CASE 212: Just Like a Legacy

D. 39.6.17 (Iulianus libro quadragensimo septimo Digestorum)

Etsi debitor consilium creditorum fraudandorum non habuisset, avelli res mortis causa ab eo donata debet.

D. 39.6.35 pr. (Paulus libro sexto ad legem Iuliam et Papiam)

Senatus censuit placere mortis causa donationes factas in eos, quos lex prohibet ca­pere, in eadem causa haberi, in qua essent, quae testamento his legata essent, quibus capere per legem non liceret..........................................................................

D. 39.6.37 pr. (Ulpianus libro quinto decimo ad legem Iuliam et Papiam)

Illud generaliter meminisse oportebit donationes mortis causa factas legatis com­paratas: quodcumque igitur in legatis iuris est, id in mortis causa donationibus erit accipiendum.

(Julian in the forty-seventh book of his Digests)

Even if a debtor did not intend to defraud his creditors, property that he gave mortis causa should be taken away. Since legacies in the will of an insolvent per­son are entirely void, it can be held that gifts made mortis causa should also be re­scinded, for they resemble legacies.

(Paul in the sixth book on the lex Iulia et Papia)

The Senate decreed that gifts made mortis causa to those whom the statute pro­hibited from taking bequests had the same status as property legated to those whom the law prohibited from taking bequests..................................................................................

(Ulpian in the fifteenth book on the lex lulia et Papia)

One should keep in mind that general principle whereby gifts made mortis causa are analogized to legacies. Therefore, any rule that holds for legacies must be ac­cepted for gifts mortis causa.

1. Defrauding Creditors. As might have been anticipated, Roman law contains a fairly rich body of legal rules designed to protect creditors from debtors who endanger repayment by dissipating their assets. For example, the lex Aelia Sentia (A.D. 4) established that slaves manumitted in fraud of creditors did not become free (Gaius, Inst. 1.37, 47); the “fraud” occurs when the debtor acts with knowledge of insolvency and to the detriment of creditors. In the case of wills, usually the heir is not obligated to perform beyond the resources of the estate (see, e.g., Papinian, D. 35.2.11.5), which means that, as Julian says, legacies from an insolvent inheritance are absolutely void; the creditors get first crack at the assets. How does it follow that gifts mortis causa should also be revocable?

2.      The Augustan Marriage Law. Under the lex lulia et Papia (two laws are here cited as one), adults who did not marry or who married but failed to bear children were penalized chiefly by losing eligibility for testamentary bequests in whole or in part, according to a complex series of rules. The senatusconsul­tum mentioned by Paul is of unknown date, though most scholars think it fol­lowed a decree passed in the reign of Vespasian (A.D. 69-79) that assimilated fideicommissa to legacies for the purpose of the marriage law. Why treat gifts mortis causa in the same way? Could this statute have preceded the rule given by Julian in the first text?

3.      The General Principle.

4.      Applications. Here are some more instances in which the analogy between legacies and gifts mortis causa is discussed; you should be able to work out the solutions.

size=1 color=black face="Book Antiqua">•       Usually, if a husband gives a gift to his wife (or vice versa), the gift is void­able; see Cases 61-65. Does this rule apply also to gifts mortis causa? See Ulpian and Gaius, D. 24.1.9.2-11 pr.

•       Can a fideicommissum be imposed on a gift mortis causa? See, for example, Papinian, D. 31.77.1.

•       If a person is incapable of taking under a will, can he or she receive a gift mortis causa? See Javolenus, D. 35.1.55.

Still, some significant differences remain. Above all, unlike with legacies (but like trusts), the validity of gifts mortis causa did not depend on the existence of a valid will (Marcian, D. 39.6.25).