CASE 65: Severan Reforms
Fragmenta Vaticana 276 (Divi Diocletianus et Constantius... iae)
Si pater tuus nomine matris tuae de sua pecunia fundum comparavit donationis causa eique tradidit et decedens non revocavit id quod in eam contulisse videtur, intellegis frustra te velle experiri, cum oratione divi Severi huiusmodi donationes post obitum eorum, qui donaverunt, confirmentur.
(The Deified Diocletian and Constantius, to a woman; A.D. 290)
If, in the name of your mother but using his own money, your father bought a farm as a gift and handed it over to her, and before his death he did not revoke that which had evidently been bestowed on her, you do understand that your wish to sue (for recovery of the farm) is ineffectual, since by the legislative proposal (oratio) of the deified Emperor Septimius Severus such gifts are confirmed after the death of the donors.
1. Why the Reform? This late classical change in the law dates to A.D. 206 and is widely reported, usually with references to the emperors oration proposing the legislation to the Senate (a portion of this oration is quoted in Case 61). The essence of the change is summarized by Diocletian: when one spouse gives another a gift that is normally impermissible, that gift becomes irrevocable if the donor subsequently dies while still married and without a change of mind. Explaining the reform, Ulpian (D. 24.1.32.2) quotes the emperor: Revocation “is proper if the donor changes his mind; but it is harsh and stingy that an heir (of the donor) seize (the gift) perhaps against the donor's last wishes.” What is the policy argument here? That since the gift is effective only on the donors death, it should be considered as a sort of gift mortis causa? (So Ulpian, ibid. 3.) If the donee dies first, the gift can be reclaimed.
What if both die at the same time or in circumstances where priority of death cannot be established? Ulpian considers this problem too (ibid. 14): the donor is construed as having died first; and this is true even if they had exchanged gifts! This decision suggests a legal policy in favor of upholding gifts.2. Divorce. Under the reform, the gift becomes ineffective if the couple divorce before the donors death (Ulpian, D. 24.1.32.10-13, a part of which is quoted as Case 17). Why should divorce be treated differently from death?
3. Change of Intention. Of course, the Severan reform contains a major loophole: the gift is confirmed only if the donors mind did not change. How can this be known? Ulpian (D. 24.1.32.5) suggests an indirect proof: a husband gives his wife some land and then uses the land as collateral for a loan. Is the gift thereby rescinded? (Yes.)
4. Promise of Gift. The sources divide as to whether the Severan reform validates a stipulation to give a gift in the future, where the promisor dies before fulfilling the promise: see Ulpian, D. 24.1.23, as against Ulpian, ibid. 33 (Ulpian v. Ulpian!).