DONA´TIO INTER VIRUM
DONA´TIO INTER VIRUM,
ET UXOREM. It
was a rule of Roman law, which had its origin in custom, that neither
husband nor wife could during marriage make a gift of anything to one
another. The object of this rule is said to be the preservation of the
marriage relation in its purity, as an agreement subsisting by affection and
not one which should be maintained in a discreditable manner by means of
gifts from one party to the other. Thus one married person was prevented
from taking advantage of the weakness of the other. The wife required this
protection as well as the husband, because, when there was no
conventio
in manum, the wife retained all rights of
property not surrendered on her marriage [Dos], and she might during the
marriage acquire separate property. Only a
donatio by which the donor's property is lessened is within the
prohibition. A
donatio is not invalid under
this law unless made between persons actually married, so as to take effect
during the continuance of the marriage: thus a valid gift might be made
between a man and a woman before or after marriage, or even during marriage,
if it was not to take effect till after the marriage. In accordance with the
above rule contracts and conveyances between husband and wife had no effect;
thus stipulations were not binding:
mancipatio, in jure
cessio, and
traditio conveyed no
ownership; property which had been made over could be recovered by action.
The rule could not be defeated in an indirect manner by means of a
transaction between one of the parties to a marriage and a third person
(
per interpositam personam), as by an
agreement of the husband with his wife's creditor, to be substituted as
debtor in her place. The question whether one of the parties to a marriage,
who has obtained possession from a third person of property belonging to the
other, can acquire a title to it by usucapion, is determined by the
following rules:--
A party to a marriage, who knows at the time of obtaining possession of
property that the other party to the marriage is owner of it, cannot acquire
because
bona fides at the commencement of
possession is essential to usucapion; but if such party has no knowledge of
the ownership of the other, a title by usucapion is possible. If, however,
before the time of possession is complete, both parties become aware that
the ownership belongs to one of them, usucapion is prevented, since an
acquisition under these circumstances would arise from a
donatio inter virum et uxorem. If, before the ownership is
acquired by usucapion, either the husband alone or the wife alone discovered
that it was the property of the other, this would not destroy the right to
acquire the property by usucapion, because in this case there would be no
agreement and consequently no
donatio. (
Dig. 24,
1,
44.) The general rule as to donations between husband and wife
is subject to some exceptions. Thus gifts of a trivial kind, as birthday
presents, were allowed; if a house belonging to one of the parties to a
marriage were destroyed by fire, it might be rebuilt at the expense of the
other; a woman might make gifts to her husband to qualify him for certain
honours and other distinctions (
Dig. 24,
1,
40.42); but the most
important relaxation in the law as to these donations was that in the time
of Septimius Severus they were declared valid if the donor died first
without having revoked his gift. (
Dig. 24,
1; Cod. 5.16; Glück, xxv. p. 422,
&c.; Savigny,
System, 4. § §
162-164.)
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