things which the canon law permits. 3d, When the performance of an act by another is promised, unless it be accompanied with the obligation of the person making the promise; in which case he who makes the promise is the person bound, and not he who it was stipulated to bind or oblige. 12 This obligation respecting the performance of another's act also subsists, if it were imposed by the testator on his heirs; or if judicially consented to; such as is the reciprocal promise of co-guardians for the security of the property of the ward, and by which one is surety for others. 13 4th, The things prohibited by law and good manners, ought not to be performed or fulfilled although they be promised,14 Ll. 38 and 40. tit. 11. P. 5. [Ll. 38 and 40. tit. 11. P. 5.] There will not be found among us any covenant or pact which is invalid by reason of the form or mode1s in which the obligation is contracted, because L. 2. tit. 16. lib. 5. Rec. [L. 1. tit. 1. lib. 10. Nov. Rec.] says generally, that the obligation must be fulfilled in whatever way it appears to have been agreed upon, although neither stipulation nor promise may intervene. And therefore the exterior solemnities which the Romans required for the validity of promises of which some [162] mention is made in the laws of tit. 11. P. 5., are not observed in our law by which we are enabled to say truly, that in Spain the obligation depends more on the good faith of the contracting parties, than on the solemnities of the obligatory pact which, although crude and without writing, produces an obligation, L. 1.16 tit. 11. lib. 1. Fuero

Real.

From this, other consequences very different from the Roman law may be drawn or deduced, amongst which we may remark, that where two persons are bound simply or severally (simplemente), each is only considered bound for the half, unless it shall be expressed that they have bound themselves in solidum, and each separately," for then each may be sued for the whole,18 L. 1. tit. 16. lib. 5. Rec. [L. 10. tit. 1. lib. 10. Nov. Rec.]

From what has been said, the general modes by which an obligation arising from pure pact is extinguished, may be inferred, among which may be reckoned that which proceeds from the destruction and deterioration of the thing promised, which may happen without the fault of the obligor or person obliged,19 Ll. 18. and 19. tit. 11. P.

12 See L. 11. tit. 11. P. 5., cited in the text; and L. 1. tit.. 1. lib, 10. Nov. Rec.

13 In other words, the promise or undertaking of the testator or ancestor, descends to or is obligatory on his heirs; and the bail or surety, according to his undertaking or promise, is bound for the appearance, &c., of his principal.

14 Pacta que turpem causam continent non sunt observanda.

15 Palacios says, that contracts celebrated with an impossible condition, are void or ineffectual by reason of the mode of celebrating them; that all those which may not have been celebrated with a serious and deliberate intention of producing an obligation, shall be void, on account of the mode, also of celebrating them; and he refers to L, 1. tit. 1. lib. 10. Nov. Rec.

16 L. 1. is erroneously placed in the text.

17 Jointly and severally.

18 The same holds in the Roman or civil. See Wood's Inst. C. L., book 3. ch. 3. p. 226. 19 This must be taken with some limitation. See L. 18. tit. 11. P. 5., cited.

5.; [Ll. 10. and 19. tit. 11. P. 5.] and for what regards novation, solution, compensation, or set off, &c., as these modes of putting an end to the obligation are more particularly allied to loan (mutuo), we reserve it for Title 11.20

Cap. 2. According to our law we are to consider contracts as either innominate or nominate," the former comprehend the four kinds of do ut des, &c., spoken of by L. 5. ad fin. tit. 6. P. 5. Of the latter, some are from pure favor (gracia) and affection, and others are for the mutual benefit of both parties, prol de la, Part. 5.

Conformably to this division, we will treat first in this book of the contracts arising from favor, and which are advantageous to only one party, such as donations, loan (prestamo),22 deposit (deposito), loan called (mutuo),23 and a commission (montado),24 and afterwards of those which are advantageous and onerous to both parties, such as sale and purchase, leases (arrendamientos), partnership (sociedad), and exchange (cambio ó permuta). To these we shall add a third kind arising from those contracts, the substance and fulfilment of which depend upon chance or contingency, such as insurance (seguro), maritime exchange (cambio maritimo), and wagers (apuestas).

20 Of this book.

21 See also Wood's Inst. Civ. L., book 3. ch. 1. P. 206,

22 Commodatum. See Wood's Inst. Civ. Law, ch. 1. book 3. p. 215.

23 See ibid., p. 212.

24 Mandatum. See ibid., ch. 5. p. 242.

VOL. I.-22

TITLE IX.

OF DONATIONS.

[163] THE first beneficial contract to one party only is donation or the benevolent act which arises from nobleness and goodness of heart, when it is made freely and without any compulsion, L. 1. tit. 4. P. 5. [L. 1. tit. 4. P. 5.] It is made in two ways, either in health or upon prospect of death; the latter is revocable, the former not, L. 7. tit. 10. lib. 5. Rec. [L. 1. tit. 7. lib. 10. Nov. Rec.]

§ 1. Hence it is, 1st, That the donation made by a person in health is a lawful pact, by reason of which the dominion of the thing given is transferred to the donee. 2d, That the donation, causâ mortis, has much resemblance to bequests and legacies.

According to the first principle, 1st, The minor under twenty-five years of age cannot make a gift, L. 1. tit. 4. P. 5. 2d, Nor the madman, the idiot, nor the prodigal, L. 1. tit. 4. P. 5. [L. 1. tit. 4. P. 5.] 3d, Nor the son who is under the power of his father, without his permission or consent, except of property called castrenses and adventitious, L. 3. tit. 4. P. 5. [L. 3. tit. 4. P. 5.] 4th, Nor the person suspected of the crime of high treason, (læsæ majestatis,) unless he commit the offence after the donation, L. 2. tit. 4. P. 5.; [L. 2. tit. 5. P. 5.;] although persons condemned to death for other offences are considered capable of disposing of their property3 which has not been confiscated, L. 3. tit. 4. lib. 5. Rec. [L. 3. tit. 18. lib. 10. Nov. Rec.]

From this principle it follows also, 5th, That the donation made. between man and wife is not valid, by reason of their mutual affection, which would be an inducement for them to strip themselves of their property, L. 4. tit. 11. P. 4.; [L. 4. tit. 11. P. 4.;] the exceptions to which will be seen in Ll. 5. and 6. tit. 11. P. 4. [Ll. 5. and 6. tit. 11. P. 4.] 6th, That donations may be made simply or purely, with condition among persons present, and by power of attorney [164] among those absent; and until a certain day, or for a limited period, Ll. 4. and 7. tit. 4. P. 5.; [Ll. 4. and 7. tit. 4. P. 5.;] which simple obligation passes to the heirs when the donor hath not delivered the thing, L. 4. tit. 4. P. 5.; [L. 4. tit. 4. P. 5.;] and the conditional one shall be fulfilled in whatever way the condition may

1 And in what cases the property called profectitious, &c. Sce L. 3. tit. 4. P. 5. 2 Palacios says, it is not sufficient that he be suspected, but it must be known that he committed the offence, and he refers to L. 2. tit, 4. P. 5., cited.

3 See L. 2. tit. 4. P. 5.

4 See also Order in Council, 16th September, 1822. Appendix K.

be fulfilled, L. 5. tit. 4. P. 5. [L. 5. tit. 4. P. 5.;] but the donation made for a certain day or limited period will continue only for that time, the thing given then reverting to the donor or his heirs, L. 7. tit. 4. P. 5. [L. 7. tit. 4. P. 5.;] and in the same mode the pecuniary gifts or rewards that the king shall bestow or confer are at an end,5 by the death and the relinquishment or resignation (vacacion), of the donees, L. 20. tit. 10. lib. 5. Rec. [L. 12. tit. 5. lib. 3. Nov. Rec.]

As this liberality is often wont to degenerate into excess, it has been necessary to limit these donations, not only by prohibiting them when they are prejudicial to a third person, but also when they are so to the donor himself. For the first reason, 1st, The donation made for want of children is revoked generally if the donor shall afterwards have them, L. 8. tit. 4. P. 5. [L. 8. tit. 4. P. 5.] 2d, The donation which is made in prejudice of the lawful share (legitima) of children is prohibited, L. 8. tit. 4. P. 5. [L. 8. tit. 4. P. 5.;] for which reason, the gift made to the child who has brothers or sisters must come into partition, (en colacion,)6 L. 3. tit. 4. P. 5. [L. 3. tit. 4. P. 5.] 3d, Royal donations are also prohibited which are made in prejudice of the kingdom and of the crown, such as those mentioned in Ll. 3. 10. 14. and 18. tit. 10. lib. 5. Rec.; [Ll. 8. 5. 13. 14. and 3. tit. 5. lib. 3. Nov. Rec. ;] although the king may give many other things by way of remuneration for services, (por via de merced,) such as offices, alms, (limosnas,) insignia or badges of distinction, (habitos,) pensions, &c., L. 5. tit. 10. lib. 5. Rec., L. 16. tit. 10. lib. 5. Rec. [L. 4. tit. 5. lib. 3. Nov. Rec.;] and in this last case the donees ought to obtain them from the hand of the king, L. 16. tit. 10. lib. 3. Rec. [L. 4. tit. 5. lib. 3. Nov. Rec.] These are the donations ordered to be firm and valid by L. 6. tit. 10. lib. 5. Rec.; [L. 1.tit. 5. lib. 3. Nov. Rec.;] and which are moderated according to the circumstances and state of the kingdom, L. 15. tit. 10. lib. 5. Rec. [L. 10. tit. 5. lib. 3. Nov. Rec.] 4th, The donations made to the clergy and persons privileged in fraud of the revenue or payment of taxes, (en fraude de no pechar,) are prohibited as prejudicial to third persons, L. 11. tit. 10. lib. 5. Rec. [L. 3. tit. 7. lib. 10. Nov. Rec.;] to which the second Auto tit. 10. lib. 5. Rec., and Auto 1. tit. 10. lib. 5. Recop. [L. 12. tit. 5. lib. 1. Nov. Rec.] relate; where it is ordered, that for donations made to monasteries, the clergy, &c., the fifth, besides the tax of alcabala, be paid, and that the ordenanza de Portugal, which prohibits the acquisition by ecclesiastics of real property be

5 At the expiration of the period for which limited.

This is understood in so far only as the gift should exceed the mejora of tercio y quinto, which parents are allowed to assign to a particular child, beyond such child's legitimate share of their property. See Tit. 6. lib. 10. Nov. Rec. on this subject; and p. 117. ante, n. 27.

7 See L. 9. tit. 4. P. 5.

8 Not in the Nov. Rec.

9 Not in the Nov. Rec.

[165] observed.10 For the second reason, 1st, Every donation which leaves the donor without sufficient to maintain himself is prohibited, L. 4. tit. 4. P. 5. [L. 4. tit. 4. P. 5.] 2d, Also, that which comprehends the whole of a person's property even present, L. 8. tit. 10. lib. 5. Rec. [L. 2. tit. 7. lib. 10. Nov. Rec.] To both objects is L. 9. tit. 4. P. 5. directed, which enacts, that no donation exceeding five hundred maravedis of gold," can be made without an authentic deed of writing: but the practice of the present day is, for every donation to be made with the authority of the judge,i2 or for his approbation to be prayed for (se insta) by the donee, as the person who is principally interested.

§ 3. We have said that this donation is irrevocable, because without a legitimate cause, it cannot be revoked; and this is to be the evident ingratitude of the donee towards the donor, as a motive which causes the cessation of that love which was the mobile (movil) of the donation. To this have reference the four causes expressed by L. 10. tit. 4. P. 5., and others similar, which are in force by the Rule 36.13 tit. 34. P. 7.

§4. According to the second principle, bequests (mandas) or donations made causa mortis, may be revoked during the life of the giver, as also legacies; wherefore, 1st, L. 11. tit. 4. p. 5., sets forth, principally the following three causes of revocation: 1st, the death of the donee; second, the recovery or escape of the donor from the danger of death, the reason of which induced him to make the donation; third, the changing or altering his will. 2d, No person incompetent to make a will is permitted to make this donation, except the child,15 with the consent or permission of his father, L. 11. tit. 4. P. 5.16 [L. 11. tit. 4. P. 5.] 3d, As these donations are wont often to be made without the direction of that entire reason which is darkened by the fear of death, those gifts, therefore, which may have been extorted by, or may have proceeded from any deadly threat, will not be valid," L. 11. tit. 4. P. 5. [L.. 11. tit. 4. P. 5.]; nor those [166] which shall be made, in last sickness, to confessors, or to their churches, or monasteries, Auto 3. tit. 10. lib. 5. Rec. [L. 15. tit. 20. lib. 10. Nov. Rec.]

10 See also n. 6. tit. 5. lib. 1. Nov. Rec.

11 Vide the value of coin in note to original. A maravedi of gold is there said to be worth fifty reales, (suppose de vellon,) six maravedis, and something more of the then value of money, which make the sixth part of an ounce of gold.

12 Palacios says, that the excess of any gift, above such sum, without judicial approval and authority, will be void; and he refers to Febrero reformado, tom. 2. P. 1. ch. 21. § 1. n. 5. and 6. p. 101., which see.

13 This rule does not apply; perhaps rule 34, ibid. is meant.

14 Add before the donor.

15 In patria potestate.

16 Palacios says, that it appears the authors infer, that a child under the father's power cannot make a testament; and although this may be the case by the civil law, and even by that of the Partidas, yet by the law of the Recopilacion a child may make a testament, if he be of competent age, which is that of puberty, as though he were free from the patria potestad, L. 4. tit. 18. lib. 10. Nov. Rec.

17 Or fear of being killed. See the L. 11. tit. 4. P. 5. cited.