Gift Mortis Causa in the Ius Commune: Contract and Last Will

Abstract

In Roman law a gift mortis causa was a transfer of property carried out in contemplation or anticipation of the donor’s death. A dispute aroused among Roman lawyers about the status and the effects of this kind of transaction. Due to its anomalous character, some of them deemed that a gift in contemplation of death was comparable with a last will, while some others thought that it was assimilable to contracts. Emperor Justinian eventually decided that a donatio mortis causa had to be considered as a legacy. Nevertheless, law scholars in the Middle Ages and in the Modern Era who studied the Justinian body of civil law were not satisfied with such a classification. Thus, new disputes arose regarding this topic. Some highlighted the affinity of gift mortis causa with legacy, others with donatio inter vivos. The idea that a gift in contemplation of death was amphibious, i.e. it had a mixed nature, also started to be defended: it was a peculiar type of gift among the categories of gifts inter vivos and legacies, and it therefore belonged to a category which appeared, in some respects, to be sui generis. This was not only a theoretical question since different consequences derived from the qualification of the gift in contemplation of death. In this way, the jurists of the ius commune deepened the discipline of donatio mortis causa, particularly focusing on its essential requirements, so that they could distinguish it from other similar transactions (above all from donatio inter vivos). This helped lawyers to find a solution to problems arising in everyday life. For this purpose, the provision of the revocability of the gift played a key role (and the elements of testamentary dispositions were assumed to be predominant). Thus, donatio mortis causa is a clear example of medieval law scholars’ approach to the Justinian Corpus iuris civilis. Indeed, it was their unavoidable starting point, from which they then moved on in order to build up new theories to face the changes of the society they lived in.