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Justinian I · The Digest of Justinian §24.1.52.pr-24.1.52.1

Void Low-Price Leases and Mortis Causa Gifts between Spouses

Passage 3564 of 9271 · Latin

Summary

Papinianus explains that a low-priced lease between spouses for the purpose of a donation is void, whereas a deposit with a lower valuation remains valid, and discusses how death-related stipulations and deliveries between spouses are dissolved upon the husband's prior death, unlike cases between strangers.

[PAPINIANUS libro decimo quaestionum. ] §24.1.52.prSi uir uxori donationis causa rem uilius locauerit, locatio nulla est: cum autem depositum inter eas personas minoris donationis causa aestimatur, depositum est.
[PAPINIANUS, in the tenth book of Questions.] If a husband, for the purpose of a donation, lets a property to his wife at a lower price, the lease is void; but when a deposit between these persons is valued at a lower rate for the purpose of a donation, the deposit is valid.
haec ideo tam uarie, quia locatio quidem sine mercede certa contrahi non potest, depositum autem et citra aestimationem quoque dari potest.
These cases are treated so differently because a lease cannot be contracted without a fixed rent, whereas a deposit can also be given without any valuation.
§24.1.52.1Uxor uiro fructum fundi ab herede suo dari, quod si datus non fuisset, certam pecuniam mortis causa promitti curauit: defuncto uiro uiua muliere stipulatio soluitur, ut traditio, quae mandante uxore mortis causa facta est: nam quo casu inter exteros condictio nascitur, inter maritos nihil agitur.
A wife arranged for the fruit of an estate to be given to her husband by her heir, and, if it should not have been given, for a certain sum of money to be promised to him mortis causa: if the husband dies while the woman is still living, the stipulation is dissolved, just like a delivery which was made mortis causa by the order of the wife; for in a case where a condictio arises between strangers, nothing is effected between husband and wife.

Notes

  1. §24.1.52.prminoris donationis causa aestimatur — The word "minoris" is a genitive of value. In the context of a deposit, it refers to a situation where the valuation (aestimatio) of the object for indemnity purposes is agreed upon at a lower rate (minoris) for the purpose of a donation (donationis causa). Since a deposit is by nature a gratuitous contract, the level of this valuation does not affect the contract's validity, and thus "the deposit is valid" (depositum est). This is contrasted with a lease, where rent (merces) is an essential element, meaning that a low-priced lease for a donation (uilius locauerit) lacks the substance of a lease and is entirely void (nulla).
  2. §24.1.52.1Uxor uiro fructum fundi ab herede suo dari ... curauit — The subject is "Uxor" and the main verb is "curauit" (arranged) at the end. "uiro" (to the husband) is in the dative. The verb "curauit" takes two accusative-with-infinitive constructions as its objects: "fructum ... dari" (the fruit to be given) and "certam pecuniam ... promitti" (a certain sum to be promised). In "quod si datus non fuisset", "quod" is a relative pronoun of connection (neuter singular) referring back to the giving of the fruit, combined with the conditional clause "si". "datus" agrees in gender and number with "fructus" (masculine).
  3. §24.1.52.1defuncto uiro uiua muliere — Two ablative absolute constructions, "defuncto uiro" (the husband having died) and "uiua muliere" (the woman being alive), are placed in apposition to express the temporal or situational condition for the main clause.
  4. §24.1.52.1inter maritos nihil agitur — The phrase "nihil agitur" means "nothing is done" or "no legal effect is produced," indicating legal invalidity or non-existence of the act. Between strangers (exteri), if the purpose of a donation mortis causa fails (such as when the donee dies first), a "condictio" (action for recovery of enrichment) would arise to reclaim what was delivered. However, between spouses (inter maritos), because donations are prohibited in principle, the law treats the transaction as if nothing had happened from the beginning (nihil agitur), rendering any action for recovery unnecessary because the transfer is automatically void.

Cite this passage

Justinian I, The Digest of Justinian §24.1.52.pr-24.1.52.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:24.1.52.pr-24.1.52.1

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