CASE 211: Motives and Reasons
D. 39.6.35.2 (Paulus libro sexto ad legem Iuliam et Papiam)
Sed mortis causa donatio longe differt ab illa vera et absoluta donatione, quae ita proficiscitur, ut nullo casu revocetur.
et ibi qui donat illum potius quam se habere mavult: at is, qui mortis causa donat, se cogitat atque amore vitae recepisse potius quam dedisse mavult: et hoc est, quare vulgo dicatur: “se potius habere vult, quam eum cui donat, illum deinde potius quam heredem suum.”D. 39.6.2 (Ulpianus libro trigensimo secundo ad Sabinum)
Iulianus libro septimo decimo digestorum tres esse species mortis causa donationum ait, unam, cum quis nullo praesentis periculi metu conterritus, sed sola cogitatione mortalitatis donat. aliam esse speciem mortis causa donationum ait, cum quis imminente periculo commotus ita donat, ut statim fiat accipientis. tertium genus esse donationis ait, si quis periculo motus non sic det, ut statim faciat accipientis, sed tunc demum, cum mors fuerit insecuta.
(Paul in the sixth book on the lex Julia et Papia)
But a gift on account of death (mortis causa) is far different from a true and absolute gift, which occurs in such a way that in no circumstances is it revoked. In the latter case, the donor prefers that something be owned by him (the donee) rather than by himself. But one who gives mortis causa considers his own interests and, from love of life, prefers to have received something (back) rather than to have given it. This is why it is commonly said: “He wanted himself to have it rather than the donee, and this person (the donee) to have it rather than his heir.”
(Ulpian in the thirty-second book on Sabinus)
Julian, in the seventeenth book of his Digests, says that there are three types of gifts mortis causa. One occurs when someone gives a gift, not because he is frightened by fear of an immediate danger, but simply out of contemplation of his own mortality. He says that the second type of gifts style='font-style:italic'>mortis causa occurs when someone, stirred by an imminent danger, makes a gift in such a manner that it immediately becomes the property of the receiver. He says that a third kind of gifts mortis causa is when someone, motivated by danger, makes a gift in such a way that it becomes the property of the recipient, not immediately, but only when the donor dies.
1. Legalese. Paul gets to the essence of the Roman distinction between ordinary gifts and gifts mortis causa: the former become irrevocable once the gift is conveyed to the donee, while gifts mortis causa are regarded as somehow contingent on the donors actual death after the gift is conveyed. Paul tries to trace this distinction back to the donors intention: the giver of a “true and absolute” gift is spurred by altruism, while the giver of a gift mortis causa actually prefers to keep the gift but consigns it to a donee only because if he must die, he prefers that the donee rather than the heir have the object. Does this distinction seem plausible? How easy would it be, in practice, to recognize the difference?
2. Why Recognize Gifts Mortis Causa? Roman law anticipates that persons who wish to dispose of property after their deaths will do so through a will; “gifts” will thus take the form of a share in the inheritance or a bequest of some type. Why recognize a separate category for gifts in contemplation of death? Is this just being realistic—because many people will realize, on their deathbeds, that their wills are outdated and no longer reflect their desires? If gifts mortis causa had not been recognized, would this have stimulated Romans to keep their wills up to date? What other problems result from recognition of such gifts? For instance, what happens when the donor unexpectedly recovers?
3. When Is Death Imminent? Ulpian, citing Julian, writes of gifts made in consideration of one's “imminent death.” At D.
39.6.3-6, Gaius, Ulpian, and Paul list a series of circumstances that might impel us to fear that death is near: declining health; an attack by foreign enemies or robbers; “the cruelty or hatred of a powerful man”; an upcoming sea voyage or travel through dangerous places; and weariness brought on by old age. “All these,” says Paul (ibid. 6), “establish impending danger.” Is it to be presumed that any gift given close in time to one of these circumstances is motivated by fear of death? Are these various circumstances all functionally equivalent?4. Contemplating Mortality. Whatever impels legal recognition of gifts mortis causa, is that same rationale applicable to gifts made “simply out of contemplation of (the donors) own mortality”? As Paul (D. 39.6.35.4) says: “Sometimes, with no anticipated danger, a person who is well and in good health thinks of death as resulting from the human condition.” What problems of proof does this criterion raise? Could the jurists be thinking, perhaps, of a healthy hypochondriac who irrationally fears death and gives away all her property to friends? Should she be able then to reclaim it?
5. Forms and Revocability. Usually a gift mortis causa is simply handed over to the donee. If the donor survives the imminent danger, the gift can be recovered by suing for it or its value. Would it always be clear that the anticipated circumstances had passed? Can the donor recover if she simply changes her mind? See Ulpian, D. 39.6.30 (yes); how can this holding be explained? As to the two main types of gifts mortis causa described in this Case (the first subject to a condition that the gift is revoked if the donor survives; the second subject to a condition that the gift becomes valid only when the donor dies), which is likely to be more common? Which presents greater legal difficulties?