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The Responsibility of the Donor for Breach

  • A.M. Rabello


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1 D. 21.1.62, Modestinus, libro octavo differentiarum.

2 See D. 39.5.12; 23.3.33;; 42.1.30; 50.17.28; 50.17.173; Guarino, A.Studi sulla taxatio in id quod facere potest” (1941) 7 Studia et Documenta Historiae et Juris 5. We will not discuss here the question of interpolatio of some sources, because in relation to gifts scholars are in complete agreement that the aforesaid rule was already in existence in the Classical period: See Guarino, op. cit., p. 19, n. 1 and p. 30. See also Daube, D., “Zur Palingenesie einiger Klassikerfragmente” (1959) 73 ZSS 149 at 253.

3 Buckland, W., A Text Book of Roman Law from Augustus to Justinian (Cambridge, 1950) 693 ff.

4 On this question see Bo, , “Sul diritto agli alimenti del donante”, (1931) 23 Rivista di Diritto Civile, 8 ff.; Tedeschi, G., Gli alimenti, in Trattato di Diritto Civile Italiano sotto la direziore di F. Vassalli, (Torino, 1969) 500 ff.

5 Cf. D. Julianus, 49 dig.

6 C.J.8. 53. 15 (293 C.E.).

7 Windsheid, , Pandette, 2.2 pp. 23 ff. For French law, see Aubry and Rau, Droit Civil Français (Civil Law Translation), Cf. Testamentary Successions and Gratuitous Dispositions (St. Paul, Minn., 1969) Vol. X, p. 392: “Regarding the debts of the donor, the donee is personally and directly bound only when he has undertaken to pay them pursuant to an express or implied agreement in the act of donation”.

8 Sed et si quis cum parente suo patronove agat, item si socius cum socio iudicio societatis agat, non plus actor consequitur quam adversarius eius facere potest, idem est, si quis ex donatione sua conveniatur. (J. 4.6.38) according to the translation of Thomas, J.A.C., The Institutes of Justinian, Text, Translation and Commentary (Cape Town, 1975). Thomas comments that: “In effect, such direction (taxatio) was employed where damages were to be limited for extraneous reasons and not through the intrinsic nature of the claim” (p. 299). See also Biondi, B., Successione Testamentaria e Donazioni (Milano, 1955) 703 ff. On the problem of liabilities for debts of the donor in Jewish and Roman Law, see Yaron, R., Gifts in Contemplation of Death in Jewish and Roman Law (Oxford, 1960) 130 ft..

9 D. 39.5.22, 8 dig.

10 See Rabello, A.M., The Gift Law, 5728–1968 in Commentary on Laws Relating to Contracts, edited by Tedeschi, G. (Jerusalem, 1979, in Hebrew) 23 ff.

11 For the precise meanings of these terms see Berger, A., Encyclopedic Dictionary of Roman Law (Philadelphia, 1950) 440, 419 ff.: Kaser, M., Das Römische Privatrecht, (München, 1975) 348 ff.

12 Today the tendency is to unify the two previously opposing theories: the Willenstheorie and the Vorstellungstheorie, that is, in order to fulfil the requirement of malicious intention (dolus), the co-existence of two elements is needed; voluntariness of deed, and knowledge that the law was being contravened. Therefore there will be no claim of malicious intention as regards a donozr who believes he has a good reason not to perform his promise, or who has made an error of fact or law concerning the existence or the limits of his obligation. See Torrente, A., La donazione, (Milano, 1956) 503.

13 22 L.S.I. 113. Subsecs. (a) and (b) of sec. 5 read as follows: “Undertaking to make gift. 5. (a) An undertaking to make a gift in the future requires a written document. (b) Unless he has waived the right to do so in writing, the donor may retract the undertaking so long as the donor has not altered his situation in reliance thereon”. See also A.M. Rabello, The Gift Law, op. cit., supra n. 10 at p. 106; Landau, L. and Rakover, N.,“The Gift Law, 1968” (1969) 4 Is.L.R. 260; Friedmann, D., The Law of Unjust Enrichment (Tel Aviv, 1982) 53, 558.

14 A similar situation exists in the rescission of a guarantee for a future obligation.

See sec. 15(a) of Guarantee Law, 1967 (21 L.S.I. 41) and the interpretation in Ginossar, S., Guarantee Law, 5727-1967 in Commentary of Laws relating to Contracts, edited by Tedeschi, G. (Jerusalem, 1979, in Hebrew) 67.

15 See the discussion in A.M. Rabello, The Gift Law, op. cit., supra n. 10 at 54 ff.

16 This is a more simple expression than the term “grave deterioration” that was used in the proposed law. On the question of what would happen if ‘B’ obligates himself to give ‘A’ property as a gift, and as a result of ‘C’V’ interference ‘B’ rescinds on his obligation, see Cohen, N., Interference with Contractual Relations (Tel Aviv, 1982, in Hebrew) 188 ff. In my opinion, as opposed to what is stated in n. 14, ibid., the gift is a bilateral negotium, yet a unilateral contract. See Rabello, The Gift Law, supra, n. 10 at p. 18 ff. The matter is explained well in the judgment of Barak J. in Berkowitz v. Kaliman (1982 (IV) 36 P.D. 57.

17 In the translation of Forrester, J.S., Goren, S., Ilgen, H.M., The German Civil Code (New Jersey, 1975) 80. Compare sec. 250 of the Swiss Code of Obligations: “In the case of a promise of a gift, the donor may revoke the promise and refuse the performance thereof:

1. for the same reasons for which the return of executed gifts can be claimed;

2. if since the date of the promise his financial situation has changed to such an extent that the gift would become an extremely heavy burden on him;

3. if since the date of the promise new or materially heavier family duties have been imposed upon the donor.

The issue of a certificate of unsatisfied claims or the declaration of bankruptcy against the donor invalidate any promise of gift”. The Swiss Federal Code of Obligations transl. by Wettestein, G. (Zurich, 1928). For a comparison with French Law see the comments of P. Esmein, to Aubry-Rau, Droit Civil Français, op. cit., supra n. 7 at p. 387 ff.

“Where the donation is of a sum of money, the Civil Code has not retained the bénéfice de compétence of the Roman law according to which the donor who had contracted an obligation was required to perform only to the extent of his net assets with the privilege of retaining what was necessary for his subsistence. The Code permits only the revocation for cause of ingratitude if the donee refuses subsistence to the donor (Art. 955) [La.C.C. Art. 1560]. However, the decision of the Court of Grenoble of 17 June, 1930, Gaz. Pal., 1930, 2.419, which is questionable in view of the factual situation, holding that there was no true obligation, seems to have been influenced by the bénéfice de compétence concept”.

See also Mazeaud-Mazeaud, , Leçons de Droit Civil, 4, 2, (Paris, 1971) 647.

18 27. L.S.I. 117.

19 See Erman, , B.G.D. Handkommentar, 1 Band, p. 1126 ff. and generally, the commentary there to sees. 519 and 521.

20 A similar section is found in B.G.B. sec. 521: “[Liability of donor] A donor is responsible only for wilful conduct and gross negligence”. See the commentary in Erman, op. cit., supra n. 19.

21 A. Torrente, La donazione, op. cit., supra n. 12 at 503; A.M. Rabello, The Gift Law, op. cit., supra n. 10 at 111 ff.

22 25 L.S.I. 11. See sources cited in n. 16 supra.

23 But see sec. 11 (b) of the Law.

24 See Yadin, U., Contracts (Remedies for Breach of Contract) Law, 5731-1970 in Commentary of Laws relating to Contracts, edited by Tedeschi, G. (Jerusalem, 2nd ed., 1979) 29 ff., 97.

25 Sec. 5(a) of the Gift Law, see supra n. 13.

26 Sec. 5(b), ibid., see supra n. 13.

27 Cf. Planiol-Ripert, , Traite pratique de Droit Civil François, (Paris, 1957) vol. 5, p. 597.

28 For the problem in Jewish Law, see Bab. Talmud, Bava Mezia 45b and 49a: “Rabbah bar Bar Ḥanah said in R. Joḥanan's name: If one says to his neighbour, ‘I will make you a gift’, he can retract therefrom. ‘He can [retract]’ — but that is obvious: [Since there had been no legal acquisition] Hence [he must have meant]: He is permitted to withdraw! R. Papa replied: R. Johanan admits in the case of a small gift [that the mere promise involves a breach of faith] because he [the recipient] relies thereon [that he will certainly fulfil his promise; hence he cannot retract without a breach of faith.] But if one promises a large gift, the beneficiary himself does not have full confidence in the promise, and therefore withdrawal is permitted.” (Translation by Epstein, London, 1935, p. 252 ff.) See also Maimonides, Hilchot Zechiah u-matanah; Elon, M., “The Sources and Nature of Jewish Law and its Application in the State of Israel” (1969) 4 Is.L.R. 96 ff.; Landau, L. and Rakover, N., “The Gift Law, 1968” (1969) 4 Is.L.R. 260; Albeck, Sh., “Gift”, in Elon, M. (ed.), The Principles of Jewish Law (Jerusalem, 1975), col. 221 ff.; Albeck, Sh., The Law of Property and Contract in the Talmud (Tel Aviv, 1976, in Hebrew), index, s.v. matanah; Warhaftig, I., The Essence of Contract in Jewish Law (doctoral unpublished thesis, Jerusalem, 1977).

29 In this article we have refrained from considering the question of the donor's liability where the gift is defective or his liability for eviction, as these questions are beyond the score of the present study.

* Head of the Institute for Research in Jewish Law, The Hebrew University of Jerusalem.

The Responsibility of the Donor for Breach

  • A.M. Rabello


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