Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

434 DONATIO. DONATi() MORTIS CAUSA.
as magnificent as in Greece; and it was more fre- It:wvas required by the legislation of Justinian;
quent among the Romans to show their gratitude that a gift which was in value more than 500 sotowards a god, by building him a temple, by public lidi, must, with the exception of some few cases,
prayers and thanksgivings (supplicatio), or by have the evidence of certain solemnities before
celebrating festive games in honour of him, than to official persons (insinuatio). If these formalities
adorn his sanctuary with beautiful and costly warks were not observed,.the gift was invalid as to all
of art. Hence the word donaria was used by the the amount which exceeded the 500 solidi. Some
Romans to designate a temple or an altar, as well few kinds of gifts, which exceeded 500 solidi, were
as statues and other things dedicated in a temple. excepted from the solemnities of insinuatio.
(Virg. Georg. iii. 533; Ovid, Fast. iii. 335.) The If then a gift was not perfected at once by deoccasions on which the Romans made donaria to livery, or what was equivalent to delivery, the
their gods, are, on the Whole, the same as those we donee might sue ex stipulatu, if there had been a
have described among the Greeks, ats will be seen stipulatio; and if there had not, he might sue by
from a comparison of the following passages:- virtue of the simple agreement. (Cod. 8. tit. 54,
Liv. x. 36, xxix. 36, xxxii. 30, xl. 40, 37; De Donationibus, s. 35. ~ 5.) The right of action
Plin H. N. vii. 48; Suet. Claud. 25; Tacit. Ansn. which arises from the promise to give is, according
iii. 71; Plaut. Amphitr. iii. 2. 65, Curcul. i.. 61, to the Roman system, the real gift (Dig. 50. tit.
ii. 2. 10; Aurel. Viet. Cues. 35;'Gellius, ii. 10; 16. s. 49): the actual giving was the payment of
Lucan. ix. 515; Cic. Doe Nat. Deor. iii. 37; a debt. Accordingly, if there was a promise of a
Tibull. ii. 5. 29; Horat. Epist. i. 1. 4; Stat. Silv. gift between a man and a woman before their
iv. 92. [L. S.] marriage, the payment during the marriage was a
DONA'TIO. Donatio or gift is anl agreement valid act, because the promise was the gift, and
between two persons by which one gives withosut the payment was not the gift. (Savigny, System,
remuneration and without any legal obligation &c., iv. 11 9) The heredes of a man might im(nullo jure cogente), and the other accepts some- pugn the validity of a donatio inofficiosa by a
thing that has a pecuniary value. (Dig. 24. tit. 1. querela inofficiosae donationis: and the donor could
s. 5. ~ 8, 16; 39. tit. 5. s. 19. ~ 2, 29.) It is revoke -his gift if the donee was guilty of gross
properly called an agreement, because it is not suffi- ingratitude towards him, as for instance, of offering
cient that there be a person to give: there must violence to his person. (Cod. 8. tit. 56. s. 10.)
also be a person who consents to receive. He who But the donor's claim was only in personam, all
is incapacitated to dispose of his property or to he could not recover the fruits which the donee
make a contract is consequently incapable of giving: had enjoyed. (Inst. 2. tit. 7. ~ 3; Savigny, Sysevery person who has a capacity to acquire, is t7ws, &c., vol. iv. ~ 142, &c., Schenkuzng; Mackelcapable of receiving a gift. The exceptions to dey, Lehrbuch, &c., ~ 421., &c., 12th ed.; Ortolan,
these rules occurred in the case of persons who Explication Historique des Instituts, vol. i. p. 472,
were in certain relations to one another, as pater 5th ed.) [G. L.]
and filiusfamilias; yet this exception itself is DONAITIO MORTIS CAUSA. There were,
subject to exceptions in the matter of peculium. according to Julianus (Dig. 39. tit. 6. s. 2), three
It is essential to the notion of gift that the giver kinds of donatio mortis causa: -. When a man
gives in order that the property of the receiver under no apprehension of present danger,'but moved
may be increased by the gift.: there must be the solelyby a consideration of mortality, makes a gift
animus donandi. The object of gift may'be any to another. 2. When a man, being in immediate
thing which accomplishes this end; for instance, danger, makes a gift to another in suc' manner
the release of a debt. A gift of the whole of a that the thing immediately becomes the property of
person's property comprises no more ithan the pro- the donee. 3. When a man, moved by the conperty after the donor's debts are deducted. Such sideration of danger, gives a thing in such manner
a gift is not a case of universal succession, and that it shall become the property of the donee
consequently the donee is not immediately liable only in case the giver dies. Every person could
for the debts of the donor. By the old Roman ilaw receive such a gift who was capable of recei-ving a
a mere agreement (pactum) to give did notieonfer legacy.
a right of action on the intended donee, In order It appears, then, that there were several forms
that a gift should be valid, it was required to be of gift called donatio mortis causa; but the third
either in the form of a stipulatio, or to be made is the only proper one; for it was:a rule of law
complete at once by the delivery of the thing. that a donation of this kind was not perfected usnGifts also were limited in amount by the lex Cincia. less death followed, and it was revocable by the
The legislation of Justinian allowed a personal donor. A thing given absolutely could hardly be
action in cases of a mere pactum donationis, where a donatio mortis causa, for this donatio had a conthere had been neither delivery of the thing which dition attached to it, namely, the death of the
was made a gift, nor stipulatio. (Cod. 8. tit. 54. donor and the survivorship of the donee. (Coms. 25, 29; 35. ~ 5; Inst. 2. tit. 7. ~ 2.) Thus, pare Dig. 39. tit. 6. s. 1 and 35.) Accordingly, a
the promise to give was put on the footing of a donatio mortis causa has been defined to be "a
consensual contract, when the promise related to a gift whichl a man makes with reference to the
gift of less than 500 solidi: when the gift Was event of his death, and so makes that the right of
above 500 solidi, a certain form was required, as the donee either commences with the death of the
will presently be explained, and the form was re- donor or is in suspense until the death." It required whether the gift wva perfected at once by sembles in some respects a proper donatio or gift:
traditio, -or was only a promise to give, in others, it resembles a legacy. It was necessary
If a man gave something to another for the that the donatio should be accepted by the donee,
benefit of a third person, the third person could sue and consequently there must be traditio or delivery,
hisii to whom the: thing was given. (Cod. 8. tit. or a proffer or offer, which is assented to. Yet
bs.b 3.) -- -- the donatio might be maintained as a fideicom-:~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~