[ULPIANUS libro trigesimo tertio ad Sabinum. ] §24.1.32.prCum hic status esset donationum inter uirum et uxorem, quem antea rettulimus, imperator noster Antoninus Augustus ante excessum diui Seueri patris sui oratione in senatu habita auctor fuit senatui censendi Fuluio Aemiliano et Nummio Albino consulibus, ut aliquid laxaret ex iuris rigore.
[ULPIANUS, in the thirty-third book on Sabinus.] When the state of donations between husband and wife was as we have previously reported, our Emperor Antoninus Augustus, before the departure of his father the deified Severus, by a speech delivered in the Senate, became the author of the Senate's decree, in the consulship of Fulvius Aemilianus and Nummius Albinus, to relax something of the rigor of the law.
§24.1.32.1Oratio autem imperatoris nostri de confirmandis donationibus non solum ad ea pertinet, quae nomine uxoris a uiro comparata sunt, sed ad omnes donationes inter uirum et uxorem factas, ut et ipso iure res fiant eius cui donatae sunt et obligatio sit ciuilis et de Falcidia ubi possit locum habere tractandum sit: cui locum ita fore opinor, quasi testamento sit confirmatum quod donatum est.
Moreover, the speech of our Emperor concerning the confirmation of donations pertains not only to those things which have been acquired by the husband in the name of the wife, but to all donations made between husband and wife, so that by operation of law the things become the property of the one to whom they were donated, and there is a civil obligation, and where the Falcidian law can have application, it must be treated of; in which case, I think its application will be as if what was donated had been confirmed by a will.
§24.1.32.2Ait oratio 'fas esse eum quidem qui donauit paenitere: heredem uero eripere forsitan aduersus uoluntatem supremam eius qui donauerit durum et auarum esse'. §24.1.32.3Paenitentiam accipere debemus supremam.
The speech says: "It is indeed permissible for the one who donated to change his mind; but for the heir to snatch it away, perhaps against the final will of the one who donated, is harsh and avaricious." We must understand the change of mind to be the final one.
proinde si uxori donauit, deinde eum paenituit, mox desiit paenitere, dicendum est donationem ualere, ut supremum eius spectemus iudicium, quemadmodum circa fideicommissa solemus, uel in legatis cum de doli exceptione opposita tractamus, ut sit ambulatoria uoluntas eius usque ad uitae supremum exitum.
Accordingly, if he made a donation to his wife, then regretted it, and soon ceased to regret it, we must say that the donation is valid, so that we look to his final judgment, as we are accustomed to do regarding fideicommissa, or in the case of legacies when we treat of the exception of doli raised, so that his will may be ambulatory up to the final exit of life.
§24.1.32.4Sed ubi semel donatorem paenituit, etiam heredi reuocandi potestatem tribuimus, si appareat defunctum euidenter reuocasse uoluntatem: quod si in obscuro sit, procliuior esse debet iudex ad comprobandam donationem.
But where the donor has once changed his mind, we also grant the power of revocation to the heir, if it appears that the deceased clearly revoked his will; but if it is in obscurity, the judge ought to be more inclined to approve the donation.
§24.1.32.5Si maritus ea quae donauerit pignori dederit, utique eum paenituisse dicemus, licet dominium retinuit.
If a husband has given in pledge the things which he had donated, we shall certainly say that he changed his mind, although he retained the ownership.
quid tamen, si hoc animo fuit, ut uellet adhuc donatum? finge in possessionem precariam mulierem remansisse paratamque esse satisfacere creditori.
What, however, if he was of this mind, that he wished it still to be donated? Imagine that the woman remained in precarious possession and is prepared to satisfy the creditor.
dicendum est donationem ualere: nam si ab initio ei rem obligatam hoc animo donasset, dicerem uim habere donationem, ut parata satisfacere mulier haberet doli exceptionem: quin immo et si satisfecisset, potuisse eam per doli exceptionem consequi, ut sibi mandentur actiones.
We must say that the donation is valid; for if from the beginning he had donated to her a thing bound in pledge with this intention, I should say that the donation has force, so that the woman, prepared to satisfy, would have the exception of doli; nay more, even if she had satisfied, she could have obtained through the exception of doli that the actions be mandated to her.
§24.1.32.6Si donator seruus fuerit effectus priuati, dicendum est non impletam, sed peremptam donationem, quamuis morti seruitus comparetur: proinde et si ipsa in seruitutem redigatur cui donatum est, extincta erit donatio.
If the donor has been made the slave of a private person, we must say that the donation is not completed but destroyed, although servitude is compared to death; accordingly, also if she herself to whom the donation was made is reduced to servitude, the donation will be extinguished.
§24.1.32.7Si maritus uxori donauerit et mortem sibi ob sceleris conscientiam consciuerit uel etiam post mortem memoria eius damnata sit, reuocabitur donatio: quamuis ea quae aliis donauerit ualeant, si non mortis causa donauit.
If a husband has donated to his wife and committed suicide out of consciousness of a crime, or even after death his memory was condemned, the donation will be revoked; although those things which he donated to others remain valid, provided he did not donate them in contemplation of death.
§24.1.32.8Si miles uxori donauerit de castrensibus bonis et fuerit damnatus, quia permissum est ei de his testari (si modo impetrauit ut testetur cum damnaretur), donatio ualebit: nam et mortis causa donare poterit, cui testari permissum est.
If a soldier has donated to his wife from his camp property and has been condemned, because he is permitted to make a will concerning these things (provided only that he obtained permission to make a will when he was condemned), the donation will be valid; for he who is permitted to make a will can also donate in contemplation of death.
§24.1.32.9Quod ait oratio 'consumpsisse', sic accipere debemus, ne is, qui donationem accepit, locupletior factus sit: ceterum si factus est, orationis beneficium locum habebit.
What the speech says, "to have consumed," we must understand in this way, lest the one who received the donation has become richer; otherwise, if he has, the benefit of the speech will have place.
sed et si non sit factus locupletior, dederit tamen tantam quantitatem eaque exstet, dicendum est, si is decessit, qui factus est locupletior, posse repetere id quod dedit nec compensare id quod consumpsit, quamuis diuortio secuto haec compensatio locum habeat.
But even if he has not become richer, yet he gave such a quantity and it remains, we must say that, if the one who became richer died, he can demand back what he gave and not compensate for what was consumed, although this compensation has place when a divorce followed.
§24.1.32.10Si diuortium post donationem intercessit aut prior decesserit qui donum accepit, ueteri iuri statur, hoc est, si maritus uxori donatum uult, ualeat donatio, quod si non uult, exstinguitur: plerique enim cum bona gratia discedunt, plerique cum ira sui animi et offensa.
If a divorce intervened after the donation, or the one who received the gift died first, we stand by the old law; that is, if the husband wishes it to be donated to his wife, the donation is valid, but if he does not wish it, it is extinguished; for many part with good grace, but many with anger of their mind and offense.