Breach of promising donation and beneficium competentiae: The Roman law legacy and its reception in the Civil code of Bello

Abstract

The present study analyzes the connotations of the benefit of the limited judgment (beneficium competentiae) in favor of the donor who failed to fulfill his promise to donate. In this regard, based on Roman sources and specialized doctrine, the structure of said benefit in Roman legal practice will be reconstructed from the reasons for its introduction to the different doctrinal positions on the parameters aimed at determining the calculation of the id quod reus facere potest, which, for such an event, envisaged a double deduction on the gross wealth of the beneficiary debtor: so, on the one hand, of the other debts owed to other creditors not covered by said benefit (deductio aeris alieni) and, on the other hand, the amount needed for the debtor to subsist (deductio ne egeat). In this way, the study is framed around the issue and the debate inherent to the exclusive nature of both deductions in favor of the donor. Subsequently, in the Castilian Law of the Siete Partidas, the person who promised a donation was also protected, upon establishing that he complies, but  only if he has what is necessary to live, otherwise he would be exempt from such compliance. Therefore, in such a historical context, the beneficium competentiae would have lost its essence of partial payment, and would have become a food benefit, with which the donor was protected so that he did not fall into indigence. These antecedents would mark the receipt of the beneficium competentiae in the regulation made by Andres Bello in the Chilean Civil Code, in which the donor was also included as the holder of said benefit, based on the principles.