!!Экзамен зачет 2023 год / The Law of Obligations

made large donations to, among many others, the poor and needy, to widows, soldiers and churches80 (even though he did not go so far as to donate Rome and the entire Occident to Pope Sylvester).81 His attitude was influenced by the teachings of Christianity,82 which was gradually gaining ground and which promoted acts of generosity and charitableness. Furthermore, post-classical practice was obviously no longer able to master the complexities of classical law. By the time of the 4th century A.D., the law relating to donations appeared to be riddled with difficulties. Two problems were particularly apparent. On the one hand, the implementation of the lex Cincia involved subtle distinctions between donationes perfectae and those that had not yet been completed (inchoatae); and shrewd advocates were able to sow confusion and uncertainty by raising intricate arguments and trying to give out donationes perfectae as imperfectae and imperfect ones as perfect.83 On the other hand, the classical donation did not represent a legal act sui generis, but was tied to a variety of other transactions, many of them formal ones. But these forms had by now been whittled

80Clemence Dupont, "Les donations dans les constitutions de Constantin", (1962) 9 RID A 314 sqq.; as to the contemporary practice in general, see Dupont, pp. 308 sqq.

81The famous "Const antini an Donation" provided the formal l egiti mation for the establishment of the Papal State; the document was drawn up by Roman clergymen in the second half of the 8th century. Constantine allegedly made the donation when he moved his residence from Rome to what came to be known as Constantinople (Byzantium, today Istanbul). The Catholic Church regarded the document as so important that every new Emperor (of the Holy Roman Empire of German Nation) had to confi rm it; whoever doubted its authenticity was regarded as a heretic. On all this, cf. Horst Fuhrmann, "Das fruhmittelalterliche Papsttum und die konstantinische Schenkung", in: (1973) 20 Settimane di studio del Centre Italiano di Studi mil' Alto Medioevo; D. Waley, The Papal State in the 13th century (1961); P. Partner, The Lands of St. Peter. The Papal State in the Middle Ages and the Early Renaissance (1972).

82Constantine had been acquai nted with the Christian religion from an earl y age. Amongst the servants of Diocletian's court (where he grew up) Christianity was widespread. Diocletian's wife and daughter inclined towards it, as did Constantine's own father, Constantius. Constantine was probably educated by Lactantius (one of the Fathers of the Church), who was a grammaticus (language instructor). One of Diocletian's co-emperors, Maximian, had a Christian wife (Eutropia); her daughter Theodora (also a Christian) became Constantius' wife (i.e. Constantine's step-mother; Constantine's mother was the famous concubine Helena). Their daughters (Constantine's step-sisters) received a Christian education. The decisive event regarding Constantine's attitude towards the Christian religion was, of course, the battle at the Milvian Bridge in Rome on 28 October 312 against the usurper Maxentius, and his famous vision preceding it. Constantine was baptized shortly before he died in 337. The new Christian ideas were bound to be reflected in Constantine's legislatorial activities. One of his (heathen) successors, Julianus Apostata, referred to him as "novator turbatorque priscarum legum" (Ammianus Marcellinus, Res gestae. Lib. XXI, 10,

8). Constantine's panegyrist Nazarius acknowledged the same, only from a different perspective: "Novae leges regendis moribus et frangendis vitiis constituiae. Veterum calumniosae ambages recisae captandae simplicitatis laqueos perdiderunt" (Nazarii Patiegyrius Const. Aug., XXXVIII). On Constantine as a Christian ruler cf. e.g. Ramsey MacMullen, Constantine (1987), pp. 101 sqq.; Avril Cameron, "Constantinus Christianus", (1983) 73JRS 184 sqq.

83 "Multas saepe natas ex donatione, causas cognavimus in quibus vel adumbrata pro expressis vel inchoata pro perfectis vel plurima pro omnibus controversiam faciant, cum agentium visa pro ingenio ac facultate dicendi aut perfecta deformarent aut inchoata perficerent": vat. 249, 1.

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down considerably, and all the uncertainties surrounding particularly the requirements for a valid stipulatio or for the transfer of ownership by way of mancipatio, were bound to affect both the law and the practice of donations too.84

Constantine therefore set out to simplify and streamline the law.85 He recognized donations as legal transactions in their own right, albeit in a peculiar way. For he did not conceive of donations as contracts in the classical sense: as legal acts which have the effect of bringing into existence one or several obligations. The mere informal promise to make a donation remained unenforceable. Donation was conceived by Constantine as a bilateral act that was immediately executed and that led to the instant transfer of ownership from the donor to the donee. Instead of being the causa of the transfer, it became one of its modes.86 This was in line with the general development of post-classical law away from the classical distinction between obligatory act and transfer of ownership. The contract of sale, too, was now, once again, regarded as a transaction that had to be concluded and executed at one and the same time, and that was no longer merely an obligatory act providing the causal basis for the transfer of ownership by way (usually) of traditio; it involved the transfer of ownership itself.87

(b) Formalities

If donations, under Constantine, were thus put on a par with the contract of sale as far as their legal effects were concerned, they were at the same time singled out in that a special form was required for their conclusion. Every donation had to be recorded in a document that had to be drawn up in front of witnesses and that had to contain the name of the donor, the designation of the gift and proof of the donor's title.88 Secondly, the gift had to be handed over "advocata vicinitate" (before witnesses drawn from the neighbourhood), and finally, official registration of the gift (insinuatio) had to be effected. Non-compliance entailed invalidity of the donation.89 These formalities were designed to avoid invidious and complex legal proceedings by facilitating proof and by preventing non-authorized persons from liberally disposing of somebody else's property. They do not seem to have been intro-

84Dietrich V. Simon, Konstantinisches Kaiserrecht (1977), pp. 92 sqq.

85For details, see vat. 249 (date: A.D . 323); furthe r Levy, Vulgar Law, pp. 138 sqq.; ide m,

Obligatiotten recht, pp. 236 sqq.; Archi, op. cit. , note 10, pp. 225 sqq.; Biondi, op. at., note 11, pp. 707 sqq. ; Kase r, R Pr II, pp. 280 sqq., 394 sqq. ; Simon, op. cit., note 84, pp. 84 sqq.

Le vy, Vulgar Law, p. 146.

87 Levy, Vulgar Law, pp. 127 sqq.; idem, "Verkauf und Ubereignung", (1963) 14 lura 19 sqq.; William M. Gordon, Studies in the Transfer of Property by Traditio (1970), pp. 63 sqq.; Kaser,

RPr II, pp. 276 sqq. Contra: Wulf Eckhart Voss, Recht und Rhetorik in den Kaisergesetzen der Spatantike (1982), pp. 131 sqq.

8K On this latter requirement cf. Gothofredus, ad CT 8, 12, 1: "Ius eius, id est, ex qua causa, quo titulo dominii rem earn quam donat habeat, ne forte rem alienam donet" (Simon, op. cit., note 84, p. 108),

H'' Cf. also e.g. Codex Theodosianus 8, 12, 3.

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duced for fiscal purposes,90 for donations as such were not subject to taxation.

While being inspired by a desire to favour and promote acts of generosity, Constantine's enactment also shows the new authoritarian tendency to regiment the actions of the individual. It was no longer left to the parties to protect themselves against the risks and vagaries of legal dealings, and to the classical Roman lawyers forms such as those prescribed in vat. 249 would have seemed to be in irreconcilable conflict with the prevailing notion of liberty.

(c) Donations and dispositions mortis causa

But there was a further side to the law of donations as it developed in the post-classical period. Gifts inter vivos and testamentary dispositions, both from a functional and from a conceptual point of view, became more and more closely related.91 Dispositions mortis causa, in West-Roman vulgar law, tended to be regarded as a particular species of donation,42 and even in the East they were referred to as donationes in a very broad sense of that term.93 Tertium comparationis, so to speak, was the donor's motive: normally either to provide for his family94 or to display generosity towards the Church or the Church-run charitable institutions.95 Redemption and salvation of the soul became a dominant concern for the growing number of Christians who pondered about the vanity of the world and the brevity of their lives, and soon it became an established custom96 to devote part of one's

90As is usually believed; cf. e.g. Archi, op. at., p. 236; Kaser, RPr II, p. 395. But see Simon, op. cit., note 84, pp. 116 sqq.

91For details, see Francisco Samper Polo, "La disposicion mortis causa en el dcrecho Romano vulgar", (1968) 38 AHDE 87 sqq.

92Codex Theodosianus 8, 17, 7.

93Pringsheim, "Liberalitas", in: Studi in memoria di Emiiio Albertario, vol. I (1953), p. 667.

94Cf. e.g. Dupont, (1962) 9 RID A 308 sqq.

95Generally called venerabiles domus. These include the xenodochia (locus venerabilis in quo peregrini susdpiuntur), ptochotrophia (in quo pauperes et infirmi homines pascuntur), nosotrophia (in quo aegroti homines curantur), orphanotrophia (in quo parentibus orbati pueri pascuntur); brephanotrophia (in quo infantes aluntur); gerontocomia (in quo pauperes et proptcr senectutem solam infirmi homines curantur). Cf. e.g. C. 1, 3, 45, 3 (for the definitions, see P.W. Duff, Personality in Roman Private Law (1938), p. 178). As to the establishment and administration of these so-called "piae causae", cf. Hans Rudolf Hagemann, Die Stelhtng der Piae Causae nack justinianischem Rechte (1953), pp. 42 sqq.; Kaser,

RPr II, p. 158. The history of the law of foundations can be traced back to them: cf Hans Liermann, Handbuch des Stiftungsreckts (1963), pp. 24 sqq. On the relief and welfare activities of the Church, based on Christian caritas, cf. generally Hagemann, pp. 5 sqq.; August Knecht, System desjustinianischen Kirchenvertnogensrechtes (1905), pp. 43 sqq.; also Gluck, vol. 39, pp. 448 sqq. Cf. further Eberhard F. Bruck, Kirchenvdter und soziales Erbrecht (1956), pp. 31 sqq., 37 sqq.; Duff, pp. 189 sqq.; C.P. Joubert, Die Stigting in die Romeins-Hollandse

Reg en die Suid-Ajrikaanse Reg (1951), pp. 29 sqq.

6 Cf. e.g. C. 1, 2, 25. The Greek Fathers of the Church had attempted to strike a compromise between the ideal of absolute poverty and the realities of a less perfect, secular (but none the less Christian) existence and postulated that part of the estate ought to be left to Christ (on behalf of the poor); for details, see Bruck, op. cit., note 95, pp. 1 sqq., 41 sqq., 55 sqq. Essential for these gifts pro animae redemptione was their voluntariness.

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patrimony "ad pias causas".97 The last will, of course, was a particularly suitable place to think of such gifts "pro animae remedio",98 and the lawyers tried their best to encourage, uphold and privilege bequests "ad pias causas".99 A substantial number of decisions have come down to us, and many of them apply to donationes inter vivos too.100 Gifts can obviously be used to anticipate testamentary dispositions;101 both types of transactions under these circumstances serve the same purpose. Both should therefore be approached from the same policy perspective.

6.Justinian and the law of donations

(a)Donation as a binding contract

Whether the Constantinian reform achieved its aim of simplifying and streamlining the law of donations is very doubtful. If old problems were solved, new practical difficulties102 and dogmatic obscurities were thrown up. One need only look at the cumbrous, contorted and largely untechnical language of this piece of legislation103 to appreciate that by the time of Justinian a need to clarify and restate the law relating to donations was evident again. Justinian,104 to a certain extent, revived the classical conception. He drew a distinction, once again, between the obligatory contract and the acts necessary to carry out the obligations

Accordingly, Justinian did not fix a quota either (but see his advice in Nov. 7, 2, 1: "u'piorov f p

9 On the meaning and interpretation of pia causa first in the East-Roman Empire, then (from the Middle Ages onwards) in continental Europe and in England (sub titulo "charitable purposes"), see Reinhard Zimmermann, "Cy-pres", in: Iuris Professio, Festgabe fur Max Kaser (1986), pp. 395 sqq.

98In the Middle Ages, the gift pro animae remedio was taken to be domina testamenti; the main function of the last will was to make provision for the salvation of the soul. Cf. generally Philippe Aries, Geschichte des Todes (1980), p. 233 sqq., 242 sqq; Bruck, op. cit., note 95, pp. 257 sqq.; Liermann, op. cit., note 95, pp. 106 sqq.; Alfred Schultze, "Der Einfluss der Kirche auf die Entwicklung des germanischen Erbrechts", (1914) 35 ZSS (GA) 75 sqq., 98 sqq. In England, too, dispositions ad pias causas were part of every testament; cf. Pollock and Maitland, vof. II, pp. 337 sqq.; Joseph Willard, "Illustrations of the Origin of Cy Pres", (1894) 8 Harvard LR 69 sqq.

99Cf. e.g. Andreas Tiraquelles, "De Privileges piae causae tractatus", in: Opera Omnia, vol. v. (Francofurti, 1574); Justus Henning Boehmer, [us Ecdesiasticum Protestantiutn (3rd ed., Halae Magdeburgicae, 1732), III, XXVI, §§ 19 sqq.

!"° Kaser, RPr II, p. 467.

101Archi, op. cit., note 10, p. 255.

102Constantine himself found it advisable Co admit certain exceptions from the new formal requirements he had devised (cf. Codex Theodosianus 8, 12, 5 (A.D. 332, concerning donationes inter liberos et parentes), Codex Theodosianus 3, 5, 3 (A .D . 330, concerning donationes ante nuptias)). To subject every occasional gift to public registration must have been entirely impracticable. Legal practice generally does not seem to have been much concerned about the official requirements: "It is striking to see how often the emperors took

occasion to insist on Constantine's requirements." On all this, see Levy, Vulgar Law, pp. 140 sqq. As far as the traditio requirement is concerned, cf. Gordon, op. cit., note 87, pp. 68 sqq.

Analysed in detail by Simon, op. cit., note 84, pp. 86 sqq.

104 Levy, Vulgar Law, pp. 152 sq.; Archi, op. cit., note 10, pp. 272 sqq.; Kaser, RPr II, pp. 396 sqq.

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that had arisen.105 As far as the gift of a corporeal object was concerned, this meant that the donation provided a iusta causa for the transfer of ownership. Furthermore, the promise of a gift became binding and enforceable again. Such a promise, however, no longer had to be clothed in the form of a stipulation; a mere, informal agreement between the parties was sufficient.106 Using the conceptual material of classical and post-classical law, Justinian had thus managed to create something new: donation as a binding contract107 in its own right. As under Constantine, therefore, donation was conceived of as an independent type of transaction; but, as under classical law, the structure of this transaction was that of an executory contract.

There was one further element which Justinian took over from the Constantinian legislation: the requirement of public registration of the gift. Again, however, he introduced modifications. One of them followed from Justinian's changed perception of donation, for insinuatio could no longer be confined to executed gifts, but was extended to the newly enforceable informal executory contract of donation. The main trend evident in Justinian's legislation, however, was towards relaxation of this form of public control over gift transactions. Donations had to be registered only if the value of the gift exceeded 300,108 later 500, solidi.109 This was a very considerable sum: the solidus was a coin containing 4,55 grams of fine gold, and the quantity of gold that made up 500 solidi would have sold in June 1986 for 58 334 German Marks (to take a relatively stable currency).110 Certain gifts were even exempted from registration, irrespective of the amount involved: those that had been made pro redemptione ab hostibus111 or for the purpose of reconstructing houses that had burnt down or collapsed,112 or gifts to the Emperor,113 to mention some examples.

105Cf. generally Kaser, RPr II, pp. 282 sqq. As far as donations are concerned, cf. e. g. C. 8, 53, 35, 5 b (". . . non ex hoc inutilis sit donatio, quod res non traditae sunt, nee confirmetur ex traditione donatio") and Inst. II, 7, 2 (". . . et ad exemplum venditionis nostra constitutio eas etiam in se habere necessitatem traditionis voluit, ut, et si non tradantur, habeant plenissimum et perfectum robur et traditionis necessitas incumbat donatori").

106Cf. e.g. Inst, II, 7, 2: "[PJerfiriuntur autem [donationes], cum donator suam

voluntatem scriptis aut sine scriptis manifestaverit."

11(1 Certain provincial governors earned 300 solidi a year (of which 40-50 had to be passed on): Nov. 24-26.

C. 8, 53, 36 pr. On redemptio ab hostibus in classical law, see Kaser, RPr I, p. 291; in post-classical times, see Knecht, pp. 105 sqq.; Ernst Levy, "Captivus redemptus", in: Gesammelte Schrijten, vol. II (1963), pp. 40 sqq.; generally Adalbert Erler, Der Loskauf Gefangener. Ein Rechtsproblem sett drei Jahrtausenden (1978). Usually, one was dealing with the redemption of Christian prisoners who had fallen into heathen hands; in a wide sense of the term, the donor was thus promoting pia causa; hence the favourable treatment of the donation.

112C. 8, 53, 36, 2.

113Nov. 52, 2. As to gifts made by the Emperor, c(. C. 8, 53, 34, 1 a (and the case of

Prince William of Orange, who promised to pay to "faeminae illustri" an annuity of 4 000 florins, as reported by Van Bynkershoek, Observations Tumultuariae, nn. 260, 1870).

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(b) Enter the cheerful giver

It is obvious that Justinian was very much inclined to favour acts of liberality and to promote generosity, and it is equally clear that this attitude found its basis in the teachings of Christianity. " . . . humanitas, per quam solam dei servatur imitatio"114 was the general guideline for the application and reform of the law of donation. This is apparent, too, from the wide meaning given to the term "donation"115 and from the fact that the motive for conferring the benefit became its dominant characteristic. The classical lawyers had referred to the animus donandi, but for them it was one of several attributes of a donation. In postclassical law the intention of the donor to donate had emerged as the essential feature establishing this type of transaction and distinguishing it from any other.1Kl Justinian went yet one step further. Amending a statement by Iulianus, he inserted the following definition of donation into the Digest:

"[D]at aliquis ca mente, ut statim velit accipicntis fieri nee ullo casu ad se reverti, et proptcr nullam aliam causam facit, quam ut liberalitatem et munificentiam exerceat: haec proprie donatio appellatur."117

This text emphasizes the donor's noble spirit: he must have been moved by the desire to perform an unselfish act of liberality and must not have entered into the transaction for any egoistic motives. Here we see

114С 5, 16, 27, 1.

115For details, see Kaser, RPr II, p. 398; Pringsheim, Studi Albertario, vol. I, pp. 667 sqq. Levy, Obligationenrecht, p. 240 refers to an "inflation" of the concept of donatio. The term "donation" was now also used to cover pollicitationes. Cf. e.g. Ulp. D. 39, 5, 19 pr. Both had been kept separate in classical law. A pollicitatio was the promise of a gift of money or of the performance of work (e.g. to build a monument) which a citizen made to his municipality, usually on the occasion of his candidacy for a municipal office or for a priesthood ("ob honorem"). Such a promise was binding and actionable in the cogmtio extra ordinem, even though it was based on a unilateral, informal declaration. For details, see D. 50, 12 and Archi, op. cit., note 10, pp. 28 sqq.; Biondi, op. cit., note 11, pp. 677 sqq.; Pringsheim, Studi Albertario, vol. I, pp. 672 sqq.; cf. also T.B. Smith, "Pollicitatio— Promise and Offer", in: Studies Critical and Comparative (1962), pp. 168 sqq. Furthermore, "suffragium" had, in the course of the 4th century, come to be regarded as a variety of donation and was subjected to the formal requirements laid down in vat. 249 (Codex Theodosianus 2, 29, 2). Suffragium was the promise of a reward in order to obtain a public office; it provides a remarkable testimony to the corruption rampant during this period. If the donor obtained the office, he was bound to honour his promise. Nor could he claim back what he had given in advance. Cf. Levy, Vulgar Law, pp. 169 sq.; idem, Obligationenrecht, pp. 248 sq.; Claude Collot, "La pratique et l'institution du suffragium au Bas-Empire", (1965) 43 RH 185 sqq.

"" Pringsheim, (1921) 42 ZSS 273 sqq. (but see supra, note 15); Bruck, op. cit., note 24, pp. 134 sqq.

"' D. 39, 5, 1 pr. (generally held to be interpolated from "et propter" to "exercat"): Kaser, RPr I I , p. 398.

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Paulus' (the Apostle Paulus') cheerful giver,118 after having penetrated the ethical and religious postulates of the Greek Fathers of the Church,119 entering into the legal arena. There he was to set out on a

long journey through much of the medieval and the modern law of donation;120 for D. 39, 5, 1 pr. appeared at the outset of the title "De

donationibus" and was too prominently placed to be able to be overlooked.

Pure altruism and unselfishness, of course, are much to be admired, but, regrettably, are rare in legal dealings. Human nature being what it is, "it is much more common for altruism to be somewhat impure",121 and Justinian's infusion of contemporary Christian ethics into the law was to throw up problems; purity of motive is an unhandy criterion for legal distinctions. Justinian himself, incidentally, recognized one exception: a donation could be made animo remunerandi,122 and it is due to Christian influence, once again, that even a naturalis obligatio came to be recognized to remunerate past services in this way.123 Remunerative gifts124 also received a special treatment in that they could not be revoked.125

(c) Revocation of donations

For "ordinary" gifts such a right of revocation had gradually been introduced on the ground of ingratitude. This was consistent with the general trend towards ethicizing the law of donations, and it would have been odd to scrutinize the donor's motives without also subjecting the donee's behaviour at least to certain moral minimum standards. First of all, the patron was given the right to revoke donations made to a freedman who turned out to be ungrateful.126 In the course of time, this idea was extended to other donor/donee relationships,127 until we find Justinian rounding the development off in the following way:

118Cf. supra, note3.

119For a detailed analysis, see Bruck, op. cit., note 24, pp. 101 sqq. (first under the title "Ethics vs. Law: St. Paul, the Fathers of the Church, and the "Cheerful Giver' in Roman Law", (1944) 2 Traditio 97 sqq.).

120Recounted by Bruck, op. cit ., note 24, pp. 137 sqq. (first in (1946) 4 Seminar 45 sqq.

sub titulo "The Ghost Story of the 'Cheerful Giver' in Medieval and Modern Civil Law").

121Dawson, op. cit., note 5, p. 86.

122Ulp. D. 15, 3, 10, 7.

G iu seppe G ro sso , vol . I ( 1968) , pp. 418 sqq. ; but se e M iche l, G ra tu ite , pp. 279 sqq. , who concludes that for the Romans remuneratio and donation were two different things.

125 Paul. D. 39, 5, 34, 1 (interpolated). This text deals with a rescue situation ("Si quis aliquem a latrumculis vcl hostibus eripuit et aliquid pro eo ab ipso acdpiat, hacc donatio inrevocabilis est: non mcrccs eximii laboris appellanda est, quod contemplatione salutes certo modo aestimari non placuit"). Cf, most recently, Broisc, op. cit., note 15, pp. 89 sqq.

126C. 8, 55, 1 (A.D. 249).

127Vat. 248; Codex Theodosianus 8, 13, 1 and 2; Levy, Obligatiownrecht, pp. 245 sqq.

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"Generaliter sancimus omnes donationes lege confectas firmas illibatasque manere, si non donationis acceptor ingratus circa donatorem inveniatur, ita ut iniurias atroces in eum effundat vel manus impias inferat vel iacturae molem ex insidiis suis ingerat, quac non levem sensum substantiae donatoris imponit vel vitae periculum aliquid ei intulerit vel quasdam conventiones sivc in scriptis donationi impositas sive sine scriptis habitas, quas donationis acceptor spopondit, minime implere voluerit."97

This provision proceeded through the ius commune98 into the modern codifications." To see a woman cash in donations from her spouse and then commit adultery, 10° for example, is unlovely and hardly acceptable. So is the idea of a donee bringing hunger and distress upon the donor and his family by insisting on fulfilment of the promise of a gift. § 519 BGB therefore entitles the donor to refuse such fulfilment if he is not in a position to honour his promise without endangering his own reasonable maintenance or the fulfilment of his obligations to furnish maintenance to others.101 This equitable inroad on the effects of the promise to make a donation goes back, beyond Justinian, into the 2nd century A.D., when Antoninus Pius granted the donor the privilege to be condemned only in "id quod facere posset".102 From the 16th century this became known as "beneficium competentiae". According to § 528 BGB, the donor may even demand the return of the gift on account of having been impoverished subsequent to its execution. This claim (which has no Roman precursor)103 is, however, subject to certain limitations;104 for the donor's distressed situation must be balanced against the interests of the donee, who may well have relied on the effectiveness of the transfer and made his disposition accordingly.105

7.Donation under the ius commune and in modern law

(a)The concept of donation; insinuatio actis

Of the various conceptions of donation which have been en vogue at one

97C. 8, 55, 10 pr.

98Cf. e.g. Voet, Commentarius ad Pandectas, Lib. XXXIX, Tit. II, XXII; Grotius, Inleiding, III, II, 17; Coing, p. 486; P.R. Owens, "Donation", in: Joubert (ed.), The Law of South Africa, vol. 8 (1979), n. 128.

99Artt. 953, 955 code civil; §§ 948 sq. ABGB; § 530 BGB.

100Cf. e.g. RG, \9\0 Juristische Wochenschrift 148.

101Cf. also § 947 ABGB.

102Ulp. D. 23, 3, 33; Ulp. D. 39, 5, 12; Paul. D. 42, 1, 19, 1; for details, see Wieslaw

Litewski, "Das 'beneficium competentiae' im romischen Recht", in: Studi in onore di Edoardo Volterra, vol. IV (1971), pp. 563 sqq.; Antonio Guarino, La condanna net limiti del passibile (1975), pp. 44 sqq.; Joachim GUdemeister, Das benejicium competentiae im klassischen romischen Recht (1986), pp. 26 sq., 26 sqq.

103But see § 1123 1 11 PrALR.

104For details, see §§ 528, 529, 534 BGB.

105According to С 8, 55, 8, a gift by a patron without filii to his freedman reverts to the patron if he subsequently has children. In the practice of the ius commune, this rule was often applied in an extended version: any gift could be revoked by the subsequent birth of children to the donor (cf. e.g. Voet, Commentarius ad Pandectas, Lib. XXXIX, Tit. V, XXVI); it was not, however, incorporated into the BGB. For details of the development, see William M. Gordon, "The Interpretation of C. 8, 55, 8", in: Studi in onoredi Edoardo Volterra, vol. IV (1971), pp. 413 sqq.

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or other time in the course of Roman legal history, it was, of course, Justinian's that made its way into the ius commune. Donation,137 from the time that Roman law was received in medieval Europe, was an obligatory transaction, which, at the same time, provided a iusta causa for the transfer of ownership. This transfer could coincide with the conclusion of the contract, but it could also be effected subsequently. Donation, therefore, was not conceived of as a unilateral act; it was based on an agreement between donor and donee. Such an agreement did not have to be cast in a specific form; a mere ("naked") pactum was sufficient. However, there was one form of control over gift transactions which had been devised in post-classical Roman law and which has also been adopted in Europe: the requirement of insinuatio actis (curiae) for donations exceeding a certain, rather considerable sum.138 Justinian had fixed the limit at 500 solidi, and there were constant disputes as to how this sum was to be "translated" into contemporary currency.

"Tune solidos non pro denobis florenis, ut quidam consulti responderunt . . . neque pro aureo anglico, een angelot, ut voluere Bodin[us] . . . neque pro auro hongarico, quamvis id vulgo receptum tradat Wesemb[eccius] . . . atque ita in senatu Frisiae judicatum referat Sandc [accipiendus]."134

One wonders what could have prompted the Frisian Senate to adopt the Hungarian gold coin. In many places local statutes or customs prevailed.140 For Savigny, 500 solidi were 2 000 gulden,141 for Windscheid 500 ducats.142 The Cape Supreme Court decided in 1886 that the pound sterling was the equivalent of the Roman aureus.143 In

137Coing, pp. 485 sq. For a particularly detailed discussion, see Voet, Commentarius ad Pandeclas, Lib. XXXIX, Tit. V.

138Grotius [Inleiding, III, II, 15) refrained from expressing an opinion on the matter. He saw the registration requirement as an attempt by the Romans to check excessive liberality ("om de overdadighe mildheid in te tomen") and proceeded to state, with a touch of dry humour: "I do not find anything to this effect in our own laws, perhaps because there is no excess of liberality in this country" ("waer van ich in onzes lands wetten niet en vinde, misschieri omdat de mildheid hier niet te groot is geweest"). The background story on how Grotius tried to establish the law of Holland is told ("ut mihi pro certo relatum") by Van Leeuwcn, Censura Foretisis, Pars I, Lib. II, Cap. VIII, 7. But for Grotius, all authorities agreed that the registration rule was in force in Holland; cf. e.g. Voet, Commentarius ad Pandectas, Lib. XXXIX, Tit. V, 18, who states that there is no reason to abandon this requirement, since fictitious alienations in fraud of creditors are so commonly practised; Van der Keessel, Praekctiones ad Grotium, HI, II, 15.

139Groenewegen, De legibus abrogatis. Cod. Lib. X, Tit. LXX, 1. 5 quotiescumque.

140"Quotiescunque certa summa solidorum ab homine profertur, secundum consetudinem regionis intellcgi atque taxari debent": Groenewegen, loc. cit.; Stryk, Usus

modernus pandectamm, Lib. XXXIX, Tit. V, § 4.

141System, vol. IV, § 116 (p. 210).

142§ 367, 2. Cf. also RGZ 1, 313 (4.666 2/3 Reichsmark).

143Thorpe's Executors v. Thorpe's Tutor (1886) 4 SC 488 at 490. Cf. further R.G. McKerron, "Registration of Gifts", (1935) 52 SAL] 17 sqq.; Coronet's Curator v. Estate Coronel 1941 AD 323 at 339 sqq.

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post-colonial times this became 1 000 Rand144 (which, in terms of contemporary monetary value does not bear the faintest resemblance to the ceiling set by Justinian).

(b) Restrictive policies in France

Whatever interests Constantine tried to protect by this form of control,145 we have found that the general trend down to the time of Justinian was towards relaxation. It is highly intriguing to see how that trend has occasionally been reversed in more modern history. The central government in the France of the ancien regime tried to discourage and prevent transactions which had the effect of dissipating the wealth of the leading families.146 Thus the requirement of registration was extended to gift transactions of every kind, large and small. The code civil essentially maintains these controls. Every gift inter vivos must be notarized, on pain of nullity147—and notarization in France is a cumbersome and costly business: donor as well as donee must appear before (usually) two notaries, the terms of the transaction must be reduced into writing, the document must be read aloud, signed by all present, and copied into a public record.

Conservation of the fortunes of the aristocracy (which had just been toppled) was, of course, not what concerned the fathers of the code civil. They saw gift transactions as being closely related to the law of succession:148 and here the conviction had grown, since the late Middle Ages and throughout Europe, that the next of kin of every deceased person should be ensured a predetermined and substantial share in his estate.149 This principle had become accepted by custom (in the form of a Ugitime) and was incorporated into the code civil. 15° As a result of this, the testator's freedom to dispose of his estate in his last will was limited. It is obvious that gifts inter vivos could seriously undermine this policy:

144 See P.R. Owens, op. cit., note 129, n, 125. Today, s. 43 of the General Law Amendment Act (70/1968) applies; no longer are donations invalid merely through failure to register the donation. Executory contracts of donation, however, must now be reduced to writing and signed by the donor or by a person acting on a written authority granted by him in the presence of two witnesses. Failure to comply with these formalities appears to render the contract unenforceable, not void (i.e. subsequent performance is not recoverable).

145Cf. supra, pp. 492 sq. (note 90).

146For what follows, see Dawson, op. cit., note 5, pp. 29 sqq., 42 sqq.

147Art. 931 code civil. Cf. also am. 932 sq., 1339 code civil.

48 This is already apparent from the systematical position of donation next to the law of

succession.

144 For an overview, see Dawson, op. cit., note 5, pp. 29 sqq., 123 sqq.; cf. also Coing, pp. 610 sqq.

150 Art. 913 code civil. The testator can dispose of 3 of his estate only if one legitimate child survives him, of j if two and of j if three or more legitimate children survive. For further details, see artt914 sq. The BGB provides for a compulsory portion ("Pflichtteil"): "If a descendant of a testator is excluded by disposition mortis causa from succeeding, he may demand his compulsory portion from the heir. The compulsory portion amounts to one-half the statutory portion. The parents and spouse of the testator have the same rights if they have been excluded from succeeding by a disposition mortis causa" (§ 2303).

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