Numărul 4 / 2013

In memoriam Mircea Mureşan

THE MUNICIFENT DONOR AND HIS REVENGE ON THE UNGRATEFUL DONEE: THEN AND NOW

Rena van den Bergh*

Abstract: This article focuses on the munificent donor and the ungrateful donee. Various relevant topics will be discussed, such as the nature of a donation, the requirement of registration and the circumstances that could lead to the revocation of a gift. The position in Roman, Roman-Dutch and South African law will be researched, with a view to determining whether and to what extent the latter two legal systems were built on Roman law.

Keywords: Donatio; donor; donee; donatio inter vivos; revocatio; lex Cincia de donis et muneribus; insinuatio; animus donandi; ingratitude; liberalitas; munificentia; generosity.

1          Introduction

According to Julian “when someone makes a gift with the intention that it should immediately become the property of the recipient and will not revert to himself in any circumstances, and he does this for no other reason than to practice liberality and generosity” this may be regarded as “a gift in the proper sense”.[1] A donation in Roman law may therefore be defined as “[a]n act of liberality by which the donor (donator) hands over or promises a gift to the donee with the intention to make a gift (animus donandi) and without expecting any reciprocal performance”.[2] By means of this act of liberality, the donee was enriched at the expense of the donor.[3] According to the Oxford Universal Dictionary a “munificent” person is one who is “splendidly generous in giving” or “characterized by splendid or princely generosity”.[4] Such a person would usually be regarded as superior and exceptional. The distinguishing feature of a gift is the underlying motive, namely the animus donandi or the motive of liberality.

Various rules governed gifts between the living (donationes inter vivos).[5] Firstly, public policy limited the amount or size of donations in order to curb extravagance. In early Roman law the right to make gifts was restricted by the lex Cincia de donis et muneribus, a plebiscitum dating from 204 B.C. and the size of gifts was limited to a specified maximum.[6]

Justinian abrogated this law and allowed unrestricted donations except in special cases, for example gifts between husband and wife (donatio inter virum et uxorem).[7] During the later Empire[8] a system of registration of all gifts, insinuatio, was introduced by Constantine.[9] According to Justinian, unregistered gifts whose value exceeded 500 (initially 300 hundred) solidi were void in respect of the excess.[10]

Secondly, gifts could only be made to certain people.[11] Thirdly, because there were so many kinds of gifts there were no formal requirements during the classical period. Delivery of a gift was, however, required for the transfer of ownership to the donee.[12] Fourthly, although initially gifts inter vivos were irrevocable, a right to revocation developed over time.

In this article I shall briefly discuss the nature of a donation and the registration of gifts and then focus on the revocation of gifts in Roman law. In addition I shall pay attention to these aspects of gifts in Roman-Dutch and South African law in order to determine to what extent Roman law underpinned modern law in this regard.

2          Roman law

2 1 What is a donatio?

A donation was regarded as a special kind of consensual contract since the donee did not have to do anything in return for the gift.[13] “Donatio” therefore comprised all transactions by means of which one person gave something to another out of pure liberality. Although the intention was not that the donee should do something in return for the gift, he was forbidden to do anything negative. Where a donation resulted in the transfer of a physical thing it was not a mode of acquisition, but a iusta causa in a contract.[14] During the post-classical period a donation was still only a causa.[15]

Classical lawyers regarded donation as a disposition for the benefit of another person, who would not have to do or pay anything in return for it.[16] Provided the donor acted with an animus donandi, a variety of legal acts constituted a donation.[17] During the classical period gifts were therefore not perceived as a special kind of transaction; they were regarded as merely providing a causa for various types of acts by means of which a person disposed of money, property or possessions in favour of another without receiving anything in return.[18]

Emperor Constantine approved of liberality and made large donations. His charitable attitude was inspired by the Christian principles which were gradually gaining ground at that time and which promoted acts of generosity and charity.[19] In his time donations gave rise to many problems that he wished to clarify. He acknowledged them as valid legal transactions. He considered a donation to be a bilateral act that was performed instantly and resulted in the immediate transfer of ownership from the donor to the donee.[20] It was no longer the causa of the transfer; it was now one of its modes. This was in line with the general development of post-classical law away from the classical distinction between an obligatory act and the transfer of ownership.

During the post-classical period a donation was consequently an agreement in terms of which one person would donate something of value to another (who accepted it) without being paid for it. The donor had to have the intention, based on his liberalitas, to make a donation (animus donandi), which could only be revoked under certain exceptional circumstances.[21]

Since Constantine’s well-meant reforms had created new problems, Justinian decided to simplify and restate the law relating to donations. Like Constantine, Justinian favoured acts of liberality and promoted generosity and he, too, was influenced by the teachings of Christianity.[22]

To a certain extent he revived the classical concept, thus distinguishing between the obligatory contract and those acts required to fulfil the obligations flowing from the contract.[23] Once again the promise of a gift (which could be an informal agreement between the parties[24]) became binding and enforceable.[25] Thus Justinian created a new contract, namely donation.[26]

By the time of the Justinian period the promise or agreement to give a gift was therefore considered to be a legal agreement (pactum legitimum) constituting a binding consensual contract.[27] In donations as well as other contracts in which only one party did or gave something, the agreement was constituted by the acceptance.[28]

In Codex 5.16.27.1 Justinian provided general guidelines for the application and reform of the law of donations. The donor’s intention to donate was acknowledged as the distinctive element establishing a donation. Julian’s definition of a donation in the Digest text[29] emphasises the donor’s noble spirit. He was required to have been moved to perform an unselfish act of liberality. It is interesting that Zimmermann mentions Paul’s “cheerful giver”[30] in this regard. There is some reasonable and just motive for the donor’s act, such as the mere pleasure of doing good.

In Justinian’s law donations were governed by a number of rules, of which I shall now discuss a few.

2.2 Registration of gifts exceeding 500 solidi

Justinian determined that gifts exceeding, initially, 300 solidi,[31] and thereafter 500 solidi, had to be registered in court by the donor (insinuatio).[32] This would, inter alia, formally manifest the donor’s intention of munificence. Apart from the fact that large gifts were generally frowned upon,[33] official registration was an indication that large gifts were exceptional and brought them into the public domain. The recipients of such generous gifts were expected to appreciate them. The emperor could keep the donees under close scrutiny to prevent munificent donors from being humiliated or maltreated. It would therefore be known that the gifts had indeed been given if the donor wished to revoke the gift because of ingratitude.

2 3 Revocation of gifts

Gifts were generally not revocable.[34] In the Institutes, Justinian explicitly states that donationes inter vivos, once given, cannot easily be reclaimed.[35] Once a donor had made his will clear the gift were complete.[36] However, in respect of ordinary gifts a right of revocation on the ground of ingratitude was gradually introduced, and much of this legislation has survived. This was consistent with introducing good ethics into the law of donations, closely examining the donor’s motives and determining whether the donee’s conduct measured up to certain minimum standards.

During the third century Emperor Philip declared that a gift made by a patron to a freedman(libertus) was revocable if he became ungrateful and insolent.[37] Subsequently, in A.D. 349, Constantine and Constans granted to certain mothers the right to revoke gifts made to children if they proved ungrateful.[38] The right to revocation was gradually extended to other donor/donee relationships.[39] In the year A.D. 426 Theodosius and Valentinianus determined that neither a father, grandfather nor great-grandfather could revoke donations to a son or daughter, grandson, granddaughter or great-grandson or great-granddaughter who had been emancipated, unless clear evidence proved that the person to whom the donation had been made was guilty of a lack of filial affection and gratitude to an extent recognised as sufficient in law.[40]

Subsequently Justinian in a constitution determined that for certain reasons, donors could revoke their gifts. This was to ensure that a donor would not injure or harass an ungrateful recipient of a gift.[41] Justinian then extended revocation on the grounds of ingratitude to cover all donees, expressly limiting the grounds for revocation[42] to the following types of ingratitude towards the donor: extreme insults or violent behaviour towards him; treachery causing him to suffer heavy pecuniary loss, thus decreasing his estate; or exposing him to a life-threatening situation.[43]

The emperors were obviously concerned about the feelings of munificent donors who were maltreated by ungrateful donees. They did not wish the donor’s liberality to be scorned by an ungrateful beneficiary.[44] The reason for the introduction of the right of revocation was therefore the wish to “punish” the ungrateful donee.

The donor was allowed to revoke a gift, but his successors were not. In Codex 8.55(56).1.3 Emperor Philip stated that the right of revocation was reserved to those who had made the gift and did not extend to their children or heirs.[45] Subsequently the Emperors Constantius and Constans declared that a mother’s right to revoke a gift was a personal one that could not lie “against an heir or be transferable to an heir”.[46] Actions for revocation could consequently not be instituted against the successors of either the donor or the donee. Justinian confirmed this when, in A.D. 530, he decreed that the provisions on revocation applied only to the original parties (“primas personas”).[47] The emperors seemed to agree that if the donor himself did not revoke the gift during his lifetime because of ingratitude shown to him,[48] no one else should act against the ungrateful donee. No action relating to the gift could be instituted against the successors of either the donors or the donees.

If revocation was sought, a judicial enquiry into the allegation of ingratitude was required. Only if there was ingratitude of the type mentioned above that was proved in court by indisputable evidence, might donations be revoked.[49] The effect may have been to revoke the gift in rem or to give a remedy in personam. In Justinian’s law, where appropriate, a vindicatio utilis was allowed,[50] which indicates that ownership was considered to revert automatically to the donor. The effect of the decree seems to have been the ipso facto forfeiture of the gift.[51]

3          Roman-Dutch law

3 1 What is a donation?

In Roman-Dutch law a donation or gift was considered to be a consensual contract.[52] A distinction was drawn between the contract, which binds the parties, and the transfer, which passed the property.[53]

De Groot (1583-1645) defines a donation or gift as a promise in terms of which a person out of liberality binds himself to give something to another without receiving anything in return.[54] According to Simon van Leeuwen (1626-1682) a donation may be described as a voluntary delivery to another, through liberality, of something for no cause (except liberality).[55] Voet (1647-1713) says that “the generous and permissible giving or promising of something” may be regarded as a donation[56] and Van der Linden (1756-1827) regards a gift or donation as an agreement in terms of which a person through liberality irrevocably gives something to another who accepts it.[57] The abovementioned definitions of donation by some of the most important Roman-Dutch authors lead to the conclusion that the characteristic feature of a donation or gift in Roman-Dutch law was that it was given out of liberality. De Groot expands on this, stating that the words “out of liberality” are specifically important for they indicate that it might otherwise be presumed that the promise had been made out of ignorance and would not give rise to a legal obligation.[58]

3 2 Registration of gifts

There is some uncertainty about the Roman-law rule that gifts in excess of 500 aurei had to be registered in Roman-Dutch law. According to De Groot, “as a restraint upon excessive liberality”, Roman law provided that no donation exceeding 500 aurei would be valid unless it was reported and registered.[59] He further says that he found no reference to such acts in Roman-Dutch law, “perhaps because excessive liberality has not been known here”. Van Leeuwen doubted whether the Roman-law rule, declaring gifts in excess of 500 aurei invalid in order to prevent “excessive and inconsiderate liberality” unless confirmed by a legal document before the local magistrate, was still valid among the Dutch.[60] However, he argued that since it had never been formally abolished it should be accepted that it was still valid.[61] Voet states that this rule was indeed admitted into Roman-Dutch law and had not been changed by any statute or usage.[62] Later Van der Keessel (1738-1816) confirmed that the Roman-law rule that gifts in excess of 500 aurii must be registered had been adopted by the Dutch.[63] This registration could, however, be replaced by a solemn cession of immovable property made in court or in the case of movables a declaration before a notary and witnesses. Van der Linden, with reference to De Groot 3.2.15, stated that the Roman-law rule that gifts might not exceed 500 aurei was no longer in force “in that form” in Holland.[64] However, immovable property given as a gift had to be transferred before the court.

Despite these contrasting opinions it may be accepted that the rule was indeed adopted in Holland, but not widely applied. The reason may merely have been that the Dutch were not known for their liberality and that very few gifts in excess of five hundred aurei were given. There do not seem to have been many liberal donors. However, once the donation had been registered or a cession or declaration had been made, the gift had been formalised. There were thus witnesses to an act that seems to have been rather exceptional: gifts of such liberality were not the norm and their formalisation could afterwards protect the donor if he was treated with gross ingratitude and wished to revoke the gift.

3 3 The revocation of gifts

As in Rome, donations were in principle irrevocable. However, there were exceptions to this rule. De Groot started off by stating that as a rule gifts were irrevocable, but in the very next paragraph he said that they might be revoked in certain circumstances.[65] He then mentioned various grounds for revoking a donation, but did not making any specific mention of ingratitude on the part of the donee. Examples of such grounds were that the donee had threatened the donor’s life or struck him, or attempted to ruin him financially.[66] In addition, malicious slander and any other great injury could also lead to revocation. With reference to the revocability of donations, Leeuwen stated that gifts might be revoked and cancelled because of “great ingratitude and injury” done to the donor.[67] He mentioned a few examples of such deeds, for instance the donee had made an attempt on the life of the donor or attacked him violently or harmed his reputation, had denied assistance to a donor who was living in reduced circumstances, and the like.[68] Voet explicitly mentions five grounds for revoking a gift to an ungrateful  donee, even though the donor had sworn not to revoke.[69] Such an oath was void since it could tempt a donee to do wrong and would imply that the donor had formally undertaken to forgive the donee for any future offence.[70] The grounds for revocation mentioned by Voet are “when the donee has laid wicked hands upon the donor, or has contrived a gross and actionable wrong, or some huge volume of sacrifice or a plot against his life, or has not obeyed conditions attached to the donation”.[71] According to Van der Linden, although valid donations were by nature irrevocable,[72] they could be revoked under certain circumstances such as the donee’s gross ingratitude and ill-treatment of the donor.[73]

In Roman-Dutch law the right of revocation was available to all donors, but not to their children or grandchildren. It is interesting to note that neither Maasdorp’s translation of De Groot’s Inleidinge tot de Hollandsche Rechts-Geleerdheid (An Introduction to Roman-Dutch Law)[74]nor the Fockema-Andreae-edition[75] mentions this.In the Dovring-translation of De Groot, an additional sentence in 3.2.17 states that the donor’s successors were not entitled to revoke donations because of the donees’ ingratitude.[76] Voet likewise states that an action to revoke a gift on the grounds of ingratitude does not pass to and against heirs.[77] The revocation of gifts because of ingratitude was probably thought to avenge the wrong the donee had committed against the donor and was therefore not granted to or against an heir.[78] The action was limited to the wronged donor and if he had suffered in silence at the hands of the donee, his successors could not institute an action against the ungrateful donee or his successors.[79]

Voet explains that this is what the Emperors (Philip and Justinian) intended when they said that the revocation of a gift on the ground of ingratitude would be personal in the sense that it had the effect of punishment or vengeance and could consequently not be granted to or against an heir.[80] He asserts that since the revocation of a donation on the grounds of the donee’s ingratitude involves avenging the wrong inflicted on the donor by the ungrateful donee, it is certain that the relevant action could not be granted to the children of either the donor or the donee.[81]

4          South African law

4 1 What is a donation?

A donation, in South African law, is a contract, which must therefore comply with all the requirements of the law regarding contracts.[82] Thus the general rule that acceptance is necessary applies to the contract of donation in South Africa.[83] Maasdorp, with reference to various Roman-Dutch authors, simply defines a donation in South African law as follows: “A donation is an agreement whereby a person, who is under no legal obligation to do so, gives, or promises to give, something to another, without receiving or stipulating for anything in return.”[84] In Malaba v. Malaba Judge Ndou stated that “a donation, schenking, is a contract whereby one person, who is not under obligation to do so, but out of sheer liberality, promises to give another person something without receiving anything in return. ... The motive should be a disinterested benevolence and for moral purposes”.[85] As in Roman and Roman-Dutch law, the distinguishing feature of a donation is the motive of liberality, the animus donandi. It is interesting to note that these modern-day South African definitions make use of essentially the same words and formulations as are found in the Roman and Roman-Dutch law definitions of a donation.

4 2 Registration of gifts

South African courts decided early on to follow Roman and Roman-Dutch law practices regarding donations and determined that gifts exceeding 500 aurei had to be registered in the Registry of Deeds in order to be valid.[86] The courts then attempted to determine what the present-day value of an aureus was and in Thorpe’s Trustees v. Thorpe’s Tutor De Villiers C.J. stated that an aureus was worth one sovereign sterling.[87] A donation would be revocable in respect of the amount exceeding ₤500 unless it was registered in the Deeds Office or embodied in a notarial deed.[88] The General Law Amendment Act of 1956,[89] which was later replaced by section 43 of the General Law Amendment Act of 1968, introduced some changes. Donations made after this legislation came into force are not invalid merely because they are not registered or notarially executed. Such executory contracts must, however, be embodied in a written document signed by the donor or by a person acting on his written authority granted by him in the presence of two witnesses in order to be valid.[90] In Avis v. Verseput J.A. Tindall stated that complying with the formal requirement of registration (insinuatio) was in the interests of the donor and his heirs. It gave the donor time to reconsider his donation and become more cautious so that the interests of his heirs were safeguarded.[91] The munificent donor’s impulsive liberality was therefore inhibited and he was granted some kind of protection.

4 3 Revocation of gifts

In South African law, as in Roman and Roman-Dutch law, it is generally accepted that donations inter vivos may be revoked because of the “gross” ingratitude of the donee.[92] The onus is on the donor claiming revocation to prove that the motive for the transfer of the property to the donee was sheer liberality or generosity, in other words, a donation.[93] The donor’s only aim is to benefit the donee. He is entitled to revoke the donation on the ground of ingratitude, even though he may previously have expressly agreed otherwise. Voet’s list of acts constituting gross ingratitude has been quoted and accepted in South African case law and other legal literature.[94] The ingratitude must be of a sufficiently serious nature and it has been stated that it must be accompanied by dolus.[95]

From the South African common law and case law it appears that ingratitude would be an acceptable reason for revocation of a gift.[96] In Malaba v Malaba, for example,it was stated that a donation could be revoked in exceptional circumstances, namely gross ingratitude on the part of the donee or ill-treatment by him/her of the donor.[97] Since it was found that there was no donation in this case, the donee’s ingratitude was not relevant.

Although “dolus”was not a requirement for ingratitude in Roman and Roman-Dutch law, and it had not been expressly stated in South African law, it now seems that the ungrateful donee may be required to have acted with dolus. As early as 1943, A.J.A. Fischer said “the plaintiff wilfully and maliciously caused the defendant great inconvenience and loss”.[98] A person acting “wilfully and maliciously” may certainly be said to act with dolus. Many years later, in 2005, Owens stated that in that the ingratitude on the part of the donee had not only to be sufficiently serious, it also had to be accompanied by dolus.[99] Then, in 2006, the judgment in Fenton v. Fenton showed Mrs. Fenton to have undoubtedly acted wilfully and caused the donor great unhappiness.[100] From the evidence in that case it appears that the plaintiff’s son and daughter-in-law maltreated, insulted and shouted at Mr. Fenton’s elderly father (the donor), who was eventually told to leave the house. A.J. Mabuso found that “their act of ordering the plaintiff out of their house in that manner” could be regarded as an act of ingratitude. The plaintiff was consequently entitled to revoke his donation. a

The right to revoke a gift because of the donee’s ingratitude does not devolve on the heirs or successors of the donor.[101]

5          Conclusion

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