CASE 64: Exceptions

D. 24.1.14 (Paulus libro septuagesimo primo ad edictum)

Quod si vir uxori, cuius aedes incendio consumptae sunt, ad refectionem earum pe­cuniam donaverit, valet donatio in tantum, in quantum aedificii extructio postulat.

D.

Nuper ex indulgentia principis Antonini recepta est alia causa donationis, quam dicimus honoris causa: ut ecce si uxor viro lati clavii peteni gratia donet vel ut equestris ordinis fiat vel ludorum gratia.

(Paul in the seventy-first book on the Edict)

If a wife’s house has burned down and her husband gives her money for rebuild­ing it, the gift is valid for as much money as the building’s construction requires.

(Gaius in the eleventh book on the Provincial Edict)

Recently, through the kindness of the Emperor Antoninus Pius (reign: A.D. 138-161), another basis for a gift has been introduced, which we call “for the sake of honor”: for example, if a wife gives to her husband to enable him to seek senatorial or equestrian status or for games.

1.      A Slippery Rule. Particularly as the emperors assumed a more active legisla­tive role in Roman private law, the rule against spousal gifts gradually became riddled with exceptions. Try to decipher the logic that motivates each excep­tion, and then decide whether any overall pattern unites these exceptions. Fi­nancial emergencies, such as the wife's house burning down, almost invite a bit of flexibility; see Paul, D.

2.      Gifts Anticipating the End of Marriage. One situation in which gifts were permitted from a fairly early date was when the end of marriage was directly foreseeable. A good example is a gift a spouse makes mortis causa, in anticipa­tion of death; the validity of the gift is contingent on the spouse then actually dying (see, e.g., Ulpian and Gaius, D. 24.1.9.2, 10; also Cases 211-212). Analogously, one spouse may provide the other with a tomb, the gift becom­ing irrevocable when the donee or someone else is buried there (Ulpian, D. 24.1.5.8-11). The exception was then extended to gifts made divortii causa, in anticipation of an impending divorce; see Case 80 on the plausibility of this extension. Perhaps falling into the same category are gifts exilii causa, in an­ticipation of one spouses impending exile for a criminal offense (Paul, D. 24.1.43).

3.      A Meaningless Rule? “With all these exceptions, little substance was left to the prohibition. It might still serve a useful purpose as a check, to be judi­ciously applied, upon excessive generosity” (P E. Corbett). Do you agree?