The donation with a charge imposed on the donee in Roman law

Contract of donation is a typical gratuitous contract under which the donor undertakes a performance to the donee with the intention to benefit the donee. If an agreement is attached to the donation, which obliges the recipient to do or not to do something, it can be questionable whether the parties wanted to conclude a donation or an onerous contract. This is especially the case where the duty (charge or provision) is such as the donee should pay the donor a monthly living wage, or the donee should satisfy the donors creditors. The book tries to show the criteria according to which Roman law distinguished the donation with a charge from a synallagmatic contract. The question cannot be answered uniformly since the Roman donatio (sub modo) developed in several stages. Under classical Roman law, it was only a donation if the donor did not want the donation to be revoked in any circumstances. If, on the other hand, the donee was to be restricted in any way through the attached provision, the classical lawyers understood the transaction as a datio ob rem, that means, as a performance rendered for a certain purpose, by non-achievement of which the giver could exercise his right to claim his original performance back by means of condictio ob rem. The emperors Alexander Severus, Valerian and Gallienus enacted that the donee must not fulfill the provision, but in case of non-fulfillment the gift is to be returned to the donor on the basis of a condictio ob rem. Diocletian was the first to grant the actio praescriptis verbis in order to compel the donee to fulfill the provision (charge). Finally, under Justinian, the donor could demand either the fulfillment of the provision with the actio praescriptis verbis or the return of the entire gift with the condictio ob causam datorum. It cannot be inferred from the surviving sources whether the donor had a choice between these two actions, or whether Justinian preferred the actio praescriptis verbis on fulfillment of the provision. Neither the value nor the content of a provision nor the fact in whose interest the fulfillment of the provision was, decided whether a donation became a synallagmatic contract through the attached provision. Instead of the objective criteria, it seems to be the donors intention (animus donandi) that - at all stages of the development - decided whether the transaction is a contract of donation or a datio ob rem.