robur et traditionis necessitas incumbat donatori. Et cum retro principum dispositiones insinuari eas actis intervenientibus volebant, si majores ducentorum fuerant solidorum, nostra constitutio et quantitatem usque ad quingentos solidos ampliavit, quam stare et sine insinuatione statuit, et quasdam donationes invenit, quæ penitus insinuationem fieri minime desiderant, sed in se plenissimam habent firmitatem. Alia insuper multa ad uberiorem exitum donationum invenimus, quæ omnia ex nostris constitutionibus, quas super his posuimus, colligenda sunt. Sciendum tamen est, quod, etsi plenissimæ sint donationes, tamen si ingrati existant homines, in quos beneficium collatum est, donatoribus per nostram constitutionem licentiam præstavimus certis ex causis eas revocare, ne, qui suas res in alios contulerunt, ab his quandam patiantur injuriam vel jacturam, secundum enumeratos in nostra constitutione modos. D. xxxix. 6. 27; C. viii. 54. 35. 5; pr. 2 and 3; tion they are completely effectual, and C. viii. 54. 34. pr. 3, 4; C. viii. 54. 36. A thing given was, if a res mancipi, given by mancipation, or in jure cessio, and, if a res nec mancipi, by tradition. But a mere agreement to give gratuitously (pactum) was not in the old law binding on the person who agreed to give, and to make a promise to give binding, it was necessary that the agreement should assume the form of a stipulation. (See Introd. sec. 83.) The lex Cincia, 560 A.U.c., introduced several new rules into the law respecting gifts, prohibiting gifts beyond a certain amount, excepting to near relatives, but did not make a mere agreement to give in any degree valid. The first step taken in this direction was by Constantine (Cod. Theod. viii. 12. 4 et seq.), who made the agreement binding if reduced to writing. And Justinian (C. viii. 54. 35. 5) made the agreement binding, whether reduced to writing or not; but it is to be observed that he provided, not that the property should pass by the agreement, but that the donor should be bound thereby to make tradition of the thing. So that the property in the thing was acquired by tradition, and not by donation, as a distinct mode of acquisition. Donations not registered were only void for the sum by which they exceeded the amount fixed by law. (C. viii. 54. 34.) Those valid without registration at all were such as donations made by, or to, the emperor to redeem captives, or to rebuild edifices destroyed by fire. (C. viii. 54. 36.) Gifts inter vivos were revocable in certain cases specified in the Code (viii. 56. 10), as, for instance, when the person benefited seriously injured, or attempted to injure, the person or property of the donor, or failed to fulfil the conditions of the gift. Revocation in such cases was personal to the donor and to the receiver, and could not be exacted by the heirs of the one, or against the heirs of the other. 3. Est et aliud genus inter vivos donationum, quod veteribus quidem prudentibus penitus erat incognitum, postea autem a junioribus 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 nunquam post nuptias celebratas talis donatio procedebat. Sed primus quidem divus Justinus, pater noster, cum augeri dotes et post 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 exæquentur, ut, quemadmodum dotes et constante matrimonio non solum augentur, sed etiam fiunt, ita et istæ donationes, quæ propter nuptias introductæ sunt, non solum antecedant matrimonium, sed etiam eo contracto et augeantur et constituantur. 3. There is another kind of donation inter vivos entirely unknown to the ancient lawyers, and subsequently introduced by the more recent emperors. It was termed the donatio ante nuptias, and was made under a tacit condition that it should only take effect when the marriage had followed on it. Hence it was called ante nuptias, because it preceded the marriage, and never took place after its celebration ; but as it was permitted that dotes should be increased even after marriage, the Emperor Justin, our father, was the first to permit, by his constitution, that in case the dos was increased, the donation ante nuptias might be increased also, even during the marriage; but the donation still retained what was thus an improper name, and was called ante nuptias, while this increase was made to it after marriage. Wishing, therefore, to perfect the law on the subject, and to make names appropriate to things, we have enacted that such donations may not only be increased, but may also be first made during marriage, and that they shall be termed, not ante nuptias, but propter nuptias, and that they shall be placed on the footing of dotes, so far that, as dotes may be not only increased but first made during marriage, so donations propter nuptias may not only precede marriage, but also, after the tie of marriage has been formed, may be increased or made. C. v. 3. 19, 20. When the wife passed in manum viri, all that she had belonged to her husband; when she did not, all her property belonged exclusively to herself, and all gifts between husband and wife were strictly prohibited by law. But, as a provision for the expenses of marriage, the dos was contributed before or after marriage (and sometimes increased afterwards) by the wife or by a paternal ascendant or some one else for her. In case the dos was contributed by a paternal ascendant (dos profectitia), it could, on the termination of the marriage by the death of the wife, be reclaimed from the husband by the donor or his heirs. If it was given for her benefit by any one else than such an ascendant (dos adventitia), it could not be reclaimed by the donor or his heirs unless there had been a special agreement that it should be reclaimable, in which case it was termed dos receptitia (D. xxiii. 3. 5; ULP. Frag. 6. 5); but Justinian enacted that the dos adventitia should go to the heirs of the wife unless a special agreement to the contrary had been made. (C. v. 13. 1. 63.) Thus under Justinian the surviving husband in every case lost the dos. If the wife survived the husband, and was sui juris, the dos, however derived, belonged to her, unless a provision to the contrary had been made by the donor. If she was still in the power of her father, she and he had to join in elaiming it. (D. xxiv. 32. 1.) If the dos consisted of things that could be replaced by others of the same kind (res fungibiles) (D. xxiii. 3. 42), the things given belonged in full property to the husband, and he had to return like things to the same amount within three years (altered to one year by Justinian, Cod. v. 13. 1. 7) after the dissolution of the marriage. If the dos consisted of things which could not thus be replaced, such as land or houses, the husband was nominally the owner and managed the property, but he could only take the annual proceeds, and he had to preserve the property intact and to restore it immediately on the dissolution of the marriage. He was prevented by the lex Julia de adul teriis et de fundo dotali, passed in the time of Augustus, from alienating immoveable property in Italy forming part of the dos without the consent of the wife, or mortgaging it even with her consent; and Justinian, as we shall see in the introductory paragraph of the next Title, forbade the mortgaging or alienation of immoveables, wherever situated, forming part of the dos, even with the wife's consent. As to the expenses of the husband in his management, see note to Book iv. 6. 37. If the marriage was terminated not by death but divorce, the general rule was that the husband had to restore the dos just as he would have had to do in case of the wife's death; but if the wife was divorced for misconduct, or divorced her husband without reason given, the husband was allowed to retain at first a part and in later times the whole of the dos. (C. v. 12. 24; C. Th. iii. 16. 2.) The donatio ante nuptias, of which we first hear in a constitution of Theodosius and Valentinian (C. v. 17. 8. 4), which speaks of it as recognised by law, was a gift on the part of the husband as an equivalent to the dos. It was the property of the wife, but managed by the husband, and could not be alienated even with her consent. Justinian provided (Nov. 97. 1) that the wife, if survivor, should receive an equal value from the donatio propter nuptias with that which the husband, if survivor, would have received from the dos, the actual amount reserved for the survivor being matter of agreement between the parties. By a constitution previous to Justinian (C. v. 14. 7), the wife had, if survivor, an equal portion of the donatio with that her husband had of the dos. Justinian substituted an equality of value for an equality of proportion. Justinus, the predecessor of Justinian, was his uncle and adoptive father. 4. Erat olim et alius modus civilis adquisitionis per jus adcrescendi, quod est tale: si communem servum habens aliquis cum Titio, solus libertatem ei imposuit vel vindicta vel testamento, eo casu pars ejus amittebatur et socio adcrescebat. Sed cum pessimum fuerat exemplo, et libertate servum defraudari et ex ea humanioribus quidem dominis damnum inferri, severioribus autem lucrum adcrescere hoc quasi invidiæ plenum pio remedio per nostram constitutionem mederi necessarium duximus et invenimus viam, per quam et manumissor et socius ejus et qui libertatem accepit, nostro fruantur beneficio, libertate cum effectu procedente (cujus favore et antiquos legislatores multa et contra communes regulas statuisse manifestissimum est) et eo, qui eam imposuit, suæ liberalitatis stabilitate gaudente et socio indemni conservato pretiumque servi secundum partem dominii, quod nos definivimus, accipiente. 4. There was formerly another mode of acquiring property by the civil law, namely, that of accrual; as, if any one, having a slave in common with Titius, had himself alone enfranchised him, either by vindicta or by testament, his share in that slave was lost, and accrued to the joint owner. But, as it was an example of very bad tendency, that both the slave should be defrauded of his freedom, and that the more humane master should suffer loss, while the more severe master profited, we have thought it advisable to apply by our constitution a pious remedy to what seemed so odious, and have devised means by which the manumittor, and the co-proprietor, and the freed slave may be all benefited. Freedom, to favour which ancient legislators have often most obviously violated the ordinary rules of law, shall be really gained by the slave; he who has given this freedom, shall have the delight of seeing it maintained; and his co-proprietor shall be indemnified by receiving a price for the slave, proportioned to his interest in him, according to the rates fixed in our constitution. C. vii. 7. 1. 5. A man could not be partly free, partly a slave. If, then, a slave was enfranchised by one co-proprietor, was he a slave or free? The old law, as the text informs us, pronounced him the former. If the enfranchisement, however, was such that, according to the rules given in Bk. i. Tit. 5. 3, the enfranchised slave would have become only a Latinus-Junianus, the enfranchisement had no effect at all, and the slave remained the slave, as before, of both. But if the enfranchisement had been such that he would have been a Roman citizen, the interest of the master who manumitted him accrued to the other proprietors. (PAUL. Sent. iv. 12. 1.) The scale of prices referred to in the concluding words of the text is given in the Code. (vii. 7. 1. 5.) TIT. VIII. QUIBUS ALIENARE LICET VEL NON. Accidit aliquando, ut qui dominus sit, alienare non possit et contra qui dominus non sit, alienandæ rei potestatem habeat. Nam dotale prædium maritus invita muliere per legem Juliam prohibetur alienare, quamvis ipsius sit, dotis causa ei Sometimes it happens that he who is owner of a thing cannot alienate it, while, on the contrary, he who is not owner has the power of alienation. Thus, the husband is prohibited by the lex Julia from alienating immoveables, which form part of the dos, datum. Quod nos, legem Juliam corrigentes, in meliorem statum deduximus. Cum enim lex in soli tantummodo rebus locum habebat, quæ Italicæ fuerant, et alienationes inhibebat, quæ invita muliere fiebant, hypothecas autem earum etiam volente utrisque remedium imposuimus, ut etiam in eas res, quæ in provinciali solo positæ sunt, interdicta fiat alienatio vel obligatio et neutrum eorum neque consentientibus mulieribus procedat, ne sexus muliebris fragilitas in perniciem substantiæ earum converteretur. against the wish of the wife, although these immoveables, having been given him as a part of the dos, belong to him. We have amended the lex Julia and introduced a great improvement. This law only applied to Italian immoveables, and it prohibited alienations made against the wishes of the wife, and mortgages made even with her consent. Wishing to amend the law on each of these points, we have declared that the prohibition of alienation or mortgage shall extend to immoveables in the provinces, and that neither alienation nor mortgage shall be made even with the consent of the wife, lest the weakness of the female sex should be abused to the detriment of their fortunes. GAI. ii. 62, 63; C. v. 13. 15. The power of alienating belongs to the owner and to him only; and every owner can alienate the thing belonging to him. There are, however, exceptions to the rule, and these exceptions form the subject of this Title. The subject of dotes has been already discussed in the note to paragr. 3 of the last Title. 1. Contra autem creditor pignus ex pactione, quamvis ejus ea res non sit, alienare potest. Sed hoc forsitan ideo videtur fieri, quod voluntate debitoris intellegitur pignus alienare, qui ab initio contractus pactus est, ut liceret creditori pignus vendere, si pecunia non solvatur. Sed ne creditores jus suum persequi impedirentur neque debitores temere suarum rerum dominium amittere videantur, nostra constitutione consultum est et certus modus impositus est, per quem pignorum distractio possit procedere, cujus tenore utrique parti creditorum et debitorum satis abundeque provisum est. 1. On the other hand, a creditor may, according to agreement, alienate a pledge, although the thing is not his own property. But this alienation may perhaps be considered as taking place by the intention of the debtor, who in making the contract has agreed that the creditor might sell the thing pledged, if the debt was not paid. But that creditors might not be im. peded in the pursuit of their rights, nor debtors seem too easily deprived of their property, a provision has been made by our constitution establishing a fixed method of procedure for the sale of pledges, by which the respective interests of the creditor and debtor have been fully secured. GAI. ii. 64; C. viii. 34. 3. pr. et seq. The power of a creditor to sell the thing pledged, forming an exception to the rule that none but the owner could alienate, was so necessary a part of his rights that it could not be taken from him even by express agreement; and an agreement ne vendere liceat had no other effect than to make it necessary for the creditor to give the debtor notice of his intention to sell. (D. xiii. 7. 4-6.) Justinian, by his constitution, permitted the parties to fix the time, and place, and manner of sale at their pleasure, and it was only if there was no special agreement that the regulations of his constitu |