tuitously of his property. This capacity was not derived from the right of administration, (management), nor did it appertain even to all those who had the power of alienation 1).

II. That the donee should have the capacity of acquiring the objects intended in the donation. L. 9. § 3. D. de don. (39. 5). "Donari non potest, nisi quod ejus fit, cui donatur” 2).

III. That the formality prescribed by law should be observed. This formality consisted of a registration upon the public records, 3) whenever the value of the gift exceeded 500 solidi 4). Below this sum, simple consent was sufficient. L. 34. pr. L. 36. § 3. C. h. t. § 2. I. de don. (2. 7). The valuation of the gift was founded upon its saleable value, after allowing for expenses and charges attaching to the gift. L. 18. § 3. D. de m. c. don. L. 1. § 16. D. ad Sctum. Trebell. (36. 1). In case of an usufruct or other personal servitude, the valuation was made according to the probable duration of the life of the donee. L. 68. pr. D. ad

1) The son (filius familias) who had the free control of his peculium, could not make a donation; and the same was the case with mandataries or guardians. L. 7. pr. D. h. t. "Non enim ad hoc conceditur libera peculii administratio ut perdat." L. 22. 46. § 7. D. de adm. et per. tut. (26: 7). Arts. 1713, 179. Civ. Code Neth. arts. 902, 1421, Code Nap.

2) As to this Fragment, see the Glossaries, and Sav. Syst. IV., p. 111, et supra. 3) The Cincian Law limited the amount of gifts (modus legis Cinciae), and prescribed certain strict formalities; the omission of which did not, however, involve nullity, but gave room for the exceptio or replicatio leg. Cinc., so long as the donor had not fulfilled his generous intentions by a complete abdication of all power over the thing given; while the death of the donor confirmed the gift. "Cincia morte removetur." Fragm. Vat. § 259, 266, 293, 310, 311, 313. These rules and these forms afterwards fell into desuetude, and gave way to others. Vangerow, I. § 122. Savigny (Oblig. II. p. 130) thinks that the permission to make a donation, especially of a sum relatively so large, without the requirement of any formality is not justifiable; considering that such an act may, more than auy other, be the result of rashness or waut of reflection. It is not therefore surprising that all more recent legislation has subjected the pactum, donationis to formalities more or less strict. Prus. L. R. 2., Part. I, Tit. 11, § 1063. Aust. Code, § 943. Code Nap., art. 931. Civ. Code Neth., arts. 1719, 1724.

4) The amount of the fruits was not reckoned. "Cum de modo donationis quaeritur neque partus nomine, neque fructuum, neque pensionum, neque mercedum ulla donatio facta esse videtur." L. 11. § 1. D. h. t. L. 9. § 1. eod.

leg. Falc. (35. 2). If the gift consisted of an annuity not exceeding 500 solidi per annum, it was at one time, doubtful whether it was to be taken as one collective gift, or as several separate and independent gifts 1). Justinian, however, decided the question, by distinguishing between a gift ceasing on the death of the giver or of the receiver, or continuing thereafter. In the latter case, registration was necessary. L. 34. § 4. C. de don. 2). If the object of the gift was a debt which depended upon a suspensive or determining condition, there was the alternative of awaiting the time when the accomplishment or non-accomplishment of the condition should have become certain, or taking for basis, (as in the Falcidian law), the probable or contingent value of the gift, in order to ascertain if the observation of the formality was necessary. L. 45. § 1. L. 73. § 1. D. ad leg. Falc. (35. 2). If the claim or debt given was of doubtful value, the price at which it could be sold was considered as representing the value of the gift. Arg. L. 82. D. eod. — The remission of a debt constituted a gift of the amount of that debt, even when the debtor was not in a condition to pay. L. 82. eod. "Cum debitori liberatio relinquitur, ipse sibi solvendo videtur, et quod ad se attinet, dives est." L. 31. § 1 et 4. D. de m. c. don. (39. 6).

1) Variabatur, utrum eum ex particulari donatione, multas fecisse donationes existimandum sit, et eas actis non indigere, an ex totius stipulationis fundamento et fonte eius ex quo annuae donationes profluxerunt, et unam eam esse donationem putandam et procul dubio, monumentorum observatione vallandam."

2) "Ut si hujusmodi quidem fuerit donatio ut intra vitam personarum stetur, vel dantis, vel accipientis, et multae intelligantur donationes, et liberae a monumentorum observatione sin autem heredum ex utraque parte fuerit mentio, vel adjiciatur tempus vitae vel donatoris vel eius qui donationem accepit, tunc ei quasi perpetuata donatione et continuatione eius et una intelligatur donatio." There is a dispute as to the concluding words of this passage. Cujas, (Observ. 15, 22), relying upon a scholium of the Basilicae, reads adiiciatur, or vel non adiiciatur. Sav. Syst. IV, 213, reads, "nec adiiciatur tempus vitae heredum vel donatoris"; and there are yet other variations. The true explanation, i. e. that vitae is not in the genitive, but in the dative, has been given by Briegleb, Arch. für Civ. Pr. Tom. 38, p. 192, et s. See also Vangerow, I, § 122; and Arndts, § 81, note 4.

When several donations had been made, at different times, to the same person, each of which gifts was within the legal limit of amount, registration was not required, in so far at least, as there had been no attempt, by this means, to evade the law. L. 34. § 3. C. h. 1. "Et plures intelligantur, et sigulae secundum sui naturam obtineant, et monumentorum observatione non indigeant."

When the requisite formality had not been observed, the gift was void in so far as it exceeded the legal limit; but as to the rest it was valid 1). This modification had, sometimes, the effect of creating between the donor and the donee a compulsory indivisible joint ownership, from which the rules established by Justinian offered a means of release. L. 34. pr. et § 2. 1.

The following were exempt from the formality of Registration 2). I. Donations made to or by the Emperor. L. 34. pr. Nov. 52. 2. II. Donations made for the ransom of prisoners. (In causas piissimas). L. 34. pr. L. 36. pr. eod.

III. Donations of personal property, made to deserving soldiers, by the military commandant, (magister militum), whether drawn from booty or furnished from his own property. L. 36. § 1.

IV. Donations made for the restoration of buildings destroyed by accident or fire.

V. Donations serving to constitute a marriage portion. L. 36. § 2. eod. L. 31. pr. C. de jur. dot. (5. 12). Between husband and wife, gifts were made valid by death, provided, that when they exceeded 500 solidi, they had been registered. L. 25. C. de don. i. v. ei ux. (5. 16).

1) "Hoc quod superfluum est tantummodo non valere, reliquam vero quantitatem quae intra legis terminos constituta est in suo robore perdurare." L. 34. pr. 1.

2) Sav. Syst. IV., § 167.

§ 71. REVOCABILITY OF DONATIONS BETWEEN LIVING PERSONS.

A donation, although generally irrevocable, might be revoked, either by a third person whose rights had been infringed by the generosity of a donor, or by the donor himself. The former mode of revocation was effected by means of the querela inofficiosae donationis, and belongs to those, whose hereditary portion (legitim) had been diminished or exhausted by the gift 1). Fragm, Vat. § 270, 271, 280, 281. L. 5. C. de inoff. don. (3. 29). Moreover, creditors might demand the nullification of donations made by their debtor in fraud of their rights; and they retained this right even when the person enriched by the gift had no knowledge of the fraud committed by the donor. "Nec videtur injuria affici is qui ignoravit, cum lucrum extorqueatur, non dam num infligatur." L. 6. § 11. D. quae in fraud. cred. (42. 8)2). The donor might, himself, revoke his gift:

I. By reason of the birth of children after the making of the donation. (But this right belonged only to the Patron as against his freed man 3).

1) Schilling, p. 973 xx, (and the opinion which he expresses, had been already set forth in the Glossa,) believes that the donor himself, in case children were born to him, could revoke the gift, by a condictio ex lege, on the ground of attaint to their reserved portion (legitim). This opinion seems to me erroneous; for, first, since no other than the donor is exactly aware of the state of his fortune, such a revocation would, in reality, depend upon his caprice, and would degenerate into a revocatio ob supervenientes liberos. Again, it is uncertain whether the children will survive the donor, or whether, for some reason, they may not be deprived of the right to contest the donation. The rescript quoted in L. 5. C. de inoff. don., has in view, solely, to allay the fears of un anxions father, who seemed uneasy as to the excessive donations which he had made to his children already born; and to this end the authors of the rescript remind the father of the legal means of which the children yet to be born might avail themselves at his death: ad patrimonium tuum revertetur. The L. 8. C. de rev. don. (8 56) upon which Schilling relies, does not prove his case; for this text does not read, like the other, revertetur, but revertatur, while the right of revocation by the patron is founded exclusively upon the subsequent birth of children. See. Sav. Syst. IV, § 168 c. 2) See also art. 1377, Neth. Civ. Code; arts. 775, 776. Neth. Com. Code. 3) In practice, this provision was extended to all donors, but wrongfully so. Formerly

II. For ingratitude on the part of the donee, ')

provided it was manifested by the acts specified by law 2), and that these acts were proved before the judge. L. 31. § 1. D. de don. L. 7, 9, 10. C. de rev. don. (8. 56). To recover the thing given, the donor had the condictio ex lege, by means of which he demanded the restoration of the object itself, if it still existed, (identically or in kind), and in the contrary case its value; but solely for so much as the donee had gained by the donation 3).

this extension might have been thought legal, but all doubt on the subject is removed by the Fragm. Vat. which prove that the L. 8. C. de rev. don., far from extending the power of revocation by the donor, limits even that of his patron to this sole and unique case. (§ 272, 313). Sav. Syst. IV, p. 229. The Austrian Code forbids the revocation, but shews some favour to children subsequently born. The Prussian Law, (Part. I. Tit. 11. § 1140, 1141), permits revocation only as to the promise to give, but forbids it when the thing given is already in posesssion of the donee. The Code Napoleon permits it as to all donations, and with a rigour which leads to acts of great injustice (art. 960). The Dutch Code has wisely forbidden it absolutely.

1) Anciently, revocation for ingratitude was a right of the Patron only. It was afterwards given to ascendants, and finally, by a law of Justinian, to all donors. L. 1. 7. 9. 10. C. h. 1. It is the same in Prus. L. R. Part I, Tit. 11. § 1151 et seq; in the Austrian Code, § 948; in the Code Napoleon, arts. 953, 955; and in the Neth. Code, art. 1725, nos 2 and 3.

2) "Ex his enim tantummodo causis si fuerint in judicium dilucidis argumentis cognitionaliter approbatae, etiam donationes in eos factas everti concedimus." L. 10. C. 1.

3) If the donee was not enriched (by the gift) there was nothing to restore. L. 65, § 8. L. 26, § 12. D. de cond. ind. (12. 6). L. 28. pr. D. de don. i. v. et ux. (24. 1). As to this last law, the Glossa makes this very just remark: "Validior tamen ratio est quia hactenus revocatur donatio, quatenus locupletior est qui accepit." I even regard as at least contestable, the opinion of Savigny (p. 236), and of Unger, (II, p. 216), who admit, as does also the Dutch Law, (Code civ. art. 1728), that the donee is responsible for the destruction or consumption of the gift, if effected after the act of ingratitude, but before the revocation. At least, the L. 7. C. maintains all which, "matre pacifica et ante inchoatum coeptumque jurgium perfectum est." To invoke, by way of analogy, what took place in the m. c. donatio, (quoniam scit sibi posse condici, si convaluerit donator, (L. 39. D. d. c. m. d.), is to lose sight of the fact that in this case the revocation is inherent in the nature of the donation itself, and is but the immediate consequence of the express will of the parties; while the revocation by reason of ingratitude depends entirely upon the disposition of mind of the donor; who may grant a generous pardon, upon which the donee may have reckoned, without bad faith.

There is controversy, also, as to the restitution of fruits in case of ingratitude. Savigny (p. 239) imposes it upon the douee Schilling combats this doctrine, but on the not