BOOK III. Pt. I. Ch. II, a § 136, ad fin. (B) On the other hand, the award itself is not of direct enforcement. Operation is only indirectly assured to it by stipulations (especially stipulatio poenae), by which the parties, already upon the appointment of the tribunal of arbitration, must mutually engage to obey the award. Id.: Ex compromisso placet exceptionem non nasci, sed poenae petitionem.-1. 2 eod.1 Id. Sed si poena non fuisset adiecta compromisso sed simpliciter sententia stari quis promiserit, incerti adversus eum foret actio.-1. 27, § 7 eod. Imp. Anton.: Ex sententia arbitri ex compromisso . . nec iudicati actio praestari potest, et ob hoc invicem poena promittitur, ut metu eius a placitis non recedatur.-C. 2, 55, 1.3 (3) The receptum nautarum, etc.'a § 129. PACTA LEGITIMA; DONATIO IN PARTICULAR. Of the informal agreements to which by enactment or customary Law (pacta legitima) actionability was in the later period accorded, without thus being ranged in the closed circle of civil contractus, the most imCf. C. 5, 11, 6. portant is the contract of DONATION. Paul. Legitima conventio est, quae lege aliqua confirmatur; et ideo interdum ex pacto actio wise Jul. writes that the arbitrator is under no compulsion if one party has pledged himself, the other not. 1 It is held that no plea arises out of a reference, but the claim of a penalty. 2 But if no penalty should have been attached to the reference, but a man should have given the simple promise that he would abide by the award, there would be an action against him incerti. 3 From the award of an arbitrator upon a reference, . . . the action for execution cannot be given, and on that account a penalty is mutually promised, that by fear of it there may be no departure from the contract. nascitur vel tollitur, quotiens lege vel senatus- 'Donatio' in the wider sense comprises every grant from pure liberality of a proprietary advantage, though it may be only a temporary one. Pap.: Donari videtur, quod nullo iure cogente conceditur.-D. 50, 17, 82.2 Pomp. In aedibus alienis habitare gratis donatio videtur; id enim ipsum capere videtur qui habitat, quod mercedem pro habitatione non solvit. Potest enim et citra corporis donationem valere donatio, veluti si donationis causa cum debitore meo paciscar, ne ante certum tempus ab eo petam.-1. 9 pr., D. h. t. (do donat. 39, 5).3 Donatio in the strict sense is only that voluntary and gratuitous alienation of an object of property which diminishes the property of the donor (donator), permanently augments that of the donee, and is done with the intention of enrichment (animus donandi) Iul. Dat aliquis ea mente, ut statim velit accipientis fieri nec ullo casu ad se reverti, et propter nullam aliam causam facit, quam ut liberalitatem et munificentiam exerceat: haec proprie donatio appellatur.-1. 1 pr. eod.* 1 A statutory convention is that which is confirmed by some statute; and accordingly sometimes an action arises or is extinguished by a bargain, whenever it is assisted by a statute or a decree of the Senate. 2 That appears to be presented which is granted under the compulsion of no right. 3 The occupation of another's house without payment is considered a donation; for there seems to be an acquisition by him in the very fact that he pays no hire for the occupation. For a donation can avail even without the present of a material thing, for example, if I for the sake of a present engage with my debtor that I will make no claim upon him before a time certain. Some one gives with the intention that the donee should at once become owner, and that (the thing) in no case should BOOK III. Pt. I. Ch. 11. BOOK III. Pt. 1. Ch. II. a Sc. inter virum et uxorem. Ulp. : —de finirisolet eam demum donationem impediri solere, quae et donantem pauperiorem et accipientem facit locupletiorem.-Si maritus heres institutus repudiet hereditatem donationis causa, Iulianus scripsit donationem valere: neque enim pauperior fit qui non adquirat, sed qui de patrimonio suo deposuit; repudiatio autem mariti mulieri prodest, si vel substituta sit mulier vel etiam ab intestato heres futura.-Simili modo et si legatum repudiet, placet nobis valere donationem, si mulier substituta sit in legato vel etiam si proponas eam heredem institutam.-Ubicumque igitur non deminuit de facultatibus suis qui donavit, vel etiamsi deminuat, locupletior tamen non fit qui accepit, donatio valet.-D. 24, 1, 5, §§ 8, 13, 14, 16.' Cic. Top. 8, 37: neque donationem sine acceptione intelligi posse." Ulp. Non potest liberalitas nolenti adquiri.— 1. 19, § 2, D. h. t.3 Every kind of property can be subject of donatio revert to himself, and he does it for no other reason than to exercise liberality and generosity: this is called a donation in the strict sense. 1 It is customary to fix the rule that only such a donation is commonly prohibited [that between husband and wife] as makes the donor poorer, the donee richer.-If a husband instituted heir renounce the inheritance for the sake of a present, Jul. has written that the donation is valid; for he certainly does not become poorer who does not acquire something, but he that of his own property has given something away; but the renunciation on the part of the husband benefits the wife, if the wife has either been substituted, or become heiress by intestacy.-In like manner we suppose that the donation also holds good if he should renounce a legacy, if the wife has been substituted in the legacy, or even, if you imagine the case that she has been instituted heiress. When, therefore, the donor has made no diminution in his property, or even if he diminish it, but the donee does not become richer, the gift is good. —and that a donation without acceptance is inconceivable. 3 A present cannot be acquired by a person against his will. and, according to its nature, the gift can be effected by the most various legal transactions-dare, obligare, liberare-as, for instance, by transfer of ownership, grant or surrender of a servitude, creation of a claim (e.g., by cessio), or release of the debtor from a liability. Gai. Iuliano placet, licet solvendo non sit debitor, cui acceptum latum sit, videri ei donatum. Per acceptilationem egens debitor liberatus totam eam pecuniam, qua liberatus est, cepisse videtur.-D. 39, 6, 1. 31, §§ 1, 4.' Iul. Cum ego Titio pecuniam donaturus te, qui mihi tantundem donare volebas, iussero Titio promittere, inter omnes personas donatio perfecta est. 1. 2, § 2, D. h. t. BOOK III. Pt. I. Ch. II. If the donation consist in an obligation of the donor for some performance, and so, in the creation of a claim. of the donee upon the donor, we speak of the contract or promise of donation. By Justinianean Law such a contract required no further form," whilst by older a Secus in Law it had to be clothed in a stipulatio. Vat. fgm. 263: Eam quae bona sua filiis per epistulam citra stipulationem donavit si neque possessionem rerum singularum tradidit, neque per mancipationem praediorum dominium transtulit, nec interpositis delegationibus aut inchoatis litibus actiones novavit, nihil egisse placuit.(Pap.)3 1 Jul. holds that, although the debtor to whom a claim has been released is unable to pay, a present would seem to have been made to him.-An indigent debtor released by acquittance is considered to have acquired the whole of that claim from which he has been discharged. When I, with the intention of presenting money to Tit., have directed you, who wished to present me with just so much, to promise it to Tit., a donation has been completed between all the parties. It was decided that the act of a woman was void who gave her property to her sons by letter without a stipulation, if she neither delivered possession of the several things, nor made over T T English Law (Brown, s. v) BOOK III. Pt. 1. Ch. 11. Perficiuntur autem (donationes) cum donator suam voluntatem scriptis aut sine scriptis manifestaverit et ad exemplum venditionis nostra constitutio eas etiam in se habere necessitatem traditionis voluit, ut, et si non tradantur, habeant plenissimum et perfectum robur et traditionis necessitas incumbat donatori.—§ 2, I. h. t. (de don. 2, 7).1 The donation can obtain both between living persons (donatio inter vivos) and in the event of death For the latter, (donatio mortis causa).“ cf. § 186. §148. A lex imperfecta: cf. Ulp. fgm. I. Ibid. pr. § 1: Donationum autem duo genera sunt mortis causa et non mortis causa.-Mortis causa donatio est, quae propter mortis fit suspicionem, cum quis ita donat, ut si quid humanitus ei contigisset, haberet is qui accepit: sin autem supervixisset qui donavit, reciperet, vel si eum donationis poenituisset aut prior decesserit is cui donatum sit.' Donations, both as regards the donee personally and their extent, were made subject to several restrictions. Gifts between spouses are entirely precluded. The 1. Cincia de donis et muneribus (A.U. 550), which was in full force at the time of the classical jurists, but became obsolete by desuetudo, allowed the ownership of lands by mancipation, and did not take fresh proceedings by interposing assignments or commencing suits. 1 Donations are completed when the donor has made known his intention with or without writing; and, as with a sale, our constitution has directed that they shall involve the necessity of delivery, so that, even if the things are not delivered, the present shall have entire and complete effect, and impose upon the vendor the necessity of delivery. 2 There are two classes of donations: in view of death, and not in view of death.-A donation mortis causa is one made through the apprehension of death, when a man making the gift upon the condition that, if any fatality should befall him, the donee shall hold it, but that if the donor should survive, or if he should regret the donation, or the person should first die to whom it was made, the donor shall get it back. |