autem duo genera sunt: mortis causa et non mortis causa. 1 Mortis causa donatio est, quae propter mortis fit suspicionem, cum quis ita donat, ut, si quid humanitus ei contigisset, haberet is qui accepit: sin autem supervixisset qui donavit, reciperet, vel si eum donationis poenituisset aut prior decesserit is cui donatum sit. hae mortis causa donationes ad exemplum legatorum redactae sunt per omnia. nam cum prudentibus ambiguum fuerat, utrum donationis an legati instar eam optinere oporteret, et utriusque causae quaedam habebat insignia et alii ad aliud genus eam retrahebant: a nobis constitutum est, ut per omnia fere legatis connumeretur et sic procedat, quemadmodum eam nostra formavit constitutio. et in summa mortis causa donatio est, cum magis se quis velit habere, quam eum cui donatur, magisque eum cui donat, quam heredem suum. sic et apud Homerum Telemachus donat Piraeo.

...

mode of acquisition because, under the law of the lex Cincia (for which see inf.), as a rule 'sola promissio non perficit donationem, sed exigitur, ut . . . et interdicto superior sit is, cui [donatum est]' fragm. Vat. 311 and to succeed in the interdict it was necessary that the donee should have a possession which would suffice to make him dominus either Quiritarian or bonitarian. They regarded it as a civilis adquisitio probably because res mancipi could be given only by mancipatio, fragm. Vat. 263, 4. Justinian's treatment of it as a civil mode of acquisition is indefensible: it is not gift alone, as Savigny remarks, which confers dominium in any case, but gift in combination with and serving as a iusta causa (p. 200 supr.) for traditio, exactly as sale or exchange might serve. Again, it is not necessary that donatio should take the form of conferring dominium : it may consist in the constitution of a ius in re aliena, the transfer of possession, the giving of an actionable promise, or the release of a debt.

Donatio in the widest sense is any other than a testamentary disposition, which (1) is accompanied by consensus between the two parties : (2) voluntarily, gratuitously, and intentionally improves the proprietary position of the donee; and (3) actually or prospectively diminishes the property of the donor. Provided these conditions are satisfied, it may take any of the forms above mentioned.

§ 1. A donatio mortis causa stands midway between a legacy and a gift inter vivos. In that it consists in a present act of bounty ('praesens praesenti dat' Dig. 39. 6. 38) it differs from the former, which confers no right whatever on the legatee until the testator is dead and his heir has accepted the inheritance: here, if the donee outlives the donor, the thing given never goes to the heres at all. It differs from the latter in being absolutely perfected only by the donor's decease. The gift may be made

Aliae autem donationes sunt, quae sine ulla mortis cogita- 2 tione fiunt, quas inter vivos appellamus. quae omnino non comparantur legatis: quae si fuerint perfectae, temere revocari non possunt. perficiuntur autem, cum donator suam

so conditional on that event, that the property in the gift does not pass to the donee until its occurrence; in the meanwhile he has only its use and enjoyment: or the property may pass at once, subject to the understanding that it is to revert to the donor in case of his proving the better life. Where the gift is made in anticipation of some especial danger threatening him, it is cancelled not only by the donee's prior decease, but also so soon as that danger is survived. In any case the donor may revoke the gift at any moment prior to his decease ('cum quis ita donet ut... reciperet si eum donationis poenituisset '). Justinian's later statement, that in nearly all respects donationes mortis causa were governed by the same rules as legacies, is truer than his earlier one, that the parallelism was complete. Thus (1) donatio m. c. was quite independent of the fate of the inheritance: legacy depended on acceptance of the hereditas. (2) No particular qualification in the way of commercium was required in either donor or donee: the validity of a legacy presupposed testamenti factio in both parties : similarly a filiusfamilias could with his pater's consent make gifts mortis causa from his peculium profecticium, but in no case could he bequeath it. (3) Legacies were avoided by the successful bringing of a querella inofficiosi (Tit. 18 inf.), but gifts m. c. were not so affected: 'qui mortis causa donationem accepit a testatore, non est similis in hac causa legatario' Dig. 34. 9. 5. 17. But among the points of resemblance are the following: (1) The rules of the leges Furia and Voconia, Tit. 22. pr. inf. applied to both, Gaius ii. 225, 6; iv. 23. (2) The provisions of the leges Iulia and Papia Poppaea (note on Tit. 14. pr. inf.) as to capacity to take legacies was extended to gifts m. c. by a senatus-consult, Dig. 39. 6. 35. (3) By a constitution of Septimius Severus the heir was entitled to deduct the Falcidian fourth (Tit. 22 inf.) from such gifts, Cod. 8. 57. 2 ; 6. 50. 5. (4) If the donor became insolvent, the creditors might impeach his gifts mortis causa: 'nam cum legata ex testamento eius, qui solvendo non fuit, omnimodo inutilia sunt, possunt videri etiam donationes mortis causa factae rescindi debere, quia legatorum instar obtinent' Dig. 39. 6. 17. (6) Gifts m. c., like legacies, became void if the donor underwent capital punishment, Dig. ib. 7.

No particular form was prescribed for this class of gift unless its amount exceeded 500 solidi, in which case it must either be registered (insinuatio in acta) or made before five witnesses of the same qualification as was required in the execution of codicilli (note on Tit. 25. 3 inf.), Cod. 8. 57. 4.

Most editions of the Institutes insert at the end of this section some lines from Odyssey 17.78-83. They are not found, however, in the great majority of the MSS., nor in the passage of Marcianus in Dig. 39. 6. 1 from which our text is obviously derived.

§ 2. When the gift takes the form of a promise, the latter, and not its

voluntatem scriptis aut sine scriptis manifestaverit, 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. et cum retro principum dispositiones insinuari eas actis intervenientibus volebant, si maiores ducentorum fuerant solidorum, nostra constitutio et quantitatem usque ad quingentos solidos ampliavit, quam stare et sine insinuatione statuit, et quasdam donationes invenit, quae penitus insinuationem fieri minime desiderant, sed in se plenissimam habent firmitatem. alia insuper multa ad uberiorem exitum donationum invenimus, quae omnia ex nostris constitutionibus, quas super his posuimus, colligenda sunt. sciendum tamen est, quod, etsi plenissimae sint donationes, tamen si ingrati existant homines, in quos beneficium collatum est, donatoribus per nostram constitutionem licentiam praestavimus certis ex causis eas revocare, ne, qui suas res in alios contulerunt, ab his quandam patiantur iniuriam vel iacturam,

performance, is the gift, for performance can be enforced by action, and 'donari videtur quod nullo iure cogente conceditur' Dig. 50. 17. 82. Such promises originally were not actionable unless made by stipulatio: Antoninus Pius made a mere formless promise actionable between parents and children (fragm. Vat. 314); and, as appears from this section, Justinian extended this to all persons whatsoever: 'non ex hoc inutilis sit donatio, quod res non traditae sunt, nec confirmetur ex traditione donatio' Cod. 8. 54. 35. 5.

Gifts inter vivos were not as a rule revocable, like those made mortis causa. By the old law, the pater or patronus might revoke gifts to an emancipated child or libertus during their joint lives (fragm. Vat. 272), but this right was limited by Diocletian and succeeding emperors to cases in which ingratitude could be proved, or where children were subsequently born to the donor. Justinian, as he here says, while permitting all donors without distinction to revoke on the first of these grounds, carefully specified the acts which amounted to legal ingratitude, Cod. 8. 56. 10.

Gifts were forbidden between husband and wife by customary law, 'ne mutuo amore invicem spoliarentur ' Dig. 24. 1. 1. Allusion is also made in this section to the invalidity of gifts exceeding a certain maximum unless made under prescribed forms. The oldest enactment on this subject is the lex Cincia de muneribus, B. C. 204, from the operation of which, however, certain classes of persons were excepted on the ground of kinship, affinity, patronatus, or the donor's being the donee's guardian. It appears to have enacted that, as between personae non exceptae, gifts

secundum enumeratos in nostra constitutione modos. Est et 3 aliud genus inter vivos donationum, quod veteribus quidem prudentibus penitus erat incognitum, postea autem a iunioribus divis principibus introductum est, quod ante nuptias vocabatur et tacitam in se condicionem habebat, ut tunc ratum esset, cum matrimonium fuerit insecutum : ideoque ante nuptias appellabatur, quod ante matrimonium efficiebatur et nusquam post nuptias celebratas talis donatio procedebat. sed primus quidem divus Iustinus pater noster, cum augeri dotes et post

should be imperfect and revocable in whole or part either if they exceeded a certain maximum, the amount of which is unknown, or unless both ownership and possession of the thing given were conveyed in the ap propriate manner (mancipatio and traditio), fragm. Vat. 310-313. Being a lex imperfecta, it did not avoid a gift which failed to satisfy both of these conditions, or impose a penalty on the donee: but the introduction of the exceptio legis Cinciae practically enabled donors to revoke gifts which violated the statute at any moment prior to their decease ('morte Cincia removetur ' fragm. Vat. 259. 266). If one may argue from the analogy of the lex Furia testamentaria, only twenty years later in date (Tit. 22. pr. inf.), the maximum fixed by the lex Cincia was one which two hundred years afterwards must have seemed ridiculously small: it is not improbable that after some while observation of the statutory requirement as to form (conveyance) was allowed to atone for violation of the rule as to amount, so that the latter became tacitly repealed by disuse : the rareness of passages referring to the maximum seems to require some such hypothesis.

To facilitate proof, it appears to have become common under the empire to register gifts apud acta (fragm. Vat. 266 a, 268). Such registration was made compulsory for all gifts exceeding 200 solidi in value, except those to personae exceptae lege Cincia, by Constantius Chlorus: of this privilege even they were deprived by Constantine, Cod. Theod. 3. 5. I, as later still they were of the other advantage they had enjoyed under the old statute, viz. that gifts between them did not require conveyance for their perfection (Cod. Theod. 8. 12. 5), which was allowed to survive in favour only of parents and children. Justinian, as he says here, enacted that delivery should in no case be essential for the perfection of the gift, and relieved gifts of more than 200 but less than 500 solidi from the necessity of registration: where one exceeding that amount was unregistered, the excess could not be claimed. The gifts to which he refers as not requiring registration however large are gifts to and from the emperor, those forming a dos so far as they can be construed as gifts to the wife, and such as were made for the redemption of captives and the rebuilding of houses fallen or otherwise destroyed, Cod. 8. 50. 34; 5. 12. 31.

§ 3. The donatio ante or propter nuptias was gradually developed out

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nuptias fuerat permissum, si quid tale evenit, etiam ante nuptias donationem augeri et constante matrimonio sua constitutione permisit: sed tamen nomen inconveniens remanebat, cum ante nuptias quidem vocabatur, post nuptias autem tale accipiebat incrementum. sed nos plenissimo fini tradere sanctiones cupientes et consequentia nomina rebus esse studentes constituimus, ut tales donationes non augeantur tantum, sed et constante matrimonio initium accipiant et non ante nuptias, sed propter nuptias vocentur et dotibus in hoc exaequentur, ut, quemadmodum dotes et constante matrimonio non solum augentur, sed etiam fiunt, ita et istae donationes, quae propter nuptias introductae sunt, non solum antecedant matrimonium, sed etiam eo contracto et augeantur et constituantur.

Erat olim et alius modus civilis adquisitionis per ius adcrescendi, quod est tale: si communem servum habens aliquis cum Titio solus libertatem ei imposuit vel vindicta vel testamento, eo casu pars eius amittebatur et socio adcrescebat, sed cum pessimo fuerat exemplo et libertate servum defraudari et ex ea humanioribus quidem dominis damnum inferri, severioribus autem lucrum adcrescere: hoc quasi invidiae plenum pio remedio per nostram constitutionem mederi necessarium duximus et invenimus viam, per quam et manumissor et socius eius et qui libertatem accepit nostro fruantur beneficio,

of the arrha or sponsalicia largitas, and its object, like that of the dos, was to support the expenses of the joint household: hence the extension to it of nearly all the rules relating to the former, and the name årrípɛpva (antidos) given to it in Cod. 5. 3. 30. There are no constitutions bearing upon it earlier than Theodosius II. The woman had a legal claim against the husband or his paterfamilias to a donatio propter nuptias equivalent to the dos she brought herself. During the continuance of the marriage it was under the control of the husband, and in fact belonged to him, but he could not alienate land or houses comprised in it even with the consent of the wife, who had a statutory hypothec over all his property to secure its delivery should she become entitled. In case of her death, or divorce through her fault, it ceased to have any further legal existence; if the marriage terminated through the husband's death or divorce occasioned by him, she had no claim upon it, unless there was issue, save by express agreement; if there was issue, she was entitled to the usufruct; the dominium she shared with the children. If the husband became insolvent, or even embarrassed, she could demand it at once, Cod. 5. 12. 29.

§ 4. For this ius adcrescendi cf. Ulpian, reg. 1. 18, Paul, sent. rec. 4.