Dona clandestina sunt semper suspiciosa

Literal Meaning

Clandestine gifts are always suspicious.

Explanation

Dona clandestina sunt semper suspiciosa means that gifts given in secret are suspicious in nature. In simpler terms gifts or properties given in secret arouse a suspicion as to the nature of the gift given. It is common sense that anything gifted in secrecy gives rise to suspicion as to why the thing was given in hiding. It stirs notions of mistrust in the doner and the donee both. Only a fraudulent act is done in secrecy.

The adage finds its importance in contract law, bankruptcy laws and financial laws.

Origin

The maxim “Dona clandestina sunt semper suspiciosa” is of Latin origin. 

Illustration 

 If ‘A’ gifts a property to ‘B’ in secret, but retains the possession of the property with himself. Later he files for bankruptcy in order to save himself from paying a long due debt to ‘C’. The court can hold that clandestine gifts are always suspicious for dona clandestina sunt semper suspiciosa is a maxim of law and can investigate as to why such clandestine transfer of property was made. Here, A will be held liable for fraud as he secretly gifted his property in order to prevent payment of the debt he owed to ‘C’.

Case Reference

In Twyne’s case^[1], Pierce, a farmer owed Twyne 400 pounds and owed another creditor 200 pounds. This creditor brought an action against Pierce. While the writ was pending, Pierce being possessed of goods and chattels of the value of 300 pounds, in secret made a general deed of gift of all his goods and chattels to Twyne, in satisfaction of his debt, but nevertheless remained in possession of the sad goods. He sold some of the goods and also shore and marked the sheep. The creditor obtained a judgement as to whether the gift made was fraudulent considering the circumstances in which it was made. The court, among other things, held that Pierce continued the possession and used the property as his own and traded and trafficked with others and defrauded and deceived them and since the gift was made in secret, et dona clandestina sunt semper suspiciosa.

However, in the case of Francis Warner, Plaintiff in error v. Cephas H. Norton, Albert Jewett, Benjamin C. Busby, John C. Phelps, Isaac N. Phelps, and James Beman^[2], as to the alleged secrecy of sale. The court instructed the jury that secrecy threw suspicion on the transaction, but did not make it fraudulent in law.

In the case of The associated Journals Ltd and Anr v. Land and Development Office^[3], even though clandestine transfers were made, the High Court of Delhi, while keeping in mind the condition of the company, did not hold them suspicious and fraudulent, as there was no ulterior motive or malafide intent.

Edited by Vigneshwar Ramasubramania

Approved & Published – Sakshi Raje

Reference:

1] I Sm L.C. 11^th ed. P.I.

[2] 61 U. S. 448 (20 How. 448, 15 L.Ed. 950)

[3] LPA 10/2019 & CM Nos. 566/2019 & 649/2019