Question III: On the revocations of donations

GIFTS, especially inter vivos, I suppose to be irrevocable ex D. Bonavent. in Diaeta, Tit. 3. cap. 1. et in Psalm. 111.

A gift, perfected by traditio, and made irrevocable, is vitiated chiefly by three voiding causes. First by ingratitude. Second by supervening children. Third by an inofficious gift. Other causes are also reduced to these heads, as Iulius Clar. notes lib. IV. sent. §. donatio, quaest. 1.

AS REGARDS the first, we speak of a liberal gift; for one made by way of remuneration has already had its counterpart.

FIRST, then, it is revoked if the recipient has inflicted grave and atrocious injuries on the giver, even if only once. So Molina Tract. 2. disp. 281. et alii. What injuries are such is left to the judgment of the prudent man, and these injuries can be done by words or by deeds.

SECOND, if the recipient strikes the giver, or lays violent hands on him with the intention of injuring him.

THIRD, if he has inflicted grave damage on the giver's goods, provided he does this unjustly.

FOURTH, if the recipient has plotted danger to the giver's life.

FIFTH, if the recipient has not fulfilled another gift imposed on him by the giver, or has not discharged a condition imposed and accepted in the gift by the giver.

Since, however, these revoke a gift in punishment of a crime, the recipient is not bound to restore before the sentence of a judge.

OTHER causes are adduced by others, but Molina §. nobis vero, ait, holds that hatreds are not to be extended in this matter.

The SECOND head is the supervening offspring; for gifts are sometimes made at a time when the giver lacked succession: The question is asked: whether upon offspring supervening the gift is revoked.

I ASSERT that it is revoked ipso facto leg. si unquam, Cod. de revocand. donat. and indeed although this law speaks of a gift made to children, it must nevertheless be understood of any other gift made to another stranger, as Iulius Clar. notes lib. IV. §. Donatio, quaest. 22. et Gloss. in leg. si nunquam; and the Doctors commonly.

Note that this revocation takes place by the law itself upon children being born; hence the law says: Revertatur, etc.

IF, however, the gift was made to the Church, it is revoked not in whole, but insofar as it bites. See Tiraquellum copiously in leg. si unquam, Baldum consil. 215. Molinam tract. 2. cap. 2. disp. 292. Bartolum in leg. Titiae, §. Imperator, ff. de legat. 2. Couar. lib. I. var. cap. 19. Ripam ad leg. si unquam.

AND the Doctors note that a father cannot renounce the benefit of legis, si unquam Cod. de revocando donat.; for he can renounce only insofar as he does not prejudice the legitims of his children, which are owed to them by natural law. And so Clarus says this opinion is the best, and that judgment has always been rendered according to it.

The THIRD head is the inofficious gift, which is twofold. One in fact only, not in intention, when a father injures the Legitim of his children in the thing, although he does not intend to injure: then it is inofficious both in fact and in intention when he both injures in the thing and intended to injure.

THEREFORE if the gift has been made to one son, it is not revoked except up to the injury of the legitim of the other sons. So Clar. lib. IV. §. Donatio, quaest. 24. Molina tract. 2. disp. 283.

If it is made to a stranger, and is inofficious in intention, it is revoked in fact also, up to the legitim. So the Doctors cited; and this is true, even if the father had confirmed the gift by oath, because an oath is not a bond of iniquity, as the S. Doctor warns in 4. dist. 28. in dubiis litterae.

But if it is inofficious in fact only, not in intention, I hold it more probable that the whole is revoked in its entirety. So Bartol. cit. Iullius Clar. quaest. 24. where he calls it the common opinion.