§ 8. But the vitium or defect arising from a thing having been stolen or taken by violence, may be cured by the real owner resuming possession of the res vitiosa as his own, and as having been stolen or forcibly taken from him; and if this same thing is afterwards delivered, neither by theft nor violence, to a bonâ fide possessor, he may acquire it by usucapio. It is different, however, if the original owner buys it back, not knowing that it has been stolen from him.

§ 9. Generally bona vacantia, i.e., goods of persons dying without successors, devolve on the public treasury, but such goods may be acquired by usucapio, until the agents, employed to discover the treasury claims, report such goods to the government. So Papinian held, and his view is adopted in several rescripts of Antoninus Pius, Severus, and Antoninus.

Besides the Prescription of ten or twenty years (longi temporis), the imperial Constitutions created a prescription of thirty or forty years, i.e., longissimi temporis; which makes up by a prolonged possession for the want of some conditions required in the præscriptio longi temporis. After thirty years' possession, when the thing in question is res vitiosa, that is, when it has been taken from its owner by theft or violence, when the possession is not based on a rightful title, or has not been obtained bonâ fide: after forty years' possession, when the thing in question consists of goods belonging to the State, to the Church, or to pupilli, the possessor may set up the præscriptio longissimi temporis to an action brought by the proprietor, or by a creditor claiming under a hypotheca.-This præscriptio, though it protected the person in possession against all actions brought against him, did not invest him with the property (1); so that, if he lost possession, he had no action in rem against the new holder: that action was reserved for the proprietor alone. Justinian, however, afterwards attached to the præscriptio longissimi temporis the privilege of transferring the property whenever the possessor, at the beginning of his possession, had acted bonâ fide (C. vii. t. 39, l. 8, § 1, 2).

§ 14. There was also a special præscriptio-a privilege introduced in favour of those who took from the Fiscus. By a Constitution of Marcus Aurelius, any, even a malâ fide, purchaser from the Fiscus of the property of another, might, after five years' possession, repel by a præscriptio the action in rem of the proprietor. Zeno decreed that every purchaser from the Fiscus should, from the moment of delivery, hold the property discharged of every hypotheca, reserving always a right to the proprietor and the creditors secured by hypotheca, to claim against the Fiscus,

(1) This, perhaps, is the reason why Justinian does not mention it in the Insti

tutes, tit. Usucapio.

provided the claim was made within four years. Justinian extended this privilege to any purchaser from the palace (domus) of the emperor or of the empress.

TITLE VII.-OF GIFTS.

Donatio, strictly and etymologically, is the giving or transferring of property from motives of liberality (dono datio) (1). The original meaning of donatio, therefore, was not the promise or the obligation to give, but a gift executed. The promise, founded on the agreement to give, was not of itself binding; and, unless put into the shape of a stipulatio (B. 3, t. 13), he who had made a bare promise to give a thing, could not be compelled to deliver it, or to transfer the property therein to the donee. But the Christian emperors, particularly Justinian, attached to the bare agreement to give, a binding force, apart from the stipulatio; hence this agreement has acquired the same name as a gift executed, viz., donatio (2).

§ 1. Donatio is not properly a special mode of acquiring the property; for in a donatio the property is transferred by delivery, by mancipatio, &c., as in any other case of alienation. Hence donatio is not a mode of acquiring, but only a particular cause of property being acquired; in other words, a gift is the cause of our acquiring by the ordinary methods any property transferred by a person acting with liberality towards us. -There is, however, one kind of donatio which does, in fact, amount to a special mode of acquiring property, viz., donatio mortis causâ, which can only be executed at the donor's death; for on the donor dying, donatio transfers to the surviving donee the property in the thing given, without any delivery, and by mere operation of law. We may add, that after Constantine's time donatio may be considered as a particular mode of acquiring property; for he decreed that delivery should not complete the donatio unless it was accompanied by certain forms calculated to

(1) Dare, in law, means to transfer the property. When this transfer is made in order to discharge a debt, it is datio soltendi animo; when in order to receive an equivalent, to create an obligation, it is datio contrahendi animo; lastly, when made donandi animo from mere liberality, it is a gift dono datio.

(2) Observe the changes in the law. Originally the law attached no weight whatever to any gift, unless perfected by delivery, or by some other mode of transferring the property; but if the promise to give was in the form of a stipulatio, there arose

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the obligation implied in every stipulatio, and the donee could compel the donor to deliver that which had been gratuitously promised. Lastly, the stipulatio became unnecessary, the mere consent of the donor and donee being sufficient to compel the one to deliver to the other what had been gratuitously promised; but still it was necessary, as we shall find, that the gift should be evidenced, sometimes by writing, sometimes by witnesses, sometimes by insinuatio, that is, by registration amongst the public records.

secure the genuineness and publicity of gifts. Thus it was necessary that the consent of the parties should be proved by writing; and that the donor should divest himself of his property in presence of his neighbours and several witnesses. Moreover, gifts exceeding a certain sum had to be registered, under the penalty of being held invalid, i.e., the writing proving the act of liberality had to be registered with the proper officer.

Pr. There were two kinds of gifts: 1, the gift, mortis causâ; and, 2, the gift between living parties, non mortis causâ.

§ 1. Donatio mortis causâ is a gift which is not to take effect until the death either of the donor or of a third party (1). The death on which the donatio mortis causâ may be made to depend, is either death generally, to which all are subject, e.g., I make a gift to you if I die, ie., if I die before you; or death under certain circumstances, e.g., I make a gift to you, if I die in such an encounter, on such a journey.

§ 1. The peculiarity of the donatio mortis causâ is its being revocable at the will of the donor (si eum donationis pænituisset): this is the real difference between it and any donatio inter vivos, even when made conditionally. Hence the donatio mortis causâ, being unexecuted until the death of the donor, the donee must at that period be capable of receiving, and the donor of giving; and if the donor survive the donee, the gift is void.

There are two kinds of donationes mortis causa. 1. That which is dependent upon death, as a conditio suspensiva; i.e., a condition which suspends the vesting of the gift; e.g., I give you this thing if I die on this expedition. 2. That which is made on a condition resolutoria; i.e., a condition defeating the gift which has vested; e.g., I give you this thing, but on the condition that you will give it me back if I return from such an expedition. In the first case, the donee does not, until the death of the donor, acquire any right to the gift; but when the event specified happens, the thing given vests in the donee without any delivery, and by mere operation of law (2). In the second case, the donatio takes effect immediately, and the donee acquires the property at the moment of delivery; but when the event contemplated arrives, the donatio is defeated, and the donee is bound to restore what he received (3). This is the sort of gift which Telemachus made to Piræus, spoken of in the text.

(1) Some hold this last to be a conditional gift inter vivos, and therefore not to be revocable at the will of the donor. In ordinary cases, certainly, the death of the donor is the condition upon which the donatio mortis causâ depends; hence the text says that, in it, the donor prefers himself to the donee, and prefers the donee to his hæredes.

(2) The donatio mortis causâ, under a

conditio suspensiva, is the donatio mortis causâ proper.

(3) Strictly, the delivery having transferred the property to the donee, the donor can only resume it by a new delivery, which the donee might be compelled to make by a personal action; but after a time the donor had an actio utilis in rem, as if, by the fact of surviving, he legally resumed the property in the thing given.

§ 1. Donationes mortis causâ being revocable and unexecuted till the donor's death, are apparently very like legacies; on the other hand, there are differences, which make the donatio mortis causâ very like a donatio inter vivos. Hence it was a question whether the donatio mortis causâ partook more of the nature of a gift or of a legacy. Constantine seems to have thought it more analogous to a donatio (proper), for he required the same forms, particularly as to registration, to be observed as in the case of donatio inter vivos. Justinian decreed that a donatio mortis causâ should be assimilated to legacies in almost every respect (per omnia fere), and that such a donatio should be valid without registration, whether reduced to writing or not, provided it was made in presence of five witnesses.

A donatio mortis causâ resembles a legacy: 1. Because, like a legacy, it is revocable, and is without effect if the donor survives the donee ; 2. Because it may be made by any person who can bequeath, and to any person who can receive a legacy; 3. Because, like a legacy, it is satisfied out of the donor's assets, after deducting his liabilities, so that it lapses (caducum) by the insolvency of the donor; 4. Because the hæres may make the same reduction of the Falcidian fourth (B. 2, t. 22), from the one as from the other; 5. Because the jus accrescendi is applicable to both; 6. Because in both the property is transferred, on the testator's death, by mere operation of law.-A donatio mortis causâ differs from a legacy: 1. Because the donee is, by the gift mortis causâ, required to accept during the donor's life; 2. Because, not being dependent on the existence of a testament and on the hæres institutus (1) accepting the hæreditas, the gift mortis causâ takes effect by the mere fact of death before the hæreditas is accepted, and without regard to the fate of the donor's testament; 3. Because the capacity of the donee mortis causâ to take, must exist at the time of the donor's death, and not, as in the case of legacies, at the time when the disposition is made; 4. Because the gift mortis causâ sometimes transfers a defeasible property to the donee during the life of the donor, which never is the case in legacies.

§ 2. The donatio inter vivos, or donatio (proper), is a gift by which a man irrevocably disposes of that which forms the subject-matter of his liberality. It is usually made sine ulla mortis cogitatione; but still, a gift, though made in extremis, may be a gift inter vivos and irrevocable, if the donor had no intention of ever taking it back, in other words, if death was rather the motive which induced the donor to give, than a condition either suspending or defeating the gift; for the essence of a gift inter vivos is its irrevocability.

(1) Observe, no man can die partly tes tate and partly intestate. No testament, or any disposition it contains, e.g., a legacy, can be valid, unless one or more hærede.

have been appointed to succeed the testator (instituti), and have accepted the succession (adire hæreditatem).

§ 2. From the time of Justinian, a donatio inter vivos was made by the mere (verbal or written) consent of the parties: so that the mere agreement to give, sufficed to bind the donor to transfer the property, as an agreement to sell would in case of sale; for, observe, the property is never in fact transferred except by delivery.-However, Justinian did not entirely abolish registration in case of gifts inter vivos; but instead of requiring it for any gift exceeding 200 solidi, he required it only in case of gifts exceeding 500 solidi. Moreover the want of registration did not annul the gift; but in cases where that form was required, it merely reduced the gift to such amount as might pass without registration. Moreover, Justinian dispensed with the registration in some cases, e.g., in gifts made for the redemption of captives, for rebuilding houses burnt down, &c. (C. 8, t. 54, 34, 36).

§ 2. Donatio inter vivos may be revoked for ingratitude: as when the donee has been guilty of maltreating or seriously injuring the donor, when he has done any considerable damage to the donor's goods, or has failed to perform the conditions imposed upon him.-In all such cases, the right to revoke belongs exclusively to the donor, who can exercise it only during the life of the donee; nor does it descend to the donor's hæredes. Gifts are not revoked by the birth of a child, except in one case, viz., where a childless patron has given his freedman the whole or a portion of his goods.

§ 3. There is one donatio inter vivos, which is always conditional, even though no condition is expressed, namely, the antenuptial donatio, which is made to the wife before marriage, and in which the celebration of the nuptials is always an implied condition.

The object of this donatio was to vest in the wife, ante nuptias, certain goods as a compensation for her dos, ie., her dowry or marriage contribution. As the husband was bound to restore the dos on the dissolution of the marriage, so the wife was also bound to restore the goods constituting the antenuptial donation; and when the husband was allowed any benefit by survivorship out of the dos, the wife was allowed a proportionate benefit out of the donatio (1).

§ 3. As there can be no donatio by a husband to a wife, or vice versâ, a donor had to make it before the marriage; and hence the name donatio ante nuptias. But Justin, Justinian's adopted father, allowed such donatio to be increased during marriage, wherever the dos (the wife's contribution) should be increased (C. 5, t. 3, 19). Justinian (C. 5,

(1) Prior to Justinian (C. 5, 14, 9), the proportion was relative, i.e., if the husband retained a quarter of the dos, the wife retained a quarter of the donatio, whatever the value of the dos or of the donatio. But Justinian (Nov. 97, c. 1), required that the equality

should be absolute, i.e., that husband and wife should stipulate for an equal, not a proportional share. --The antenuptial donation was unknown in the old law (§ 3): it was only introduced by the emperors of Constantinople (a junioribus principibus).