Lex Cincia

Lex Cincia or MUNERALIS, a plebiscitum carried by the tribune M. Cincius Alimentus, B.C. 204 (Cic. Cato, 4; ad Att. 1.20; de Orat. 2.71, 286; de Senect. 4, 10; Liv. 34.5), and entitled de donis et muneribus. In relation to gifts pure and simple, its enactments seem to have been two: (1) It forbade gifts beyond a certain maximum, the amount of which is unknown (Fragm. Vat. 304; Ulp. Reg. 1.1; Paul. Sent. rec. 5.11, 6; Dig. 39, 5, 21, 1); but it did not avoid gifts in excess of the limit, or even impose a penalty on the donee for taking the excess: it was, in fact, a lex imperfecta (Ulp. Reg. 1.1, 2; Macrob. Somn. Scip. 2.17). (2) It prescribed a form in which gifts must be made. A gift of a res mancipi was perfecta only if the res donata were mancipated and actually delivered (Fragm. Vat. 313), that of a res nec mancipi only if it were delivered (ib. 293, 313); that of a res mobilis was not perfected until the donee had possessed the thing for the greater part of the preceding year, for not till then was he entitled to the Interdictum Utrubi for his protection (ib. 293, 311). Absence of the mancipation form, if requisite, could be compensated for by usucapio (ib. 293). Thus the general effect of this provision was that gifts made in any other fashion (e. g. release or stipulation) were invalid (Fragm. Vat. 283, 310, 311; Dig. 20, 6, 1, 1).

Puchta (Institutionen, § 206) is of opinion that a gift was originally revocable in the ways described below if either of these provisions was disregarded: but that after some time observation of the statutory requirement as to form of conveyance was allowed to atone for violation of the rule as to amount, so that the latter became tacitly repealed by disuse. If the maximum of the Lex Cincia was no higher than that of the Lex Furia testamentaria, only twenty years later in date, it certainly must in time have come to be regarded as ridiculously small. Certain classes of donees, however, were excepted (Legis Cinciae exceptae personae) from the operation of both of these enactments, on the ground of being connected with the donor by the tie of kinship, affinity, betrothal, patronatus or guardianship (Fragm. Vat. 298-309).

But though the lex was imperfecta, there were means by which gifts in violation of its provisions could be rescinded, by the donor's having practically a power of revocation. If he were sued by a persona non excepta on a promise to give, he could defeat the action by exceptio legis Cinciae (Fragm. Vat. 310), which was also available if a res mancipi had been mancipated but not yet delivered (ib., and Dig. 44, 4, 5, 2). If it were mancipi, and had been tradita but not yet mancipated, the donor could assert his ownership in it by a vindicatio, and meet the defendant's exceptio rei donatae by replicatio legis Cinciae: and wherever the donee of a res mobilis had not possessed it for six months, the donor could recover possession by the Interdictum Utrubi. Where the gift was not revocable in any of these ways (e. g. if it had been a release of a debtor by acceptilatio, or by novation in favour of a third person, Dig. 39, 5, 21, 1), the donor was allowed an actio rescissoria, and he could recover by condictio any property of his which had definitely passed to the donee contra legem Cinciam (Fragm. Vat. 266; Dig. 39, 5, 21, 1; 44, 4, 5, 5). If, however, the donor died without revoking or expressing his intention of revoking a gift against the statute, it could not be upset by his heir: morte Cincia removetur (Fragm. Vat. 259, 266, 294).

Under the later Empire the rules of the Lex Cincia gradually went into disuse. Insinuatio (registration in the acta) of gifts to non exceptae personae was first required by Constantius Chlorus, and this rule was extended to exceptae personae by Constantine (Cod. Theod. 3, 5, 1). Later still the exemption of gifts to exceptae personae from the requirement of appropriate conveyance was done away with, except as between parent and child: and insinuatio was required by Theodosius II. only if the amount exceeded 200 solidi in value (Cod. Theod. 3, 5, 8): this maximum was raised to 500 solidi by Justinian, who also abolished the necessity of conveyance in any form, thus making a mere promise to give actionable (Inst. 2.7, 2).

Tacitus (Tac. Ann. 11.5) refers to another enactment of this statute, forbidding a person to take anything for his pains in pleading a cause, ne quis ob causam orandanm pecuniam donumve accipiat: Ann. 13.42 is explained by the fact that this provision was confirmed by a senatusconsult under Augustus, which imposed on the advocate a penalty of four times the sum received (D. C. 54.18). Under Claudius, however, advocates might take fees, but not in excess of 10,000 sesterces for each suit; a sum which under Nero was represented by 100 aurei: in this reign, too, further regulations were made on the subject (Suet. Nero 17), especially one subjecting those who took any sum in excess of the specified maximum to a prosecution for repetundae. But from Pliny (Plin. Ep. 5.21) it seems that in Trajan's time the fee could not be paid until the work had been done. (Savigny, Die Lex Cincia, Zeitschrift, 4.1; Verm. Schriften, 1.315-385; Rudorff, de lege Cincia, 1825; Wenck, Preface to Haubold, Opusc. acad. i. p. 37; Hasse, Rhein. Museum 1.185 sq., 3.174 sq.; Puchta, Institutionen, § 206; Francke, Civil. Abhandl. 1826, p. 1 sq.; Klinkhamer, de Donationibus, 1826; Bruns, Quid conferant Vat. fragm. ad Melius cognosc. jus Romanum, 1838, pp. 112 sq.)