These households (and similar forms of personal unions) did not exist as corporeal entities, independent of the individual members. That was evident, most notably, in the fact that they could engage in legal transactions only through the collective action of all associates or commoners. Originally, they had to clasp hands and then, as with collective hand ("cum commumcatis manibus consimilique consensu", "unanimi consensu et manu composita"), perfect the juristic act.

Whether this type of property regime provides a particularly happy solution for the modern law of partnership may well be doubted; business organizations, run in the form of a civil company, appear to require for their effective management the status of fully fledged separate legal entities.132 Not only have reform proposals been made along these lines,133 but even de lege lata a variety of authors have attributed legal personality to the civil partnership.134

5.South African law of partnership

(a)Sources

The modern South African law of partnership, uncodified as it is, is still

129A History of Germanic Private Law (1918), p. 159.

130And propagated, in the course of the 19th century, most notably by Otto von Gierke; cf., for instance, Das deutsche Genossenschaftsrecht, vol. II (1873), pp. 923 sqq.

For further reference cf. G. Buchda, Geschichte und Krilik der deutschen Gesamthandlehre

(1936); idem, HRG, vol. I, col. 1587 sqq.; cf. also e.g. Huebner, op. cit., note 129, pp. 139

~~Karsten Schmidt, op. cit., note 100, pp. 471 sqq., 481 sqq.

133Karsten Schmidt, op, cit., note 100, pp. 491 sqq.

134Cf. e.g. Werner Flume, Algemeiner Teil des Biirgerlichen Rechts, vol. I, 1, Die

Personengesellschaft (1977), pp. 54 sqq., 68 sqq. For a comparative analysis of the problem cf. Heenen, op. cit., note 1, nn. 6 sqq.; in France, for instance, civil and commercial partnerships are now legal entities by statute.

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firmly rooted in the societas of the ius commune. Even where the courts have turned to English law, the position has not substantially been changed. Thus, for instance, partnership is said to be a contract uberrimae fidei.135 This phrase, Latin, yet slightly illogical136 and unRoman, attempts to reflect what Ulpianus had referred to as "ius quodammodo fraternitatis", which is implicit in societas.137 The notion of the implied authority of the socii to act for each other has been imported from English law138 but finds, as we have seen, its correspondence in the ius commune. English literature has often been referred to (particularly: Lindley on Partnership), but more as a matter of persuasive authority and in view of the fundamental similarity between the English and the Roman-Dutch law of partnership.139 This similarity is explicable partly because the medieval lex mercatoria was the historical basis of English commercial law (including commercial associations),140 and partly on the basis that the jurisdiction of the Court of Chancery (due to the convenience of its procedure) extended to all

matters which involved the taking of accounts, partnership being one of these.141

Much attention has been paid by the South African courts to Pothier, whose Traite du contrat de societe was translated into Dutch by Johannes van der Linden, the last of the classical Roman-Dutch writers.142 Thus,

135Wegnerv, Surgeson 1910 TPD 571 at 579; Purdon v. Muller 1961 (2) SA211 (A)at230G.

136Cf. Mutual and Federal Insurance Co. Ltd. v. Oudtshoorn Municipality 1985 (1) SA 419 (A)

at 433C-F (per Joubert JA), relating, however, to insurance contracts: ". . . Moreover, there is no magic in the expression ubcrrima fides. There are no degrees of good faith. It is entirely inconceivable that there could be a little, more or most [utmost] good faith. The distinction is between good faith or bad faith. There is no room for uberrima fides as a third category of faith in our law. . . . In my opinion uberrima fides is an alien, vague, useless expression without any particular meaning in law."

137 D. 17, 2, 63 pr. It is a common characteristic of all modern personal business associations: c(. Heencn, op. cit., note 1, nn. 28 sqq.; on rights and liabilities flowing from

the ius fraternitatis Heenen, op. cit., note 1, n. I l l sqq.

138 Cf. e.g, Braker & Co. v. Detner 1934 TPD 203 at 206 sqq.

li9Cf. e.g. Better v. Van Niekerk 1960 (2) SA 779 (A) at 784F-785A. For a detailed comparative investigation of the principles of Roman law, 17th and 18th century civil law and the old common law cf. Story, op. cit., note 1, passim; for a comparison between (classical) Roman law and (modern) English law cf. Buckland/McNair, pp. 300 sqq.; j.M.

Barrett, Erwin Seago, Partners and Partnerships in Law and Taxation, vol. I (1956). pp. 7 sqq. ("The law of partnership is a noted exception to the common expression: The Roman law has not had an appreciable influence on the English Law"). In many respects, the English law reflects Roman ideas still more closely than modern Continental codes. Thus, for instance, Heenen (op. cit., note 1, n. 4) states that "fi]t is unquestionably in England and in the United States that the 'personal' character of the partnership has been taken the furthest: any change in the members or even the simple withdrawal of a member results in the dissolution of the partnership; if the business is continued, a new partnership is created." (This is different in Germany, Italy and France: Heenen, op. cit., note 1, n. 48.)

140Cf. e.g. Holdsworth, vol. VIII, pp. 194 sqq.

141Another factor bringing partnership cases under the jurisdiction of equity was the impossibility of actions at common law between partners and the firm, or between two firms having a common member; ct. Sir Frederick Pollock, Л Digest of the Law of Partnership (11th ed., 1920), p. 24.

142Verhandeling van het Recht omtrent Socie'teiten of Compagnieschappen en Andere Cemeenschappen (1802). An English translation (A Treatise on the Contract of Partnership) by

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the following formulation of the essentialia of a partnership contract is based on Pothier:

"First, that each of the partners brings something into the partnership, or binds himself to bring something into it, whether it be money, or his labour or skill. The second essential is that the business should be carried on for the joint benefit of both parties. The third is that the object should be to make profit. Finally the contract between the parties should be a legitimate contract. . . . Where all these four essentials are present, in the absence of something showing that the contract between the parties is not an agreement of partnership, the court must come to the conclusion that it is a partnership."143

The first authoritative statement occurs inJoubert v. Tarry & Co.,144 and it has been confirmed on a number of occasions.145 It has, however, been pointed out that this definition is partly trivial146 and partly inconclusive.147 The authority of Pothier has also been invoked to justify continuation of the partnership for the benefit of a deceased partner's estate, where this was expressly provided in the partnership agreement.148 Such pacta de stando in perpetua societate appear to have been common in the commercial practice of the usus modernus;149 among the Roman-Dutch writers their validity was in dispute.150

(b) General features

Otherwise, the South African courts still recognize the general common-law principle that "a partnership is not a legal entity or persona separate from its members".151 Occasionally, however, a

O.D. Tudor appeared in 1854. Van der Linden himself, incidentally, also wrote about the law of partnership in his Regtsgeleerd Practicaal en Koopman's Hctndboek fBoek IV, Afdeeling I, §§ XI sqq.), leaning heavily on Pothier's Treatise. Cf. Pothier, Traite du contrat de societe, nn. 8 sqq.

144 145

For example in Besier v. Van Niekerk 1960 (2) SA 779 (A) at 783H-784A; Purdon v. Mullet 1961 (2) SA 211 (A) at 217H.

146Detyannis v. Kapousousoglu 1942 (2) PH A40 (W) (". . . illegality as a ground of invalidation seems to be part of the general law of contract; as such it does not seem to me to be convenient to include it in a category of the essentials of partnership").

147Criticismhas in so far been levelled at the qualification ("Where all . . ."). F.P. van den Heever, The Partiarian Agricultural Lease in South African Law (n.d.), p. 23, for instance, writes: "The ruling is about as sound as the argument that because an ostrich is a two-legged,

animate being it is, prima facie, and in the absence of proof of some non-essential disqualification, a man." Cf. further De Wet en Yeats, p. 384.

'*8 Torbel v. Executors ofAttwell (1879) 9 Buch 195 at 200 sq. (per de Villiers CJ).

149Coing, p. 469.

150Cf. e.g. Voet, Commentarius ad Pandectas, Lib. XVII, Tit. II, IV, as opposed to Van Bynkershoek, Quaestiones Juris Privatt (Lugduni Batavorum, 1744), Lib. Ill, Cap. X; Van der Linden, Koopman's Handboek, Boek IV, Afdeeling I, § XII; further: Story, op. cit., note 1,

§§5, 196. Roman law had accepted only a contractual arrangement to the effect that the partnership should continue to exist between the remaining partners: Paul. D. 17, 2, 65, 9 (often, however, regarded as interpolated; cf. e.g. Arangio-Ruiz, op. cit., note 5, p. 159, but see Kaser, RPr II, p. 412; idem, (1975) 41 SDHI 323 sqq.); cf. also Inst. Ill, 25, 5.

151Strydom v. Protect Eiendomsa^ente 1979 (2) SA 206 (T) at 209C-D. Cf. also e.g. Mutter

v. Pienaar 1968 (3) SA 195 (A) at 202G-H.

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"juristic ghost"152 materializes, for the societas, even though not a legal person, may sue or be sued in its own name, and it is treated by the Insolvency Act (24/1936) as having a separate estate and as being in the position of any other debtor.153 South African law accommodates all sorts of partnerships, universal and particular154 (including unius rei).155 Whether a universal partnership may be only universorum quae ex quaestu veniunt or also universorum bonorum is questionable.156 Unlike in most modern civil-law jurisdictions, no distinction is drawn between civil and commercial partnerships.157 The ordinary action with which one partner sues another is the actio pro socio.158 It normally lies only after dissolution of the partnership, but may also be brought manente societate, most notably in order to enforce a partner's duty to contribute to the partnership.159 The partnership may be quoad sortem or quoad usum, in other words, the establishment of a partnership fund is not essential for the constitution of a partnership, although it is very common.160 The individual items contributed to such fund must be made the common property of all the partners.161 At the termination of the partnership162 the partnership assets therefore have to be divided or

152 H.R. Hahlo, Ellison Kahn, The Union of South Africa: The Development of its Laws and Constitution (1960), p. 702.

153Michalow v. Premier Milting Co. Ltd. 1960 (2) SA 59 (W) at 63B-G; Strydom v. Protect Eiendomsagente 1979 (2) SA 206 (T) at 209F-210C. In Potchefstroom Dairies and Industries Co. Ltd. v. Standard Fresh Milk Supply Co. 1913 TPD 506 at 513, partnership has been referred to as a "quasi-persona".

154Cf. Henning/Delport, op. cit., note 57, n. 365; for the common law, see Story, op.

cit., note 1, §§ 71 sqq., for the ius commune Gliick, vol. 15, pp. 375 sqq.

155Bester v. Van Niekerk 1960 (2) SA 779 (A) at 783F-784A.

156Annabhay v. Ramlall 1960 (3} SA 802 (D) at 805A-F; Henning/Delport, op. cit., note 57, n. 366. The societas omnium bonorum has possibly fallen into disuse in Roman-Dutch law; according to Grotius, Inleiding, III, XXI, 3, it was even "van oude tijden in Holland . . .

verboden geweest". But see Pothier, Traite du control de societe, nn. 24 sqq. The French code civil forbade an absolute societas omnium bonorum except between husband and wife (art. 1837).

15This may be due to the influence of English law, where such a distinction does not

obtain either. On the situation under the ius commune ("II est manifeste que, pour nos anciens auteurs, la societe de commerce n'est qu'une variete, a paine differenciee, de la societe civile") cf. Levy-Bruhl, as quoted by Coing, p. 465. But cf. Pothier, Traite du central de societe, n. 56.

158Shingadia Brothers v. Shingadia 1958 (1) SA 582 (FC) at 583H.

159Cf. e.g. Munro v. Ekerold 1949 (1) SA 584 (SWA) at 589; Oostkuizen v. Swart 1956 (2) SA 687 (SWA) at690H-691A; Shingadia's case, at p. 583; Henning/Delport, op. cit., note 57,

nn.407 sqq.

160For details, see Henning/Delport, op. cit., note 57, n. 391; Beinart, 1961 Actajuridica 118 sqq.

For details, see Henning/Delport, op. cit., note 57, n. 395. According to Voet,

Commentarius ad Pandectas, Lib. XVII, Tic. II, VI and Oosthuizen v. Swart 1956 (2) SA 687 (SWA) at 692A-E, movables which are in the possession of a partner at the date of entering into the partnership become ipso iure common to the partners, without genuine delivery. This is the transitus legalis of D. 17, 2, 1. 1 and 2, as understood by the jurists of the ius commune.

162On the various circumstances under which a partnership is dissolved (apart, of course,

from the bringing of the actio pro socio substantially the same as in Roman law), cf. Henning/Delport, op. cit.. note 57, n. 419. Cf. also Pothier, Traite du control de societe.

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distributed again.163 Thus the question arises, whether such liquidation is to be effected in terms of the actio pro socio or of the actio communi dividundo. The Appellate Division of the Supreme Court had occasion to pronounce on it in a case involving the goodwill of a partnership practice of veterinary surgeons.164 Joubert JA, in an interesting and most erudite judgment, conceded that, from a purely historical and technical point of view, the actiones pro socio and communi dividundo are separate and distinct legal remedies, each with their own characteristics. Nevertheless, he chose to follow the "logical and practical"165 approach of Pothier (introduced by Van den Linden into Roman-Dutch law), according to whom the actio pro socio may be employed for the distribution or division of partnership assets in the same way and with the same result as the actio communi dividundo. As, in turn, the principles of the common law applicable to the actio communi dividundo have been extended in Roman-Dutch law by means of an utilis actio communi dividundo to res incorporales which are held in co-ownership,166 the choice of remedy no longer matters. In the result, it was held that by virtue of either of the actions, the retiring partner was entitled to payment of his half-share of the goodwill of the partnership practice which the other partner continued to run.167

nn. 138 sqq.; Story, op. cit., note 1, §§ 265 sqq. (who concludes [§ 267]: "This general coincidence of opinion, in assigning the same causes for the dissolution of partnership, in so many countries, shows, that the doctrine has its true foundation in the general principles of natural justice and reason, rather than in the peculiar institutions of any particular age or nation"; cf. also § 281: "Pothier, Vinnius, and other learned jurists, have done little more than to state the [Roman] doctrine with a few appropriate illustrations." For a comparative survey of the modern law, see Heenen, op. cit., note 1, nn. 4t sqq.

163For a discussion of the problems arising, see Beinart, 1961 Actajuridica 148 sqq.

164Robson v. Theron 1978 (1) SA 841 (A).

165Robson's case at 854E.

166At 857D.

167At 861G-862B. For a discussion of the problem of the goodwill in the context of the

dissolution of a partnership, cf. also Story, op. cit., note 1, §§99 sq.

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1.Introduction

(a)Promises of gifts and executed gifts

"Throughout the world it is regarded as normal for binding promises to be given for payment or some counterpart in kind. Gifts and gratuitous promises, on the other hand, are regarded as something abnormal and the law always treats them in a special way."1

Take the promise to confer a benefit on somebody else, for entirely altruistic reasons. Does the donor really want to be bound? If so, one would have to grant the promisee, even where he is the beneficiary, an action to enforce such a promise. But would it not be slightly odd, if not invidious, to offer legal protection to someone who has not sacrificed anything, and thus to see the donor caught by his own altruistic act? On the other hand, the donor's act may have created a basis for reasonable reliance on the part of the donee; this is particularly true where the donation has already been executed and where the donee may therefore well have made further dispositions over what he has in fact received. Hence the distinction that may be drawn between promises of gift and executed gifts; for while a legal system may be perfectly happy to accept the latter as valid, without further ado, it does not follow that the former must under all circumstances be binding too. In fact, as far as mere promises are concerned, legal systems usually require the donor to demonstrate his seriousness of purpose; they either insist on a special formality as evidence of the intention to be legally bound, or they go even further and lay down general indicia of seriousness2 in order to distinguish promises which are legally significant and thus enforceable from those which are not.

(b) Reasons for policing the transfer of gratuitous benefits

But there are other problems that have to be considered. Genuinely altruistic behaviour is not really all that common, and the spiritually edifying notion of the "cheerful giver" (whom God loveth)3 does not in general correctly reflect the realities of life. Gifts can be made for a whole variety of reasons. Many of them are perfectly acceptable per se, but raise questions as to whether the transaction can still properly be called a donation: a benefit may have been transferred as a remuneration for certain services rendered by the other party or as a reward for an act

1Zweigert/Kotz/Weir, p. 61.

2Konrad Zweigert, "Seriositatsindizien. Rechtsverglcichcnde Bemerkungen zur Scheidung verbindlicher Geschafte von unverbindlichen" 1964 Juristenzeitung 349 sqq.

32. Corinthians 9, 7 (" IXapov yap SOTT^V dfana 6 -вебе, ").

477

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of rescue, or the donor may have wished to induce the donee to act in a certain way or to produce a certain result. In this latter instance, the donor will often impose a charge on the gift (donatio sub modo), with the result that the transaction includes a strong element of exchange. But then there is also a whole variety of situations where the donor does not appear in a very respectable light at all: the gift may have been intended to bribe public officials, to "purchase" political influence (Germany has just been shaken by the "Flick" scandal, stirred up by the discovery of generous contributions by a large firm to political party funds), or to remove certain assets from an insolvent estate before the creditors are able to seize it. Donations are often made with tax advantages in mind, or in order to sidestep and evade statutory provisions affecting either the position of the donor or the validity of an exchange transaction. They can also be used to undermine the formal requirements relating to the making of a last will;4 in particular, donations can lead to a substantial depletion of the donor's assets, which may in turn jeopardize the prospects of inheritance of the donor's next of kin.5 Every legal system that accepts the notion of forced heirship6 must therefore face the problem that gifts inter vivos may diminish the estate transmissible on death to such an extent that the compulsory portions of the necessary heirs may be eroded.

(c) Conceptual problems

There are thus many reasons for policing the transfer of gratuitous benefits. But any such policing requires first of all some conceptual clarity about what a donation is. Is it a contract or a unilateral promise? If a contract, is it a consensual or a real one? If not a contract, when and how does it become binding? Or does it not become binding at all? Is it merely a disposition, on account of which an unbargained-for transfer of assets takes place: the position of the donee being not dissimilar, under those circumstances, to that of an heir after the death of the testator? Is it, as Savigny7 put it, not a specific type of transaction but "ein allgemeiner Charakter . . ., welchen die allerverschiedensten Rechtsgeschafte annehmen konnenV®

* Hence, for instance, provisions such as § 2301 I BGB: "The provisions relating to dispositions mortis causa apply to a promise of a gift made subject to the condition that the donee shall survive the donor." But see § 2301 II: "If the donor executes the gift by delivery of the object given, the provisions relating to gifts inter vivos apply." For details, see HansJoachim Musielak, in: Munchener Kommentar, vol. 6 (1982), § 2301, nn. 1 sqq.; on donatio mortis causa in Roman law, see Kaser, RPr I, pp. 763 sqq.; Yaron, Gifts in Contemplation of Death in Jewish and Roman Law (1960).

3 This aspect has been emphasized, in particular, by John P. Dawson, Gifts and Promises. Continental and American Law Compared (1980).

6Cf. e.g. § 2303 BGB; art. 913 code civil and, on the origins of forced heirship, Dawson, op. cit., note 5, pp. 29 sqq.

7System, vol. IV, p. 3.

8A general character which the most divergent legal transactions may adopt.

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What are the elements of a donation: a permanent diminution of the donor's capital resources, an increase in the resources of the recipient and, as the essential test for distinguishing gifts from other transactions, the intention of the donor to enrich the donee? Or does it suffice that the impoverishment involved be unrecompensed? The legal analysis of donation raises intricate problems9 and, in dealing with them, modern civil-law legal systems have preserved many characteristic elements of their Roman heritage. Roman law itself, however, here as everywhere else, was not static, but went through various stages of development. As far as donations are concerned, we should look at three different periods: classical law, the Constantinian reform and the position at the time of Justinian.

2.The concept of donation in classical Roman law

(a)Donatio and the contractual scheme

For the classical lawyers, donation was a disposition for the benefit of somebody else, for which this other party was not expected to give any recompense.10 Such a disposition could take many forms:11 it could consist in the transfer of ownership, in the creation or extinction of a limited real right, or in the assumption of a debt; the donor could, by way of stipulation, incur an obligation towards the donee, "cede" a claim to him, discharge one or all of the donee's obligations towards a third party,12 or release the donee from an obligation towards himself. All these, and similar, legal acts13 constituted a donation if they were intended to confer a gratuitous benefit on the donee14—if, as several

9 This is already evident from the wide range of opinions as to the appropriate systematical niche for the law of donations. Justinian dealt with it in the context of acquisition of ownership; Buckland/Stein still place it under the heading "The Law of Property; lure civili Modes of Acquisition". Savigny's treatment of donation is part of his discussion of the principles relating to legal transactions in general. Others, too, have regarded the general part of the system of private law as the proper place to discuss donation (contra: Windscheid/Kipp, § 365, n. 18 (pp. 549 sqq.}). The Austrian ABGB places it between the general part of the law of obligations and the specific contracts, the BGB next to sale (i.e. as part of its section entitled "particular obligations"), the code civil alongside succession by will (both being gratuitous methods of acquisition).

10 Gian Gualberto Archi, La donazione (I960), pp. 23 sqq.; Michel, Gratuite, pp. 290 sqq.; Kaser, RPrl, pp. 601 sq.

1 Cf. e.g. Archi, op. cir., note 10, pp. 85 sqq.; Biondo Biondi, "II concetto di donazione", in: Scritti giuridici, vol. Ill (1965), pp. 649 sqq.

12Cf. the example discussed by Schulz, CRL, pp. 566: A pays what D owes to C. A's payment is at one and the same time a solutio with regard to С and (provided there has been an agreement between A and D to that effect) donatio in respect of D.

13Or factual conduct: c(. e.g. lul. D. 39, 5, 14 ("Qui alienum fundum donationis causa excolit. . ."); C. 3, 32, 2, 1 (". . . si non donandi animo aedificia alieno solo imposita sint"; Sev. et Ant.).

14Cf. Marc. D. 24, 1, 49; lul. D. 12, 1, 20 (". . . non ea menta pecunia daretur . . ."); lul. D. 39. 5, 1 pr.

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texts put it, the donor acted animo donandi.15 To determine the scope of the Roman concept of donatio is not at all easy. Theoretically, for instance, it would have been possible to include the unrecompensed transfer of a thing for use. But that situation was covered by commodatum; hence: "utendum dare non est donare"16 or, to use a positive phrasing: "qui donat, sic dat, ne recipiat."17 We do find occasional attempts by the Roman jurists to distinguish between donations and similar, related types of transactions.18 What we look for in vain, however, is a crisp and clear-cut definition of donation. The reason for this seems to be that there was no specific necessity to develop one. Donations did not throw up many problems in practice. More particularly, they did not constitute a contract, and hence no need existed to develop and spell out specific requirements on the basis of which an action might be granted.19 Of course, that did not mean that the Roman paterfamilias was not able to promise to make a gift. Neither did it entail that, where a gift had in actual fact been made, the benefit had to be retransferred because the whole transaction was a legal nullum.

(b) The executed gift

On the one hand stipulations were available for this, as for any other purpose. These all-round transactions were particularly well suited to accommodate the promise of a gift, for they were in any event unilateral by nature and gave rise to an action without being linked to any kind of counterperformance. Also, the oral formality attached to stipulatio constituted, in classical Roman law, the most appropriate of all possible indicia of seriousness.20 Mere agreements or unilateral

15 Cf., for example, Paul. D. 39, 5, 34 pr.; С 5, 3, 1 (Sev. et Ant.)- The origin of the concept of animus donandi is a controversial topic. All references to it were regarded as interpolated by Fritz Pringsheim, "Animus donandi", (1921) 42 ZSS 273 sqq. Biondo Biondi has gone to the opposite extreme and accepts animus donandi, wherever it occurs, as classical (op. cit., note 11, pp. 680 sqq.). For a balanced assessment, see Archi, op. cit., note 10, pp. 33 sqq., 49 sqq.; Kaser, RPr 1, p. 160; for a full re-examination of the matter, see

Sergio Broise, Animus donandi (1975) ("in luogo di una rigida contrapposizione fra diritto classico e dirittogiustittianeo, sipotrebbe suppore una lettta egraduate trasformazione dei testi lungo tutto I'arco di tempo die va daila fine delta giurisprudenza classica alia codificazione di Giustiniano"

(pp. 48 sq.)).

16Vat. 269.

17Ulp. D. 43, 26, 1, 2.

1M Cf. e.g. Ulp. D. 43, 26, 1, 2 and 3; for details, see Biondi, op. cit., note 11, pp. 674 sqq.;

Klaus Slapnicar, Gratis habitare, Unentgeltliches Wohnen nach romischetti und geltendem Recht

(1981), pp. 70 sqq. According to Geoffrey MacCormack, "Gift, Debt, Obligation and the Real Contracts", (1985) 31 Labeo 137 sqq. gift is the earliest type of transaction in simplesocieties. According to him, loans, deposits and pledges (i.e. the real contracts) were only subsequently separated from the class of gifts. This would fit in with the fact that commodatum is much better defined than the broad concept of donatio.

19 Hence, Schulz, CRL, p. 566 says that the classical donation can be defined only in a negative way. Since it did not give rise to obligations, there could, for instance, be no implied warranty of title or for latent defects: see Michel, Gratuite, pp. 294 sqq.

" Cf. supra, note 2.

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