until the death of the donor the revocation of every gift exceeding a certain-unknown-limit (donatio immodica), by means of an actio or exceptio (or replicatio) in case they were not (1) already effected completely juristically and materially (donatio perfecta)." BOOK III. Pt. I. Ch. II. According to another opinion, of every donatio Vat. fgm. 259: Mulier sine tutoris auctoritate praedium stipendiarium instructum non mortis immodica and of every donatio causa Latino donaverat perfectam in praedio non perfecta. ceterisque rebus nec mancipi donationem esse apparuit, servos autem et pecora, quae collo vel dorso domarentur, usu non capta. Si tamen voluntatem mulier non mutasset, Latino quoque doli profuturam duplicationem respondi-non enim mortis causa capitur quod aliter donatum est: quoniam morte Cincia removetur.(Papin.)bi Ib. §§ 310-311: Perficitur donatio in exceptis personis sola mancipatione vel promissione, quoniam neque Cinciae legis exceptio obstat neque in factum si non donationis causa mancipavi vel promisi me daturum.'-Sed in persona non excepta sola mancipatio vel promissio non perficit donationem; in rebus mobilibus, etiamsi traditae sint, exigitur, ut et interdicto utrubi superior sit is cui res donata est, sive mancipi mancipata sit, sive nec mancipi tradita.—(Paul.)2 1 A woman, without the consent of her guardian, had given to a Latin, subject to a ground-rent, an estate with every convenience, but not mortis causa: it appeared that the gift was complete in respect of the estate and other things nec mancipi, but that the slaves and cattle which are tamed by collar or saddle were not acquired by use. But the opinion I gave was that, if the woman did not alter her intention, the twofold evasion of the law would also benefit the Latin-for a thing is not acquired mortis causa which has otherwise been presentedsince the Cincian law is defeated by death. 2 In respect of persons excepted, a gift is made perfect by mere mancipation, or by promise; since neither does the plea of the 1. C'incia hinder even as against the fact: If I did not Cf. Gai. ii. §§ 80, sqq.; ib. 47, Vat. fgm. I. BOOK III. Pt. I. Ch. 11. Ib. § 266: Si quis contra legem Cinciam obligatus non excepto solverit, debuit dici repetere eum posse: nam semper exceptione Cinciae uti potuit, nec solum ipse, verum, ut Proculeiani contra Sabinianos putant, etiam quivis, quasi popularis sit haec exceptio; sed ut heres eius, nisi forte durante voluntate decessit donator: tunc enim doli replicationem locum habere, imperator noster rescripsit.-(Ulp.)1 Iavol. Fideiussori eius, qui donationis causa pecuniam supra modum legis promisit, exceptio dari debebit etiam invito reo.-1. 24, h. t. Cels. Sed si debitorem meum tibi donationis immodicae causa promittere iussi, an summoveris donationis exceptione necne, tractabitur. Et meus quidem debitor exceptione te agentem repellere non potest, quia perinde sum, quasi exactam a debitore meo summam tibi donaverim et tu illam ei credideris. Sed ego, si quidem pecuniae a debitore meo nondum solutae sint, habeo adversus debitorem meum rescissoriam in id, quod supra legis modum tibi promisit, ita ut in reliquum tantummodo tibi maneat obligatus: sin autem pecunias a debitore mancipate so as to make a gift, or promise that I would give it.' But in respect of a person not excepted, mere mancipation or promise does not make the gift perfect. In movables, even if they have passed by delivery, it is required that also by the interdict utrubi he be in a better position to whom the gift has been made, whether the delivery have been of a thing mancipi or nec mancipi. 1 If any one have in violation of the 1. Cincia bound himself, and paid money to a person not excepted from such statute, it ought to be stated that he can reclaim it; for he could always employ the Cincian plea, not himself only, but also, as the Proculeians suppose against the Sabinians, any one, as if this plea were a 'popular' one; but his heir also, unless perhaps the grantor died while his intention remained; for our Emperor's rescript was that the replicatio of fraud then attaches. 2 To the surety of him who, for the sake of a present, has promised money beyond the limits of the statute, a plea will have to be allowed even against the will of the debtor. Pt. I. Ch. II. meo exegisti, in hoc, quod modum legis excedit, BOOK III. (2) Or was not made to certain persons nearly related (personae exceptae). a a torum. 1. c. § 299 Quinque gradus pleni excepti Sc. cognasunt et ex sexto una persona, sobrinus et sobrina. § 300 Excipiuntur et ii, qui in potestate eorum vel manu mancipiove, item quorum in potestate manu mancipiove erunt. § 304: Excipiuntur et adfinium personae, ut privignus privigna, noverca vitricus, socer 30crus, gener nurus, vir et uxor, sponsus sponsa. § 304 Excipit tutorem, qui tutelam gerit, si dare volet: nam quia tutores quasi parentes proprii pupillorum sunt, permisit eis in infinitum donare. § 307: Item excipit: 'si quis servis suis . . . accipit.' His verbis . . . liberti continentur, ut patronis dare possint. § 309: Contra an item liberti a patronis excepti sunt? Et hoc iure utimur, ne excepti videantur. ? uˆ. -(Paul.)* 1 But if I have directed my debtor to make a promise to you, for the sake of a present, of an excessive amount, the question will be, whether you can be defeated by the plea of the donation. My debtor indeed cannot by the plea rebut you if you sue, because I am to be regarded just as if I presented to you the sum enforced by my debtor, and you credited him with it. But if the money have not yet been paid by my debtor, I have an action for revocation against my debtor for that which he promised to you beyond the limit of the statute; so that he remains liable to you only for the residue; but if you have recovered the money from my debtor, I have a condictio against you for that which exceeds the limit of the statute. * Five degrees (i.e., of representatives) are excepted in full, and one person from a sixth degree, a cousin-german of either sex. They too are excepted who are under the potestas, or manus, or in the mancipium of such; likewise those under whose potestas and manus or in whose mancipium they shall be.Excepted also are some persons among the next-of-kin, as a step-son, step-daughter, step-mother, step-father, father-in-law, mother-in-law, son-in-law, daughter-in-law, husband and wife, BOOK III. Pt. I. Ch. II. Cf. Moyle on Inst. i. II, 12. Excepted are certain kinds of gifts. Ib. § 305: Item excipit: si quis mulieri virginive cognatus dotem conferre volet'; igitur quocumque gradu cognatus dotis nomine donare potest.' Paul. v. 11, § 6: Ei, qui aliquem a latrunculis vel hostibus eripuit, in infinitum donare non prohibetur (si tamen donatio et non merces eximii laboris appellanda est): quia contemplationem salutis certo modo aestimari non placuit.* The form of judicial insinuatio'a (declaration made in court, professio apud acta) was prescribed for gifts to non exceptae personae, and by Constantine for all gifts; but after many fluctuations of legislation, this form continued to be requisite in the latest Law (a constitution of Justinian of 531) alone for gifts above 500 solidi, with some exceptions. Omission of the insinuatio leads to the invalidity of the gift, so far as it exceeds the amount named. In the older Law, the patron could at discretion revoke the gift he had made to his libertus; later on, only in certain cases; but according to the Law of betrothed persons of either sex.-It excepts the guardian, who exercises a tutela, if he desire to make such gift; for, inasmuch as guardians are strictly like parents of the wards, it permitted them to make gifts without limit.-A further exception is: 'whoever accepts from his slave.' Freedmen are comprised in these words, that they can give to their patrons. On the other hand, can freedmen be excluded likewise by the patrons ? This law also we employ lest they may be regarded as excluded. 1 It contains also the following exception: 'Whatever cognate desires to bestow a gift on a woman or a maiden'; and so a cognate in any degree can make a gift under the name of dos. No restriction is placed upon a perpetual gift to him who has delivered any one from highwaymen or enemies (though it have to be called a donatio, and not a reward for extraordinary service); because it has not been thought well to put a fixed valuation upon regard for safety. Justinian every gift is revocable for base ingratitude of the donee, except such gifts as are mentioned in Paul. v. 11, § 6, supra. § 130. OBLIGATIONES EX DELICTO IN GENERAL." BOOK III. Pt. I. Ch. II. a See 'Anct. Law,' pp. 367 8. 600, also See Anct. Law,' pp. 372, Stephen, His. Crim. Law of DELICTA privata-in contrast with publica, i.e., 372: Mkby. crimina―are illicit and illegal acts, which ground ch. xvi. independent obligations. The object of the obligation is either compensation for the injury done, or payment 892., and of a pecuniary penalty (poena sc. privata) to the party tory of the injured, or, as a rule, both at the same time: actiones rei persecutoriae, poenales, mixtae. The wrongdoer is, ch. ii. as a rule, only responsible for dolus, sometimes indeed for culpa. Finally, all obligationes ex delicto agree in being passively untransmissible.d-In the course of a § 25. time the delicts committed by dolus admitted also of criminal prosecution, so that the party injured had the choice of public or private redress. § 131. FURTUM. FURTUM is the corporal dealing with a movable thing, done with intent to obtain an illegal advantage by its appropriation (dolus, animus furandi), by which dealing some one, violating property of another, illegally usurps the thing itself, if it be another's; or the use of it, if it be entrusted to him; or the possession of it, if, while it is his own, it is in the disposition of another.f Paul. Furtum est contrectatio rei fraudulosa lucri faciendi gratia: vel rei ipsius, vel etiam usus eius possessionisve.-1. 1, § 3, D. h. t. (de furt. 47, 2).1 Cels. Infitiando depositum nemo facit furtum; nec enim furtum est ipsa infitiatio, licet prope 1 Theft is the fraudulent meddling with a thing in order to make profit, either with the thing itself or even the use or possession of it. с Inst. iv. 6. §§ 16-18. d |