Gift (Donatio)
The final category that we need to address is that of gifts (donationes). The Romans distinguished two forms of gift, namely the donatio mortis· causa (the gift on account of death) and the donatio inter vivos (the gift between living persons).
Although these are often treated together, they are really very different. The donatio mortis causa is better considered as part of the law of succession, and is considered along with that in Chapter 16. Here we are concerned only with the donatio inter vivos.[2352] [2353] [2354]A gift was a unilateral donation of something. This was not necessarily an item of corporeal property, as the term ‘gift’ would normally be understood in the modern world. Rather, a gift could be anything that involved a donor giving up an asset in favour of a donee. For example, the unilateral discharge of a debt could be classified as a gift.
An agreement to make a gift was not considered to be a contract. It had, though, certain characteristics in common with contracts. Thus, an agreement to make a gift was a valid iusta causa for traditio2 or usucapio.2 The agreement was not itself enforceable, however, and so the person who promised to make a gift could not be compelled to do so. UnderJustinian, though, this changed: an undertaking to make a gift was held to imply an obligation to deliver.[2355] In effect, by this change, a promise to make a gift became a form of contract.
From time to time, attempts were made to control the giving of gifts. One prominent attempt was the lex Cincia of 204 BC, which prohibited gifts beyond a certain value[2356] to anyone outside a statutory list of (mostly) relations. Breach of the lex had, however, no direct consequences: there were no criminal sanctions and any transfer of property was valid.[2357] There were also long-standing restricÂtions on gifts between spouses.[2358] Under the emperor Constantine,[2359] a system of registration[2360] of gifts was introduced, with failure to register rendering the gift void.[2361] Under Justinian, all gifts over 500 solidi in value had to be registered.[2362] Higher gifts were void to the extent of the excess, with very limited exceptions.
As a general rule, gifts were irrevocable. Once the gift was given, that was that, although a gift by slave-owner to a former slave that he or she had freed could be revoked for the freedman’s ingratitude.[2363] Under Justinian, a more genÂeral right of revocation for ingratitude was recognised.[2364]