1 Gifts of the first kind are those made in view of approaching death, the intention of the giver being that in the event of his decease the thing given should belong to the donee, but that if he should survive or should desire to revoke the gift, or if the donee should die first, the thing should be restored to him. These gifts in contemplation of death now stand on exactly the same footing as legacies; for as in some respects they were more like ordinary gifts, in others more like legacies, the jurists doubted under which of these two classes they should be placed, some being for gift, others for legacy: and consequently we have enacted by constitution that in nearly every respect they shall be treated like legacies, and shall be governed by the rules laid down respecting them in our constitution. In a word, a gift in contemplation of death is where the donor would rather have the thing himself than that the donee should have it, and that the latter should rather have it than his own heir. An illustration may be found in Homer, where Telemachus makes a gift to Piraeus.
2 Gifts which are made without contemplation of death, which we call gifts between the living, are of another kind, and have nothing in common with legacies. If the transaction be complete, they cannot be revoked at pleasure; and it is complete when the donor has manifested his intention, whether in writing or not. Our constitution has settled that such a manifestation of intention binds the donor to deliver, exactly as in the case of sale; so that even before delivery gifts are completely effectual, and the donor is under a legal obligation to deliver the object. Enactments of earlier emperors required that such gifts, if in excess of two hundred solidi, should be officially registered; but our constitution has raised this maximum to five hundred solidi, and dispensed with the necessity of registering gifts of this or of a less amount; indeed it has even specified some gifts which are completely valid, and require no registration, irrespective of their amount. We have devised many other regulations in order to facilitate and secure gifts, all of which may be gathered from the constitutions which we have issued on this topic. It is to be observed, however, that even where gifts have been completely executed we have by our constitution under certain circumstances enabled donors to revoke them, but only on proof of ingratitude on the part of the recipient of the bounty; the aim of this reservation being to protect persons, who have given their property to others, from suffering at the hands of the latter injury or loss in any of the modes detailed in our constitution.
3 There is another specific kind of gift between the living, with which the earlier jurists were quite unacquainted, and which owed its later introduction to more recent emperors. It was called gift before marriage, and was subject to the implied condition that it should not be binding until the marriage had taken place; its name being due to the fact that it was always made before the union of the parties, and could never take place after the marriage had once been celebrated. The first change in this matter was made by our imperial father Justin, who, as it had been allowed to increase dowries even after marriage, issued a constitution authorizing the increase of gifts before marriage during the continuance of the marriage tie in cases where an increase had been made to the dowry. The name 'gift before marriage' was, however, still retained, though now inappropriate, because the increase was made to it after the marriage. We, however, in our desire to perfect the law, and to make names suit the things which they are used to denote, have by a constitution permitted such gifts to be first made, and not merely increased, after the celebration of the marriage, and have directed that they shall be called gifts 'on account of' (and not 'before') marriage, thereby assimilating them to dowries; for as dowries are not only increased, but actually constituted, during marriage, so now gifts on account of marriage may be not only made before the union of the parties, but may be first made as well as increased during the continuance of that union.
4 There was formerly too another civil mode of acquisition, namely, by accrual, which operated in the following way: if a person who owned a slave jointly with Titius gave him his liberty himself alone by vindication or by testament, his share in the slave was lost, and went to the other joint owner by accrual. But as this rule was very bad as a precedent—for both the slave was cheated of his liberty, and the kinder masters suffered all the loss while the harsher ones reaped all the gain—we have deemed it necessary to suppress a usage which seemed so odious, and have by our constitution provided a merciful remedy, by discovering a means by which the manumitter, the other joint owner, and the liberated slave, may all alike be benefited. Freedom, in whose behalf even the ancient legislators clearly established many rules at variance with the general principles of law, will be actually acquired by the slave; the manumitter will have the pleasure of seeing the benefit of his kindness undisturbed; while the other joint owner, by receiving a money equivalent proportionate to his interest, and on the scale which we have fixed, will be indemnified against all loss.
TITLE VIII. OF PERSONS WHO MAY, AND WHO MAY NOT ALIENATE
It sometimes happens that an owner cannot alienate, and that a nonowner can. Thus the alienation of dowry land by the husband, without the consent of the wife, is prohibited by the lex Iulia, although, since it has been given to him as dowry, he is its owner. We, however, have amended the lex Iulia, and thus introduced an improvement; for that statute applied only to land in Italy, and though it prohibited a mortgage of the land even with the wife's consent, it forbade it to be alienated only without her concurrence. To correct these two defects we have forbidden mortgages as well as alienations of dowry land even when it is situated in the provinces, so that such land can now be dealt with in neither of these ways, even if the wife concurs, lest the weakness of the female sex should be used as a means to the wasting of their property.
1 Conversely, a pledgee, in pursuance of his agreement, may alienate the pledge, though not its owner; this, however, may seem to rest on the assent of the pledgor given at the inception of the contract, in which it was agreed that the pledgee should have a power of sale in default of repayment. But in order that creditors may not be hindered from pursuing their lawful rights, or debtors be deemed to be overlightly deprived of their property, provisions have been inserted in our constitution and a definite procedure established for the sale of pledges, by which the interests of both creditors and debtors have been abundantly guarded.
2 We must next observe that no pupil of either sex can alienate anything without his or her guardian's authority. Consequently, if a pupil attempts to lend money without such authority, no property passes, and he does not impose a contractual obligation; hence the money, if it exists, can be recovered by real action. If the money which he attempted to lend has been spent in good faith by the wouldbe borrower, it can be sued for by the personal action called condiction; if it has been fraudulently spent, the pupil can sue by personal action for its production. On the other hand, things can be validly conveyed to pupils of either sex without the guardian's authority; accordingly, if a debtor wishes to pay a pupil, he must obtain the sanction of the guardian to the transaction, else he will not be released. In a constitution which we issued to the advocates of Caesarea at the instance of the distinguished Tribonian, quaestor of our most sacred palace, it has with the clearest reason been enacted, that the debtor of a pupil may safely pay a guardian or curator by having first obtained permission by the order of a judge, for which no fee is to be payable: and if the judge makes the order, and the debtor in pursuance thereof makes payment, he is completely protected by this form of discharge. Supposing, however, that the form of payment be other than that which we have fixed, and that the pupil, though he still has the money in his possession, or has been otherwise enriched by it, attempts to recover the debt by action, he can be repelled by the plea of fraud. If on the other hand he has squandered the money or had it stolen from him, the plea of fraud will not avail the debtor, who will be condemned to pay again, as a penalty for having carelessly paid without the guardian's authority, and not in accordance with our regulation. Pupils of either sex cannot validly satisfy a debt without their guardian's authority, because the money paid does not become the creditor's property; the principle being that no pupil is capable of alienation without his guardian's sanction.