Contract for Donation in the Roman Law and its Development in the Positive Law in Kosovo

• Author: Ardian Dauti
• Position: LLM. Candidate, Department of Civil and Property Law, Faculty of Law, University of Prishtina, Kosovo
• Pages: 13-30

JURIDICA

13

Contract for Donation in the Roman Law

and its Development in the Positive Law in

Kosovo

Ardian Dauti

1

Abstract: Contract for donation is one of the oldest as well as the most important contracts in the

positive law in Kosovo, for the fact that through a gift deed a person (the donor) carries or is obliged

to convey the other contractor (the donee) the right to ownership of a particular object or any other

property right. This contract dates back to the Roman law where the foundations of the legal rules

regarding the notion o f the contract for donation, the subjects that enter into that contract - the donor

and the recipient, the types of this contract, which even nowadays are recognized by the

contemporary law - both the positive law in Ko sovo as well as the comparative one. Contract for

donation is a contract on the permanent and free assignment of any thin g or right. The aim of entering

into this contract will be for one contracting party to gain material (property) benefits free of charge

to the expense of the other contracting party. Through the gift, the recipient gains the right of

ownership over a given item. The objective of charity (animus donandi) shall be the key element to

this type of contract, thus being the ground of this contract. Contract for donation is regulated in the

positive law of Kosovo through the Law on Ob ligation Relationships, which was adopted by the

Assembly of Kosovo in 2012. The purpose of this paper is to present the development of the contract

for donation in Roman law and by focusing on its detailed reflection on the positive law in Kosovo.

This contract is extensively applied in practice in Kosovo.

Keywords: Donation; donor; donee; Lex Cincia; LOR; Animus donandi; Kosova

1. Introduction

Contract for donation in the course of history has experienced a specific

development, especially in relation to its foundations since the era of Roman Law.

Indeed, in contrast to the basic contracts of the law on obligations (such as: sale,

loan, etc.), the contract for donation is not encountered among the well-known and

independent legal papers until the beginning of IV century when it appeared and

1

LLM. Candidate, Department of Civil and Property Law, Faculty of Law, University of Prishtina,

Kosovo. Address: Str. “Agim Ra madani”, 10 000 Prishtina, Republic of Kosovo, Tel: +381 38 229

063, Fax: +381 38 229 744. Corresponding author: dauti_35@hotmail.com.

AUDJ, Vol. 15, No. 3/2019, pp. 13-30

ACTA UNIVERSITATIS DANUBIUS Vol. 15, no. 3/2019

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became a specific form with the price of substantial structural reduction, but

gradually taking its form up to the present day (Gorenc, 2005, pg. 744).

The property of one party decreases as the property of the other party is enlarged,

and this is done for charity, free of charge. A gift will also be considered when the

creditor writes off the debt to the debtor (Milosevic, 1988, pg. 314).

Contract for donation aims at helping and humanizing each other towards one

another. It is encountered in daily life in the form of giving without remuneration

of movable and immovable items, particularly in relationships between people who

are in family, social and other relationships with each other, it is also found in the

form of giving different things in favor of museums, religious institutions, archives,

libraries. Moreover, by means of donation, legal actions are vested, aimed at

passing in favor of various natural and legal entities, food items, financial funds,

material bases and others for performing various activities of a health, educational,

scientific and other natures (Semini, 1998, pg. 29,30). The scope of the contract

may be extensive, it may include the transmission of ownership or other real rights

over an item or the assignment of a loan, the creation of a real right over the

property that is the property of the donor (e.g. the donation of usufruct) lastly, it

may include the assumption of an obligation that may be subject to a single

obligation or a periodic obligation (Galgano, 1990, pg. 869,870). Donation

(donatio) is a voluntary and unpaid property benefit, which increases the recipient's

wealth while decreasing the donor's wealth, such a destination should be made on a

liberal basis (animus donandi), which means that it is intended only to add the

recipient's wealth. Donation or gift can be realized through various forms of legal

affairs with the gift recipient, such as through transfer of ownership or real rights

through mancipatio, traditioose in iure cesie (dando) by giving the property

requested (cedento), through exemption from an obligation (liberando), or through

a promise for donation (dhurim) which implies that taking of obligation is a gift

(obligando). However, according to the classical law, the claiming obligation rose

from the promise for donation only in cases when the promise was covered by the

form of stipulation (donation premittendo). However, only after further

developments in Justinian's Law, the informal promise of donation was recognized

as an appealed obligation, but only up to the sum of 500 solid (pactum donationis,

pactum legitimum). In the case of the lawsuit for the donation promise, the

recipient of the donation is entitled to benificium competentiae (Horvat, 2002, pg.

369).