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DONA´TIO

DONA´TIO or gift is an agreement between two persons, by which one gives without remuneration and without being under any legal obligation (nullo jure cogente), and the other accepts something that has a pecuniary value.

It is properly called an agreement, because it is not sufficient that there be a person to give; there must also be a person who consents to accept the gift. It is essential to the notion of gift that the giver gives in order that the property of the receiver may be increased by the gift: there must be the animus donandi. Further donatio in its strictly technical sense implies that the increase made by the gift to the property of the donee is caused by an equivalent diminution in the property of the donor. The object of gift may be anything which increases the property of the donee, as transfer of ownership or possession to him, entitling him to sue as creditor, releasing him from a debt. A gift of the whole of a person's property is not a case of universal succession; and consequently the [p. 1.689]several parts of the donor's property must be separately conveyed to the donee: hence, also, the donee does not incur any obligation to the creditors of the donor on account of the debts of the latter. The donor himself can, however, compel the donee to satisfy his debts from the property which the donee has received; for a donatio is regarded as comprising no more than the property after the debts are deducted. A gift of property made by an insolvent debtor was invalid as against his creditors.

According to Roman law, as it was in the time of the classical jurists, a mere agreement to give or pactum donationis was not legally valid; it was necessary either that the agreement should be in the form of a stipulation or carried out at once by delivery to the donee: but under the legislation of Justinian the donee could, sue the donor on a mere pactum donationis. (Cod. 8.34, 35.5; Inst. 2.7, 2.) The Lex Cincia de donis ac muneribus--a plebiscitum proposed by the tribune M. Cincius Alimentus, B.C. 204--placed restrictions on the amount which might be given by way of donatio; what the prescribed limit was is uncertain. (Savigny, Verm. Schr. 1.12; Huschke, Gaius, § 3.)

The limitations of the lex as to the amount which might be given did not apply if the gift was conveyed to the donee by in jure cessio or mancipatio, and if the donee acquired interdict possession of the property so conveyed. Certain classes of persons (exceptae personae) were excepted from the operation of the law. The Lex Cincia is a lex imperfecta; i.e., gifts made in violation of it were not void, nor were the parties who made such a gift subject to any penalty; but no action could be successfully maintained for enforcing a gift contrary to the law, since it could be met by the exceptio legis Cinciae. In the later period of Roman law the forms of in jure cessio and mancipatio became obsolete: hence a new form called insinuatio was used for perfecting gifts, which consisted in a declaration of gift made before a public functionary. Justinian only required insinuatio for gifts above 500 solidi in amount. If the formality of insinuatio was not observed, the gift was invalid as to all the amount that exceeded 500 solidi. Certain near relations of a man might after his death impugn the validity of a donatio inofficiosa, which he had made, by the querela inofficiosae donationis, and the donor could revoke his gift if the donee was guilty of such gross ingratitude towards him as was defined by statute. (Inst. 2.7; Dig. 39, 5; Cod. 8.54; Paulus, 5.11; Fragm. Vat. 260-316; Savigny, System, 4. § § 142-176; Schilling, Institutionen, 3.741-797.)

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