Question I: What donation is, and of how many kinds

The action of GIVING is called donation, as the Jurisconsult says leg. senatus. §. Donatio, ff. de donatione causa mortis. Donation is therefore a free gift, and a giving, as D. Bonaventure teaches in the places adduced, at the beginning of disput. 3. and on ad 7. Lucae in these words: Cum non haberent, unde redderent, donavit utrique.

Donation, however, is made in TWO ways. First, by transferring the right by words, saying: I give you my horse, which I have at home. And although this naturally suffices for transferring dominion from the nature of the thing, nevertheless positive law requires the other manner of donation, by the actual handing over of the thing, ex Leg. Traditionibus, Cod. de Pactis, ibi: Traditionibus dominia rerum, non nudis pactis transferuntur. See Bonacina de contr. disp. 3. quaest. 12. part. 1.

That donation is a NAMED contract, the Doctors teach commonly, cited by Fagundez lib. 4. de contract. cap. 1. num. 6.

Donation is DIVIDED, however, into Absolute and Conditional, under which is included donation for a day.

A CONDITIONAL donation is a true donation, where the condition is honest, and does not destroy the substance of the donation, as I said de contractibus in genere, cum D. Bonavent. in 4. dist. 28. quaest. 3. and the Gloss has it in leg. 1. in principio, ff. de donationibus, Curtius the younger in leg. 3. num. 73. ff. si certum petat. Iulius Clarus §. Donatio, quaest. 2. Fagundez lib. 4. cap. 2.

A donation FOR a day certainly to come, but uncertain when it will come, is valid, for instance if I give you my house for the day of my death, which donation induces an obligation to hand over the thing, but not before that day leg. omnis stipulatio, versu in diem, ff. de verborum obligatione, et leg. cedere diem, ff. de verb. significat. et leg. certi condictio in principio, and from the Gloss ibi, V. Caeterum, ff. si certum petatur, Molina disput. 284. § 567. Fagundez loco citato.

HENCE you can draw the difference between a donation for a day and a bequest for a day, for a donation obliges at once, and becomes irrevocable; but a bequest becomes irrevocable only at death, leg. si pupillus, §. qui sub conditione, ff. de donationibus, et ex lib. 12. et 17. tit. 15. part. 5. Molina teaches disp. 284 § illud observa. Therefore if the legatee dies before the testator, nothing of his is owed to the heirs: but if the donee dies before that day fixed for the handing over of the thing, the right passes to the heirs.

Donation is DIVIDED also into merely gratuitous, and remuneratory, or antidotal, which is rather called compensation leg. Attilius Regulus, ff. de donat. and Reinosus observat. 31 Covarr. in cap. cum in offic. de testam. num 10. teach there, Cevallos tract. 1. commun. contra communes, quaest. 273. num. 11. Mascardus de probat. concl. 1236. num. 61.

This donation, however, is valid, even if the merits are unknown from elsewhere, and are proved only by the expression of the donor, for no one can know benefits better than he who received them. So Petrus Barbosa Tom. 2. leg. quae dotis 34. ff. soluto matrim. num. 56. Iulius Clarus §. donatio, quaest. 3. Curtius the younger consil. 142. and thus the Parliament of Delphinatus judged, as Guy Papa attests decis. 95. et Claro already number 2.

Merits obliging from justice, however, are not pre-required, but it suffices if the donation is made by the judgment of a prudent donor from the debt of a grateful mind, as the Doctors teach commonly, Iulius Clarus loco cit. Covarruvas, and Socin. num. 1. Molina disp. 244. Sanchez tract. 1. de matrim. lib. 6. disp. 6. Menoch. de praesumpt. lib. 4. praesumpt. 67. a num. 1.

There is also ANOTHER donation indicated above, which is called Causa mortis, and it is a kind of liberal giving, or disposition of the will, from consideration of death, or of the danger of death, present or future. So Sylvester teaches V. donatio 4. num. 1. and it is confirmed by death alone without the addition of inheriting, as when a donation causa mortis is made to one present and accepting. For then, for its confirmation, the addition is not required; and in this it is distinguished from the other bequests and fideicommissa, which are not confirmed by death alone, but require the addition, as Bartol. teaches in leg. et in mortis, ff. de donat. causa mortis, Molina de primog. lib. 1. cap. 12. num. 14. Alexand. in leg. sciendum, ff. de legatis 1. and the Doctors commonly, cited by Fagundez lib. 4. cap. 5.

This kind differs, however, from a donation inter vivos, because the donor causa mortis wishes the thing rather for himself, while he lives, than for the donee: but in a donation inter vivos, he wishes the thing rather for the donee.

NOTE, however, that this donation ought to be liberal, and therefore not made by one freely striking fear of death in an agent in order to extort the donation; otherwise it will be invalid, as I said disput. 1. quaest. 4.