Donatio Mortis Causa
There were in Roman law three kinds of
donatio mortis causa:
- 1. When a man, under no present apprehension of danger, but moved solely by a
consideration of human mortality, makes a gift to another.
- 2. When a man, being in immediate danger, makes a gift to another in such a manner that
the thing immediately becomes the property of the donee.
- 3. When a man, under the like circumstances, gives a thing in such a manner that it
shall become the property of the donee in case the giver dies. Every person could receive
such a gift who was capable of receiving a legacy.
It appears, then, that there were several forms of gift called
donatio mortis
causa; but the third seems the only proper one, and that of which mention is chiefly
made, for it was a rule of law that a donation of this kind was not perfected unless death
followed, and it was revocable by the donor. A thing given absolutely could hardly be a
donatio mortis causa, for this
donatio had a condition
attached to it—namely, the death of the donor and the survivorship of the donee. The
thing might be a thing capable of
traditio, or delivery, or it might be a
promise of a sum of money to be paid after the death of the testator. It would appear as if
the law about such donations was not free from difficulty. They were finally assimilated to
legacies in all respects by Justinian, though this had been done in some particulars before
his time. Still they differed in some respects from legacies, for such a donation could take
effect though there was no
heres; and a filius familias, who could not
make a will, might, with his father's consent, make a
donatio mortis
causa.
