Учебный год 22-23 / The Law of Obligations

promises, on the other hand, that were not reinforced by means of a stipulation, were unenforceable.21 Donations, therefore, did not fit into the contractual scheme of classical law. But where a donation had in fact been executed, such disposition was legally recognized even where it was not based on a prior stipulation. The gift did not have to be retransferred, because the disposition was both effective and justified. In other words: donations, while not giving rise to contractual obligations, were taken to constitute an adequate basis for a transfer of assets that had already occurred.22 To take the prototype of a donation, the unrecompensed transfer of ownership of a corporeal object: the fact that the transfer was intended to be a gift provided the iusta causa traditionis necessary to effect such transfer and to justify the resulting enrichment of the transferee. To a certain extent one can compare the Roman concept of donation to that of mutuum (or commodatum). In both cases the agreement of the parties {unless it was clothed in the form of a stipulation) did not give rise to an action. Only once the capital sum/object had been handed over did the transaction become legally effective. But, whereas in the case of mutuum the factual handing over brought about a contractual relationship on account of which the lender was able to bring the actio certae creditae pecuniae and thus to claim back an equivalent amount, the effects of a transfer donandi causa were more limited. An action to reclaim was of course, not needed, for what is given by way of donation is intended to vest permanently in the recipient. Hence (in contrast to commodatum or depositum) there was neither need nor basis for a contrarium iudicium either. All that was necessary was to secure the donee's position, and that was exactly what the causa donandi was designed to achieve.

The classical law of donation thus offers a fine example of the very economical way in which the Roman lawyers developed their law. They did not set about designing grand new schemes of contractual liability, but contented themselves, in truly pragmatic fashion, with providing those adjustments and refinements that were indispensable to make the existing system work. More specifically, individual types of contract were recognized only where there was a specific need to do so.:

23

(c) The prevailing attitude towards donations

If we look at the classical sources handed down to us, we find the Roman lawyers discussing the various incidents of a donation mainly in

the corre s pon din g will of the done e to re ce ive the gift . Of cou rse , it w as p artic ularl y the forme r that was of vital imp ortance for a don ation and w as the re fore usually e mph asiz e d. But n ob od y h ad t o a cce pt s o me b o d y e lse 's gifts a ga in st his will: " no n pote st H be ralit as nole nti a d qui ri " ( U l p. D . 39. 5, 19, 2) ; c f. f urt he r l a v. D . 44, 7, 55 a nd H o nse ll/M a ye r - M aly/Sclb, p. 345.

23 For a crisp and cle ar ac count of the de ve lopme nt, se e Watson, E volu tion, pp. 6 sqq.

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the context of two rules restricting this sort of transaction: the lex Cincia de donis et muneribus and the prohibition of donations between husband and wife. Both these restrictions as such, as well as the fact that they provided the focal point for analysing the essential elements of a gift, reveal something about the general attitude of the Romans towards the transfer of unrecompensed benefits. Practical and somewhat matter of fact, they tended to be unimpressed by the fagade of unselfish liberalitas and generosity and looked with scepticism rather than with sympathetic feelings upon those who disregarded the precepts of commercial prudence to such an extent that they did not secure some consideration for their performance.24 The bonus vir did not squander his assets but tried his best to preserve them for himself and his familia. Where he did not do so, the inference could be drawn that something might in fact be wrong.

3.The lex Cincia de muneribus

(a)Purpose and background of the enactment

The lex Cincia was a plebiscitum dating from 204 B.C.25 It prohibited gifts26 exceeding a certain value, the exact amount of which is unknown to us.27 Only relatives down to the fifth degree, a number of in-laws and step-relatives, persons engaged to marry, slaves in the donor's power or former slaves released by him, and certain other personae exceptae28 were allowed to receive larger donations. What was the purpose of this enactment? In 204 the second Punic war was drawing to a close. Agriculture and economy were devastated, and thus the lex Cincia, attempting to restrain conspicuous expenditure, may have been part of an austerity programme.29 But it is difficult to see how one can

24 Eberhard F. Bruck, Uber Romisches Recht im Rahtnen der Kulturgeschichte (1954), pp. 121 sqq. But see also Wolfgang Kunkel, (1955) 72 ZSS 478, who draws attention to the fact that munificentia and liberalitas were highly rated virtues amongst the aristocracy during the later Republic and Principate. But they were often rather ostentatiously displayed and became an object of political calculation.

Livius, Ah urbe condita, Lib. XXXIV, IV, 9. Cf. generally vat. 250 sqq. and for the discussion of all details, Archi, op. cit., note 10, pp. 13 sqq., 145 sqq. and Franco Casavola, Lex Cincia (I960), passim. Cf also, more recently, Amparo Gonzalez, "The Possible

Motivation of the Lex Cincia de donis et muneribus", (1987) 34 RIDA 161 sqq.

2(< The lex Cincia applied not only to dona but also to munera. On the latter cf. Marci. D. 50, 16, 214: "Munus proprie est, quod necessarie obimus lege more imperiove eius, qui iubendi habet potestatem"; as to the former, cf. Pap. D. 50, 17, 82: "Donari videtur, quod nullo iure cogente concedkur." Ulpian (D. 50, 16, 194) explains the difference in the following way: "Inter donum et munus hoc interest, quod inter genus ct speciem: nam genus esse donum Labeo a donando dictum, munus speciem: nam munus essc donum cum causa, ut puta natalicium [birthday present], nuptalicium [marriage present]."

Advocates were not allowed to receive any gifts at all; cf. e.g. Tacitus, Annales, Lib. XI, 5, 3 (". . . ne quis ob causam orandam pecuniam donumve accipiat"); Casavola, op. cit., note 25, pp. 15 sqq.; Gonzalez, (1987) 34 RIDA 167 sqq. (who regards this part of the lex as the most important from a social and political point of view).

28Vat. 298-309.

29Cf. e.g. Casavola, op. cit., note 25, pp. 19 sqq.

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either boost the economy or restrain luxurious living by prohibiting large gifts. Yet, in a more indirect way, the lex Cincia did possibly fit into the general policy pursued by a whole host of leges sumptuariae:30 for what worried the legislator may well have been the fact that sumptuous gifts allowed those families which had been able, in the course of these turbulent times, to accumulate considerable wealth, to corrupt the electorate or recruit a large clientele and thus to "buy" political influence.

But there is an even more convincing alternative explanation for the lex Cincia.31 It has this in common with the suggestion advanced above, that the possible abuse of an influential position raised doubts about the motives behind large-scale gifts. We have seen that "one" did not render services for an agreed-upon, enforceable reward.32 The admired posture, as far as the upper echelons of society were concerned, was that of the generous friend and counsel.33 Acceptance of payment was regarded as demeaning. Acceptance of a voluntary honorarium, on the other hand, was not; and one is perhaps not wrong in surmising that powerful and well-to-do members of the establishment knew ways and means to make the socially and economically less privileged recipients of their personal services, their help and advice and their patronal protection show their gratitude by offering "presents" of considerable value. The lex Cincia may well have been a move to curb extortionary abuses of this kind.

(b) The application of the lex Cincia

But whatever its background, the Roman lawyers (coming from the influential circles of society themselves) did not enforce its provisions with much vigour. The statute was "imperfecta". It did not contain a criminal sanction;34 neither did it render {nor was it interpreted to render) donations in excess of the ceiling void. Its implementation was left to the praetor, and he was only prepared to grant an exceptio (legis Cinciae) which the donor could raise if he was sued for payment.35 That limited the effect of the lex Cincia to situations where enforcement of an unperformed promise of a gift was sought; once the donation had been executed, it could no longer be attacked. Hence it was crucial to decide for each individual type of donation, when and under which

30Wieacker, Vom romischen Recht, pp. 62 sq. On the leges sumptuariae cf. further Norr,

Rechtskrilik, pp. 73 sqq.

31Cf. especially Archi, op. cit., note 10, pp. 21 sq.; along similar lines cf. also Gonzalez, (1987) 34 RIDA 167 sqq.

32Cf. supra, pp. 388 sqq., 413, 415 sqq.

33Dawson, op. cit., note 5, p. 13.

34Exception: advocates accepting a gift (cf. supra, note 27) were liable, according to an enactment by Augustus, to pay a penalty of quadruplum: Cassius Dio, Historia Romana, LIV,

18 2; Casavola, op. cit., note 25, pp. 16 sqq.

5 Lenel, EP, p. 513; for details cf. Wolf, Causa stipulationis, pp. 136 sqq.; Behrends, Fraus legis, pp. 19 sqq.

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circumstances the transaction was complete (perfecta). A considerable body of literature dealt with this question, and it came to be established, for instance, that release from a debt, granted animo donandi, became unassailable with acceptilatio.36 Concerning the donation of a corporeal object, Paulus drew a distinction:

"Sed in persona non excepti sola mancipatio vel promissio non perficit donationem. in rebus mobilibus ctiamsi traditae sine, exigitur, ut et interdicto utrubi superior sit is cui donata est, sive mancipi mancipata sit sive nee mancipi tradita."37

Besides promissio or (where appropriate) mancipatio, the actual handing over of the object (traditio) was required for perfection; as far as movables were concerned, perfection also depended on whether the donor was still able to bring the interdictum utrubi against the donee. It has to be borne in mind, however, that perfectio donationis entailed only the exclusion of any remedies under the lex Cincia; more particularly, the praetor did not grant an in integrum restitutio. But the donor was still able to reclaim what he had given by way of the condictio indebiti:

"Indebitum solutum acdpimus non solum si omnino non debebatur sed et si per aliquam exceptioncm peti non poterat, id est perpetuam exceptioncm; quare hoc quoque repcti potcrit, si quis pcrpetua exceptione tutus solvent."11*

§ 813 I 1 BGB expresses the same principle in these words:

"What was done with the object of fulfilling an obligation may be demanded back even if there was a defense to the claim whereby the enforcement of the claim was permanently barred."

Of course, such an unjustified enrichment claim was available only where the donor had performed without being aware that the donee's claim was barred peremptorily by the exceptio legis Cinciae.

In the course of the classical period, the lex Cincia came to be regarded as outmoded. First, the exceptio was reduced to a purely personal privilege that terminated with the donor's death ("morte Cincia removetur") and that could not be exercised by his heirs.39 The donor himself, after all, had not changed his mind, and his perseverantia voluntatis40 was to be respected. In post-classical times, the lex Cincia soon fell into disuse.41

4.The prohibition of donationes inter virum et uxorem

(a)Origin and purpose of the prohibition

The second of the above-mentioned restrictions of donations had a

36Cf. Ulp. D. 39, 5, 17.

37Paul. vat. 311.

38Ulp. vat. 266 (cf. also Ulp. D. 12, 6, 26, 3); Schwarz, Condictio, pp. 31 sqq.

39Pap. vat. 259; 266; 278; Heinrich Siber, "Confirmatio donationis", (1933) 53 ZSS 141

sqq.; Archi, op. cit., note 10, pp. 175 sqq.

1 Cf. generally Jean Gaudemet, "Perseverantia voluntatis", in: Melanges Philippe Meylan, vol.

I (1963), pp. 139 sqq. 41 Kaser, RPr II, p. 399.

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much longer life; in South Africa it was not abolished until 1984, when the new Matrimonial Property Act42 came into effect. Section 22 thereof provides that "no transaction . . . is void or voidable merely because it amounts to a donation between spouses". The somewhat "belated eradication of this anachronism"43 was generally greeted with relief. Why had it ever been introduced?44

The first references to the prohibition of donations between spouses in legal writings that have come down to us date from the time of Augustus;45 and, indeed, it fitted in with the Augustan marriage laws.46 It will be recalled that Augustus was determined to stop the alarming decline of morality and family life that had set in, particularly amongst the upper classes. On the one hand, he therefore tried to promote marriage and the procreation of issue; on the other hand, he prohibited marriages between free-born citizens and certain women of evil reputation. One of the means of achieving these ends was the imposition of social and economic disadvantages, particularly in the form of severe restrictions on the capacity of those living in a prohibited marriage, or as a childless couple, to take under a will. The spouses must have tried to evade these restrictions by making donations inter vivos, and the prohibition of donations between spouses thus served a useful function in supporting the policies of the leges Iulia de maritandis ordinibus and Papia Poppaea. But it did not originate in this context.47 "Moribus apud nos receptum est", said Massurius Sabinus;48 the prohibition was based on the mores maiorum and probably goes back as far as the first half of the 2nd century в.с.49 The explanation usually advanced is "ne mutuo amore invicem spoliarentur donationibus non temperantes, sed profusa erga se facilitate".50 Love makes people do

42Act 88/1984.

43June Sinclair, An Introduction to the Matrimonial Property Act 1984 (1984), p. 42.

44For a thorough analysis of the sources, c{. especially Karlhcinz Misera, "Die Zcugnisse zum Grund des Schenkungsverbots unter Ehegatten", in: Festschrift fur Max Kaser (1976), pp. 407 sqq.; cf. also Archi, op. cit., note 10, pp. 195 sqq. and Lothar Holzapfel, Ehegattenschenkungen und Gltiubigerschutz (1979), pp. 69 sqq. Holzapfel (pp. 65 sqq.) draws attention to the protection of creditors resulting from (rather than providing the original rationale of) the prohibition.

45Treb./Lab. D. 24, 1, 64; Lab. D. 24, 1, 65 and 67; Alf. D. 24, 1, 35.

46Kaser, RPr I, p. 331; Misera, Bereicherungsgedanke, pp. 237 sqq.; cf. also Alan Watson,

The Law of Property in the Later Roman Republic (1968), pp. 229 sqq.

47As has been argued, for instance, by Mario Lauria, "II divieto delle donazioni fra coniugi", in: Studi in memoria di Aldo Albertoni, vol. II (1937), pp. 513 sqq.; Archi, op. cit.,

note 10, pp. 195 sqq.

4K As quoted (probably) by Ulpianus in D. 24, 1, 1.

49 Cf, in particular, Franz Wieacker, "Hausgenosscnschaft und Erbeinsetzung", in:

Festschrift der Leipzigcr Juristenfakuttat fur Heinrich Siher, vol. I (1941), pp. 45 sqq.; Misera,

Festschrift Kaser, p. 420; both hint at a connection with the leges sumptuariae, esp. the lex Voconia (about 169 B.C., designed, inter alia, to restrain the luxury of women inheriting big patrimonies, cf. e.g. Kaser, RPr I, p. 684). The prohibition can, of course, have originated

only in the context of free marriage (i.e. without conventio in manum). 5tiUlp. D. 24, 1, 1.

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many strange things. It may lead to a serious impairment of the lover's ability to behave rationally. More particularly, the spouses may be induced by marital affection to indulge in the most extravagant acts of liberality. As a result, amor alterius may despoil (usually) the husband of his fortune—and may thus lead to a rationally and economically unjustifiable shift of assets from one family to the other. That was, however, not desirable: the preservation of family fortunes was in general a priority of Roman policy.51

It was from this perspective that the prohibition of donations between spouses was usually applied.52 Pomponius D. 24, 1, 31, 7 provides an interesting testimony for a teleological restriction of the rule:

"Quod legaturus mihi aut hereditatis nomine relicturus es, potes rogatus a me uxori meae relinquere et non videtur ea esse donatio, quia nihil ex bonis meis deminuitur: in quo maxime maiores donanti succurrisse Proculus ait, ne amore alterius alter despoliaretur, non quasi malivolos, ne alter locupletior fieret."

A is about to grant a legacy to B, or even to institute him as his heir. В asks A to leave what was supposed to pass to him to his (B's) wife, and A complies with this request. Are we dealing here with a (prohibited) donatio inter virum et uxorem? The answer is no. The prohibition does not exist in order to prevent one of the spouses (the donee) from becoming richer. It wants to protect the family fortune of the donor from being squandered due to the follies of love. Where there is no impoverishment on the part of the donor, this rationale does not apply. This is the case, for instance, in our example where what the wife will one day acquire has never been part of her husband's assets.53 The conception of a donation was thus restricted to transactions which had two effects at the same time: an increase in the patrimonium owned by one of the spouses54 and a corresponding diminution of that of the other.55 This antithesis of pauperior-locupletior was the cornerstone for the application of the prohibition of donations between spouses56

51 Cf. e.g. Misera, Festschrift Kaser, pp. 419 sq.; Holzapfel, op. cit., note 44, pp. 76 sqq. This is also the reason why the prohibition did not apply only between the spouses themselves but between all the persons belonging to their two family units: cf. Ulp. D. 24, 1, 3, 2-8; Ulp. D. 24, 1, 32, 16-21.

Hence, for instance, the rendering of gratuitous services to each other or the use or occupancy by one spouse of servants, lands or other assets belonging to the other were not prohibited; cf. infra, note 69.

53Cf. also Ulp. D. 24, 1, 5, 13; 14.

54For an example of a donation which was regarded as valid because the receiving spouse was left in the end with no net gain, see Ulp. D. 24, 1, 5, 8 (donatio sepulturae causa; discussed by Misera, Bereicherungsgedanke, pp. 15 sqq.).

55The donor could not recover more than the value by which he was impoverished. Cf., for example, Paul. D. 24, 1, 28, 3 {in fine): If a husband gives his wife 10 and she uses it to buy a slave worth 15, recovery could only be for 10. (On the other hand, if the wife bought a slave worth 5, she would be liable only for 5 (this being the sum by which she was ultimately enriched).)

56For a detailed analysis, see Misera, Bereicherungsgedanke, pp. 6 sqq.; Archi, op. cit., note 10, pp. 75 sqq.

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and, in the course of time, it became one of the essential and characteristic features for donations in general.57

(b) Purity of marriage

During the classical period, the prohibition was frequently seen in a different light. ". . . ne cesset eis studium liberos potius educendi", says Paulus,58 and he adds:

"Sextus Caecilius et iltam causam adidebat, quia saepe futurum esset, ut discuterentur matrimonia, si non donaret is qui posset, atque ea ratione cventurum, ut venalicia essent matrimonia."

This is the moralizing tone and tendency that had gained ground in the regulation of family affairs with the great Augustan reform legislation; it also dominates the oratio Severi that has come down to us in D. 24, 1, 3pr.:

". . . [m]aiores nostri inter virum et uxorem donationes prohibuerunt, amorem honestum solis animis aestimantes, famae etiam coniunctorum consulentes, ne concordia pretio conciliari viderentur neve melior in paupertatem incideret, deterior ditior fieret."

At the core of the argument there is the ideal image of the purity of marriage. The prohibition of donations between spouses serves to preserve it. For marriage must be based solely on "maritalis honor et affectio";59 procreation and the education of children has to be its principal aim. But for the prohibition, the conclusion of marriages might be dependent on calculations of economic advantage, and marriages might in the end become venal; but for the prohibition, the spouses might well be out to get donations from each other and thus neglect their duty to bring up children. But for the prohibition, finally, divorces would be a frequent and undesirable consequence of the fact that one of the spouses proved to be less generous than expected.60 Occasionally these moralizing views found their reflection in the application of the law; thus, for instance, the prohibition was not extended to cover donations to a concubine, "quia non erat affectione uxoris habita, sed magis concubinae".61

A further interesting reason for the prohibition of donationes inter vivum et uxorem, incidentally, was advanced by Plutarch.62 In his view spouses should share all their wealth with each other. Donations between spouses would conflict with this ideal in so far as, by giving

3 7 E mph asiz e d b y D a ws on, o p. cit . , note 5, pp. 1 5 sqq. an d pa ssim. 5H D. 24, 1, 2.

5 y Pap. D . 39, 5, 31 pr.; cf. Kas cr, R Pr I, p. 321.

60 T he d i v o r c e r a t e s o a r e d t o w a r d s t h e e n d o f t h e R e p u b l i c , a f a c t w h i c h m a y h a v e influenced the perception and application of the prohibition (Misera, Festschrift Kaser, p. 425). The prohibition did not, howe ve r, originate as a re action to the divorce proble m ( as Wile ns,

Over Schenkingen tusschen Edttgenooten in het Romeinsche Recht (1934), pp. 9 sqq., 90 sqq. and others will have it).

61Ulp. D. 24, 1, 3, 1.

62Quaestiones Rotnanae, VII and VIII; Misera, Festschrift Kaser, pp. 415 sq.

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each other some part of their patrimony as a gift, they would at the same time implicitly exclude each other from the remainder.

(c) The application of the prohibition

Unlike the lex Cincia, the prohibition of donations between spouses was vigorously enforced. Infringement entailed invalidity.63 The donor of a corporeal object remained its owner and could therefore vindicate it.64 However, the rule was subject to certain exceptions. Donations between spouses were valid where they were designed to provide maintenance or where the donor acted in compliance with a moral duty or with what was demanded by common decency.65 These exceptions were not in conflict with whatever one considered to be the rationale of the prohibition. Furthermore, as in the case of the lex Cincia, the perseverantia voluntatis was respected; if the donor died without having revoked the donation, it became valid.66 Donations mortis67 or divortii causa68 were valid too, for at the time when the transaction became effective, the marriage had, sadly, come to an end. Donations of this kind were normally intended to secure the wife's maintenance; even though they did lead to a transfer of assets between the families of the spouses as a consequence of the marriage, such transfer did not occur while the marriage lasted, and it did not endanger the moral foundations and ultimate goals of that institution, at least not to the same extent as normal donationes.

In actual practice, the prohibition never succeeded in suppressing donations between spouses.69 This is reflected in the great number of

3 For details, sec Misera, Bereichemngsverbot, pp. 84 sqq.

64 Ulp. D. 24, 1, 5, 18; Paul. D. 24, 1. 36 pr.; if the object had been consumed or destroyed, its value could be recovered, but only to the extent that the donee was still

enriched. Cf. Misera, Bereichentngsgedanke, pp. 84 sqq.

65 Cf. e.g. Ulp. D. 24, 1, 21 pr.; Pomp. D. 24, 1, 29, 1; Pomp. D. 24, 1, 31, 8.

ы- Ulp. D. 24, 1, 32 pr.-2; Pap. vat. 294, 2: С 5, 16, 1 and 3 (both Ant.); Siber, (1933)

53 ZSS 103 sqq.; Archi, op. at., note 10, pp. 219 sqq.

67 Ulp. D. 24, 1, 9, 2; Gai. D. 24, 1, 10; Pap. D. 39, 6, 40.

('H Ulp. D- 24, 1, 11, 11; Hermog. ID. 24, 1, 60, 1. The divorce must be imminent: Paul. D. 24, 1,12. "If. . . the gift is made vaguely in contemplation of a possible divorce . . . the donation is void1' (Van Schalkwyk v. Van Schalkwyk 1947 (4) SA 86 (O) at 96-7).

m Misera, Festschrift Kaser, p. 433. The same author draws attention to the fact that, where a donation has in fact been made, the obligation to return or to make good the value is excluded where the recipient is no longer enriched. That shows that in actual practice the spouses were to a certain extent seen to be sharing in each other's assets. The same appears from the fact that where one spouse was permitted to use clothes or slaves, or to live in a house belonging to the other, this was not regarded as an infringement of the prohibition of donations between spouses. Cf. Pomp. D. 24, 1, IS: "Si vir uxoris aut uxor viri servis aut vestimentis usus vel usa fuerit vel in aedibus ems gratis habitaverit, valet donatio."

This text raises intricate problems. Does it imply that habitatio gratuita was, after all, regarded as donation (rather than commodatum; cf. supra, p. 191)? Slapnicar, op. cit., note 18, pp. 103 sqq., disputes that and translates "valet donatio" with: "it is to be treated as a donation" (rather than "the donation is valid"). He argues that while habitatio gratuita was commodatum, certain rules relating to donations were applied per analogiam (Pomp. D. 39, 5, 9 pr. as to the lex Cincia; Pomp. D. 24, 1, 18 as to the prohibition of donations between spouses). Thus he comes to the conclusion that even though the transaction was not

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cases contained in D. 24, 1 as well as in some of the exceptions which the jurists obviously felt compelled to admit. In many instances the spouses tried to disguise their donations and concluded, for example, a contract of sale at a low price. Generally speaking, nothing could be said against donations in disguise as long as the price, albeit a very low one, was meant seriously.70 The validity of a sale, after all, did not depend on a iustum pretium. Between spouses, however, such transactions could not be tolerated, for this would have led to an erosion of the prohibition of donations. Thus, "inter virum et uxorem donationis causa venditio facta pretio viliore nullius momenti est".71 Could one avoid this harsh consequence (invalidity of the whole transaction) at least in cases where the husband/vendor had the intention to sell (animus vendendi)? Neratius proposed the following solution:

"[ait] venditionem donationis causa inter virum et uxorem factam nullius esse momenti, si modo, cum animum maritus vendendi non haberet, idcirco venditionem commentus sit, ut donaret: enimvero si, cum animum vendendi haberet, ex pretio ei rcmisit, venditionem quidem valcre, remissionem autem hactenus non valere, quatenus facta est locupletior: itaque si res quindecim venit quinquc, nunc autem sit decem, quinque tantum praestanda sunt, quia in hoc locupletior videtur facta."72

His answer was partial invalidity, based on a fictitious splitting up of the transaction. On the one hand, there was a (valid) contract of sale (for the whole sum), on the other hand an agreement to grant a remission of part of the price owed, and this latter agreement was invalid in so far as it had enriched the wife. According to utile per inutile non vitiatur, the invalidity would be confined to whatever of the remissio mercedis constituted a donation in terms of the pauperior— locupletior rule. Consequence: the wife would have to pay the difference between what she had originally agreed to pay and the true value (at the time of litis contestatio, not at the time the contract had

donation, it was invalid. But his view is unconvincing (cf e.g. Knutel, (1984) 184 Archiv fur die civilistische Praxis 190). The prevailing opinion is that even though the transaction was a donation, it was valid. Cf. e.g. Karlheinz Misera, "Gebrauchsuberlassung und Schenkung unter Ehegatten", (1972) 3 Index 397 sqq. The solution seems to be that Pomponius is using the term "donatio" in D. 24, 1, 19 in a wide and untechnical sense. Here, as in so many other cases, one should not rashly assume that the Romans used and developed a fixed and technical terminology. In this particular instance, the Roman lawyers generally seem to have used a dual terminology: sometimes we find them referring to a particular transaction as a donation, and then stating that a particular rule did, nevertheless, not apply to it; on other occasions they (more narrowly) used the term "donatio" only to refer to those transactions that fitted into the framework of this particular rule. See Hugo Burckhard, Zum Begriff der Schenkung (1899), pp. 15 sqq.; Misera, Bereicherungsgedanke, pp. 161 sqq.

70 Ulp. D. 18, 1, 38: "Si quis donationis causa minons vendat, venditio valet. . . ." On verum pretium, see supra, p. 252.

Ulp. D. 18, 1, 38 in fine. Cf. generally Karlheinz Misera, "Der Frcundeskauf unter Ehegatten im romischen Recht", in: Rechtswissenschaft und Gesetzgebung, Festschrift fur Hduard Wahl (1973), pp. 25 sqq.; Broise, op. cit., note 15, pp. 119 sqq.

72 Ner./Ulp. D. 24, 1, 5, 5 (genuine; see Misera, Bereicherungsgedanke, pp. 120 sqq.; idem,

Festschrift Wahl, pp. 34 sqq.)

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been concluded) of the slave. Thus, if a slave that was worth 15 had been "sold" for 5, but had in the meantime decreased in value (to 10), the wife would have to pay another 5. This was an ingenious argument, but it did not prevail. Most Roman lawyers opted for the invalidity of the whole transaction.73 The main reason for their rejection of Neratius' solution seems to have been that he effectively made the wife pay more than she had ever agreed to. Such imposition of an obligation would have been in conflict with the Roman notions of liberty and private autonomy.74

In post-classical times, the prohibition of donations between spouses became more and more unpopular.75 In the West it gradually disappeared; in the East, however, it continued to exist. It was received in continental Europe and became part and parcel of the ius commune.76 In some countries there were customs to the contrary, in others further exceptions came to be recognized.77 In Germany it was abolished only by the BGB. In South Africa a refined set of rules, based on the writings of the ius commune and amplified by a whole variety of court decisions, still existed until recently.78

5.The law of donation under Constantine

(a)Promotion of acts of generosity

To recapitulate: classical law did not look at donations as a special type of transaction; it merely recognized them in so far as they could provide a causa for various types of disposition such as stipulationes, mancipationes, in iure cessiones or traditiones. A donation could also be the basis for the acquisition of ownership by way of usucapio or longi temporis praescriptio. It was Constantine who went one important step further towards the "emancipation" of donations. He was favourably disposed towards such acts of liberality79 and himself

73Cf. Ulp. D. 18, 1, 38; Afr. D. 16, 1, 17 pr.; Pap. D. 24, 1, 52 pr.

74H ans He rm an n Se ile r, "U tile pe r inutile non vitiatu r ", i n: Fe stsc h rift fu r Ma x Ka se r

(1976), p. 139; Zimme rmann, Moderationsrecht, p. 129; differe ntly, Misera, Festschrift Wahl,

pp. 40 sqq., according to whom Neratius based his decision on the lack of a certum pretium.

75 Kaser, RPr I I , p. 172.

76Coing, p. 240; Windscheid/Kipp, § 509.

77Cf. e.g. Stryk, Usus modernus pandectarum. Lib. XXIV, Tit. I, § 6 with regard to "donationes . . . tempore nativitatis Christi" and "die natali donatio modica"; Huber, Praelectiones, Lib. XXIV, Tit. I, 4 ("Hinc etiam munera, quae sum modicae praestationes

escutentorum, potulemorum; vel strenae natalitiae aut novi anni, inter coniuges non prohibentur"). As far as remuneratory gifts are concerned, see, for instance, Brunnemann,

Comtnentarius in Pandectas, Lib. XXIV, Tit. I, ad L. Quod autem 7, 3; Voet, Commentarius ad

Pandectas, Lib. XXIV, Tit. I, X; Lib. XXXIX, Tit. V, XVII.

7H For details, seeH.R. Hahlo, The South African Law of Husband and Wife (4th ed., 1975), pp. 128 sqq. A variety of other modern legal systems have adopted the Roman prohibition of donations between spouses; see Holzapfel, op. cit,, note 44. pp. 99 sqq. for an overview.

79 On the rise of the term "liberalitas" in the imperial propaganda and on its meaning, cf. Armin U. Stylow, Libertas und Liberalitas (unpublished Dr. iur. thesis, Munchen, 1972), pp. 58 sqq.

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