CASE 61: No Gifts

D. 24.1.1 (Ulpianus libro trigesimo secundo ad Sabinum)

Moribus apud nos receptum est, ne inter virum et uxorem donationes valerent.

D. 24.1.2 (Paulus libro septimo ad Sabinum)

ne cesset eis studium liberos potius educendi. Sextus Caecilius et illam causam adi- ciebat, quia saepe futurum esset, ut discuterentur matrimonia, si non donaret is qui posset, atque ea ratione eventurum, ut venalicia essent matrimonia.

D. 24.1.3 pr. (Ulpianus libro trigesimo secundo ad Sabinum)

Haec ratio et oratione imperatoris nostri Antonini Augusti electa est: nam ita ait: “Maiores nostri inter virum et uxorem donationes prohibuerunt, amorem hones­tum solis animis aestimantes, famae etiam coniunctorum consulentes, ne concordia pretio conciliari viderentur neve melior in paupertatem incideret, deterior ditior fieret.”

(Ulpian in the thirty-second book on Sabinus)

We have received the customary rule that gifts between husband and wife are in­valid. This rule was received so that they not each be ruined by mutual love, not sparing on gifts but with extravagance toward themselves,

(Paul in the seventh book on Sabinus)

(and) so that they not lose interest in further raising children. Sextus Caecilius (Africanus) adds also this cause: that it would come about that if he did not give when he could, marriages would break down, and so it would turn out that mar­riages were for sale.

(Ulpian in the thirty-second book on Sabinus)

This rationale is also derived from the legislative proposal (oratio) of our Em­peror Caracalla (reign: A.D.

1. Where Did the Rule against Gifts Come From? Ulpian describes the rule as of customary origin, but it cannot be very old (since it is inapplicable to manus marriages; you see why, don't you?). Possibly it arose as a response to the decline of manus, when the Romans came to realize that a wife not in the legal power of her husband might constitute a drain on the resources of the familia; for although the rule is applicable to both spouses, the legal sources speak much more often of gifts from husband to wife. If a scenario something like this is correct, there still remains the question of whether this rule is wise as policy. What principle is being protected?

color=black face="Book Antiqua">2.      Why? In this Case, the jurists offer several explanations: that gifts motivated by love would drain the spouses' estates, distract the couple's attention from procreation, introduce a venal element into the continuation of marriage, and operate to the benefit of the morally unscrupulous. Is any of this convincing? The legal sources repeatedly stress that the rule is not meant to deemphasize the significance of abiding marital affection. Is love purer if material exchange is discouraged? Septimius Severus later extended the rule to ban most gifts between relatives by marriage (Ulpian, D. 24.1.3.1-9).

3.      All Gifts? The intricacy of everyday life in a household meant that the policy against gifts could not be applied overly rigorously Here are a few examples:

•       “If a husband gave his wife an excessive present on Mothers Day or on her birthday, this is a (prohibited) gift” (Pomponius, D.

•       “A wife is held not to be enriched if she is given money that she spends on provisions or on perfumes or on food for the slaves” (Pomponius, D. 24.1.31.9); but see Scaevola, D. 24.1.58.1, for a somewhat harsher view (only if slaves are used by both parties).

•       “If the husband or wife uses slaves or clothing belonging to the other, or lives for free in the others house, the gift is valid” (Pomponius, D. 24.1.18).

•       “If the husband's slaves do some work for the wife or vice versa, the better view is that no account be taken of it (i.e., it is not a gift). And indeed the rule on prohibited gifts should not be applied harshly nor as between ene­mies, but as between those joined by the highest love and fearing poverty alone” (Paul, D. 24.1.28.2).

•       “When a man owes his wife money payable on a certain day, he can pay it now without danger of this being a gift, even if he could gain some time ad­vantage by keeping the money” (Pomponius, D. 24.1.31.6). What about the interest on the money?

•       “Between husband and wife a gift (of a slave) for manumission is allowed, either because freedom is favored or at any rate because no one is enriched by this” (Paul, Sent. 2.23.2). A freed slave owes services to a manumitter; isn't that a gift?

•       “You were about to leave a legacy or an estate to me. At my request, you can leave it to my wife, and this is evidently not a gift since nothing is lost from my property.

There are other more important exceptions, some of which are examined below.

4. What Happens to Improper Gifts? The jurists usually describe them as void, and it seems plain that ownership does not pass (since the giver can demand return of the gift, if it still exists, on the basis of ownership: e.g., Ulpian, D. 24.1.5.18). But gifts (or their value) are more usually reclaimed during a di­vorce, as part of the property settlement (see Case 83).

D. 24.1.5.5 (Ulpianus libro trigesimo secundo ad Sabinum)

Circa venditionem quoque Iulianus quidem minoris factam venditionem nullius esse momenti ait: Neratius autem (cuius opinionem Pomponius non improbat) venditionem donationis causa inter virum et uxorem factam nullius esse momenti, si modo, cum animum maritus vendendi non haberet, idcirco venditionem com­mentus sit, ut donaret: enimvero si, cum animum vendendi haberet, ex pretio ei remisit, venditionem quidem valere, remissionem autem hactenus non valere, quatenus facta est locupletior: itaque si res quindecim venit quinque, nunc autem sit decem, quinque tantum praestanda sunt, quia in hoc locupletior videtur facta.

size=1 color=black face="Book Antiqua">(Ulpian in the thirty-second book on Sabinus)

Also as regards sale (by one spouse to the other), Julian says that a sale at a lower price is void. But Neratius, whose view Pomponius does not reject, (said) that a sale between husband and wife is void only if the husband, without the intent to sell, faked a sale in order to give a gift.

1.      A Difference of Opinion? To what extent do Julian and Neratius disagree? Consider the following example: A wife's slave is worth fifteen on the open market; she sells the slave to her husband for five. Julian appears to hold the sale void under all circumstances. But Neratius makes a distinction between whether the wife actually wished to sell the slave or simply to make a gift to her husband. How can this be determined? (Suppose, for instance, that the husband immediately resells the slave to his wife for fifteen. Would it be dif­ferent if he resells for fifteen to a third party? Or if he simply keeps the slave?) If the wife actually wished to sell, then the sale is valid, but the difference be­tween the price and current value can be recovered, presumably usually dur­ing divorce proceedings. Is this distinction too cumbersome to implement?

2.      Imaginary Sales. Paul, Sent. 2.23.4: “Husband and wife cannot contract an imaginary sale with a view to making a gift.” Is an imaginary sale one in which an excessively low price is set, or one in which the price is just but the seller later declines to collect some or all of it? Ulpian (D. 24.1.32.26) indicates that the Romans usually drew no distinction between these two situations; is Ner- atius's view in this Case different? In general, it should be noted, classical Roman law, with forthright liberalism, permits the parties to set prices as they wish, nor is an element of express gift giving excluded; the husband/wife sit­uation is in this respect unique (see Ulpian, D.

D. 24.1.31 pr.-1 (Pomponius libro quarto decimo ad Sabinum)

(pr.) Sed si vir lana sua vestimentum mulieri confecerit, quamvis id uxori confec­tum fuerit et uxoris cura, tamen viri esse neque impedire, quod in ea re uxor tamquam lanipendia fuerit et viri negotium procurarit. (1) Si uxor lana sua, operis ancillarum viri, vestimenta sui nomine confecit muliebria, et vestimenta mulieris esse et pro operis ancillarum viro praestare nihil debere: sed viri nomine vestimenta confecta virilia viri esse, ut is lanae uxori praestet pretium: sed si non virilia vesti­menta suo nomine mulier confecit, sed ea viro donavit, non valere donationem, cum illa valeat, cum viri nomine confecit: nec umquam operas viri ancillarum aes­timari convenit.

(Pomponius in the fourteenth book on Sabinus)

(pr.) But if from his own wool a man makes clothing for his wife, although it was made for the wife and under her supervision, (a jurist holds that) it is still the husband’s, nor is it an obstacle (to this outcome) that the wife served as a spinner in this matter and oversaw her husband’s business.

(1)     If with her own wool, but using her husband’s slave women, a wife makes women’s clothing on her own behalf, (a jurist holds that) the clothing is the wife’s and she should give her husband nothing for the services of the slave women. But male clothing made in her husband’s name is the husband’s, pro­vided he pays his wife the price of the wool. But if the wife did not make men’s clothing in her own name but gave them to her husband, the gift is invalid, since it is valid (only) when she makes it in her husband’s name. But it is never appro­priate that the work of the husband’s slave women be appraised.

1.      Making Clothes. According to Gaius (Inst. 2.79), the jurists disagreed on the issue of manufacture, when, for instance, one person takes wool that belongs to another person and, without the owners consent, makes clothing from it. Some jurists held that the manufactured item belonged to the owner of its materials; others held that it belonged to the maker. Which view does Pom­ponius follow? Which view seems more sensible—or does it depend? See if you can work out the rules of this Case. Which of the hypothetical situations that Pomponius describes strikes you as the most difficult?

2.      An Apartment Building. A husband gives a vacant lot to his wife, who erects an apartment house on it. Who owns the building? In general, when a nonowner builds permanent structures on another persons land, they belong to the owner of the land; does that help you to answer? See Pomponius, D. 24.1.31.2, who awards the building to the husband but lets the wife hold the building until he pays compensation for her expenses; is that sufficient?