For Given Horse do not Look at the Teeth

Abstract

The allegoric saying about the gift horse differs from the scholarly legal maxims - to a large extent coined or compiled in the Middle Ages - by its popular character. For farmers familiar with the cattle trade the proverb points to the moderate liability of donors for defects in the object of donation, in contrast to the rules applicable to the contract of sale. Due to its plainness, oral tradition can be regarded as pertinent to the sphere of "popular jurisprudence"; it is suitable for the characterization of the judging activity of medieval layman judges (jurors): "farmers tend to judge by means of proverbs". The adage, that in its Latin version traces back to Jerome, did not exist in that same wording in the Roman Law of the Corpus Iuris Civilis. But the privileged situation of the unselfish donor, its exemption from liability for defects of the object of donation, except in case of malice (dolus), can be already found, in its essence, in ancient classical law. The basic idea that a person's generosity may not result in damage for that same person (Utilitätsprinzip), is still quite convincing today For that reason, this legal and ethical principle, which at the same time contains a direction for the conduct of the donee, is so generally widespread that one could almost speak of a universal legal principle.