VI. On Donation

What is donation? Donation, strictly said, is the liberal conferral of some gift. Of a gift; a gift is whatever is given liberally to someone with the mind that it become the receiver's. Is given, namely from one's own patrimony; hence, if someone, for example, renounces an inheritance or legacy, it is not properly donation. Liberal conferral; for the gift which is conferred on another by donation ought not to be owed to him from justice, nor ought the one giving the gift oblige the other to furnish something else; donation ought to be an act of liberality, and not of justice. C. I. 1050. Meanwhile, nevertheless, a consequent debt of gratitude, or even an antecedent one, is not repugnant to donation, and therefore donation can be remunerative from gratitude, or an act of gratitude, although thus it recedes somewhat from the properties of donation. C. I. 1051. Conferral; for by donation the thing donated is not promised as to be given in the future, but in the present, by act, is given. Conferral; for by natural law, even before delivery of the thing, the thing donated becomes proper to the donee; for donation is a consensual contract, not a real one. But in order that donation induce an obligation in the donor, acceptance by the donee is necessary. For no one by natural law, without his own consent, can acquire a right in another's things. L. 725, 726. It can be accepted either by oneself or through a procurator.

C. A. 938-942; C. H. 618, 619, 623, 629, 630; C. B. 516, 517; C. L. 1452, 1454, 1455. But although donation generally does not hold before acceptance by the donee, nevertheless a donation made to a church or to another pious cause holds before it is accepted. The reason is that the thing is considered donated or promised to God Himself, who is present everywhere and immediately accepts. Ferraris v. Donatio a. 1. n. 26; L. 726.

Of how many kinds is donation? - Donation is divided 1. into liberal and remuneratory. The former is that which is made from the pure virtue of liberality and without a debt of gratitude; but the latter is that which is made at the same time from the virtue of gratitude, and from the motive of compensating this debt. C. I. 1051; C. H. 618; C. A. 940.

2. Into donation mortis causa and among the living. The former is that which is made by the donor in view of impending death, and consequently from its nature is revocable before death, because of this implicit condition imbibed: If I shall have died in this illness, in this danger; or, I shall not have revoked the donation before death. Through it there is had a right to the thing, or even in the thing, which is not had in a testament, and it is essentially revocable, and in this it differs from donation among the living.

He resolves: A disposition by which someone now and irrevocably gives to another the ownership of a thing, while reserving to himself its use or usufruct until death, is not a donation mortis causa, but inter vivos. C. I. 1074; C. G. 948. Nor are those dispositions to be regarded as donations mortis causa, but as donations inter vivos, by which sick persons actually and irrevocably give to persons present, e.g., relatives, servants, friends, movable or even immovable things, without any condition regarding death. Promises which are commonly made in life concerning some thing to be given at death to relatives, servants, or friends, do not have the force of a donation mortis causa; nor by force of such a promise will anyone be able, commonly speaking, to claim even the least thing; because such promises are usually intended to denote nothing other than a mere purpose, or good intention of making a donation at some other time. Care must therefore be taken lest relatives, servants, and friends too readily interpret the will of the deceased in their own favor, and accordingly secretly carry off various things under pretext of a promise or donation.

Whether a donation mortis causa is valid? By natural and common law a donation mortis causa is valid. The reason is that in itself it is a certain legitimate way of disposing of one's own goods, provided it is clothed with the due conditions. Namely: 1. It must be made in view of death; otherwise it would be judged a donation inter vivos. 2. It must be accepted by the donee himself; for no one can acquire a right in another's things unless he first consents. 3. It must not have been revoked. If the donee dies before the donor, it is revoked by that very fact, and it does not pass to his heirs, at least in the rigor of law, because it was not directed to them. It is likewise revoked if the donor survives the danger of death, and the donation was made precisely in view of the proximate danger of death. Inst. 1. 2. t. 7. § 1.

Whether a donation mortis causa is valid also according to more recent laws? - As regards the more recent laws, according to C. B. 2301 ff. a donation mortis causa is explicitly admitted, under the condition, namely, that the donee survive the donor. A contract by which someone is obliged not to revoke it is null. According to C. A. 956, a donation mortis causa, the prescribed formalities being observed, is certainly valid as a legacy. And it is valid also as a donation, if the donee has accepted it, and the donor has expressly renounced the faculty of revoking it, and has handed over to the donee a written document. According to C. L. 1457; C. H. 620, a donation is admitted which has effect at the death of the donor; and it is governed by the same laws as testamentary succession.

According to C. I. 710 and 827, a donation mortis causa more truly is valid, like any other disposition and agreement for transferring ownership in conscience. According to C. G. there is a grave difficulty on account of art. 893, by force of which one cannot dispose of his goods gratuitously except by donation inter vivos and by testament. But more probably it is also valid; for in art. 967 it is said that one can dispose of his goods by testament, whether under the title of institution of an heir, or under the title of legacy, or under any other designation suited to manifesting his own will. But a donation mortis causa is reduced to a testament or to a legacy, or at least is another norm suited to manifesting one's own will. And indeed, if that donation were written in a testament, it would be valid as a legacy. Hence at most the general doctrine of a contract lacking legal forms would have place here. Besides, that donation certainly seems to be valid as a conditional donation inter vivos, as is a donation in view of marriage, cf. art. 1083, if it is not revocable at the donor's nod, but only from the event of health; for then the condition is casual, containing nothing contrary to law. Moreover, if a donation mortis causa is annulled according to French Law, "it is indeed annulled by the sentence of the judge, but probably not by the very fact." Gur. Cas. 816. Namely, there is in this contract its own natural force, which C. G. itself recognizes in several places, aa. 1235, 1311, 1338, etc. Therefore before the sentence of the judge it will be valid in conscience. Finally, "very grave interpreters of the law, e.g., Merlin and Delvincourt, assert that manual donations mortis causa are valid, provided there is delivery or relinquishment (dessaisissement); and the Supreme Court so declared on Dec. 12, 1815." Gur. Cas. 811, Comp. 836; Gousset 797, 798 and on a. 893; L. 741-743.

He resolves: A donation under the condition that it be restored if it is demanded back is more probably valid; for "although it is not valid as a donation inter vivos, which requires that the donor irrevocably strip himself of his thing, nevertheless it can be valid as a donation mortis causa, on account of real delivery, which ought to have no less force, even though no mention of death is made." Gur. 836; C. L. 1473. He to whom a movable thing has been given mortis causa can secretly take it after the donor has died, provided he is certain about the donation and the last will of the deceased. For the thing was not given so that it would be paid by the heir, which is proper to a legacy, but so that it would be taken by the donee himself. Then, too, he has a right in the donated thing; for a donation mortis causa is a conditioned donation, which through the death of the testator becomes absolute. Therefore, when the donor has died, the donated thing at once passes absolutely into the ownership of the donee. Cf. 997. Therefore here he can take it as his own. Hence, if he is compelled by the judge to take an oath that he has received nothing from the goods of the deceased, he can assert under oath that he has received nothing from the goods of the deceased, namely, nothing which was not his own. - Gousset 797 and on a. 931.

What is the nature of a donation inter vivos? - A donation inter vivos is an act of spontaneous liberality, by which the donor strips himself irrevocably of the thing donated in favor of the donee, who accepts it. C. I. 1050; C. G. 894; C. L. 1456; C. A. 938, 946. - He strips himself actually and irrevocably; nevertheless nothing prevents a donation from being made under a condition, whether suspensive or resolutory.

C. I. 1066, 1078; C. G. 944, 953. A suspensive condition is tacitly present in donations which are made on account of marriage, C. I. 1068; C. G. 1088. A resolutory condition is tacitly present in reciprocal donations which two persons make to each other, cf. C. I. 1083. But a condition invalidates a donation when it is placed wholly in the power of the donor, C. I. 1066; C. G. 954; or when it imposes on the donee the burden of satisfying any future debts whatsoever of the donor, C. I. 1067; C. G. 945; or when it establishes that, if the donee or his children die first, the donated thing is to revert to someone other than the donor himself, C. I. 1071; C. G. 956; except in the case in which testamentary substitution is permitted, C. L. 1473; and according to the same C. L. 1474, substitution in favor of a third person, contrary to the preceding disposition of the law, is null, but does not produce the nullity of the donation. So also C. H. 641. One can, however, donate under reservation of usufruct for himself, and, when he is gone, also for others, but not by calling others successively one after another. C. I. 1074. Cf. C. G. 949; C. H. 640. - If the donor reserves to himself the faculty of disposing of some object or some sum which is included in the donation itself, if he dies before that disposition, such object or sum passes to the heirs of the donor, not to the donee himself, notwithstanding any contrary clause.

C. I. 1069; C. G. 946. It is otherwise according to C. L. 1464; C. H. 639. In favor of the donee, to whom at once the ownership of the donated thing is irrevocably transferred, namely a right in the thing; whence donation differs essentially from a promise, which gives only a right to the thing. Nor is delivery of the thing required, as is openly clear from C. I. 1062, 1125; C. G. 938, 1138. Cf. Rogron on aa. 711, 937, 1138; L. 732. But delivery is required by C. A. 943, if the donation is verbal; and by C. H. 632, if a verbal donation concerns a movable thing; otherwise in both these Laws it does not obtain effect. Cf. 1011. Who accepts: without acceptance there is as yet no donation, both in positive law and in natural law. For this reason it can be revoked, even if it has been confirmed by oath, because the oath follows the nature of the act. C. I. 1057; C. G. 952; C. H. 629; Lugo d. 23. n. 42; Inst. 1. 2. t. 7. § 2; L. 725-727.

Whether an absent person sufficiently accepts a donation when he receives the message or the donor's letters? "A donation made to an absent person, if it is made through a messenger, can be revoked until it is accepted before the messenger; for it is not sufficient if it is accepted before others. But if the donation is offered by letters, Viva says it is sufficient that the letters reach the donee. But Lessius and the Salmanticenses say that more is required, namely, that letters or a messenger of acceptance be sent back, so that the donation may be valid." L. 725, 728. Certainly, in a gratuitous contract, because it produces an obligation in one person only, the union of wills seems sufficient in that one person alone who acquires the right. Cf. here n. 340. This as regards natural law. Cf. n. 940. As regards positive law, cf. 1011.

What if the donor, after sending a messenger, has revoked the donation? If the donor revokes the donation before it is accepted, and the revocation becomes known to the messenger whom he sent, the messenger can no longer effect anything; since every power of offering or delivering has been taken from him. - But if the revocation does not become known to the messenger before execution, then a distinction must be made: either he acts only in the manner of a messenger reporting another's donation, or delivering the thing, or he has a mandate to make the donation. If the former, the subsequent donation is invalidated by the revocation that has been made, because consent on the part of the donor is entirely lacking. If the latter, his acts are valid, and the donation can be validly accepted. For the mandator is bound to ratify what by force of the mandate has in good faith been done in his name. This as regards natural law. As regards positive law, cf. 986, 1011.

"Whether after the death of the donor a donation can be validly accepted? - Lessius distinguishes. If the donation has already been made, and the donor before death sends a messenger or letter, then he judges that it can be accepted. The reason is that the donation remains virtually in the letters or messenger sent. And Sanchez, Lugo, and Viva probably hold the same. But Lopez ... and others more probably deny this ... and the Salmanticenses judge it probable, because after the death of the donor his will cannot be united with the consent of the donee, as is required for acceptance.... But if, say Lugo, Lessius, and Sanchez, the donation has not yet been made, but has been ordered to be made by a messenger, even through a gift sent by him, then after the death of the donor the donation can no longer be accepted, from L. Inter causas ff. Mandati, etc., where it is expressly declared that a mandate expires after the death of the mandator. Notwithstanding this, however, Sanchez says that the donation can be accepted, because here the mandate, since it is a certain favor granted, does not expire by the death of the mandator.

And Lessius and Viva, etc., deservedly think this probable.... Nevertheless it must be noted with Lugo, Molina, and Sanchez, from the same L. Inter causas, that if the donation has been made by a messenger, while the messenger and the donee are unaware of the death of the mandator, then the donation will be valid." L. 730; Lugo Resp. Mor. 1. 4. d. 6. n. 6; Ithur. Cas. 8.

But there is a grave difficulty in this, that the donee should validly accept the donation after the donor's death; for then the donor by death has already ceased to be owner of the donated thing; and it can no longer be a donation inter vivos, but a legacy, which is quite different. Cf. 986. - This as regards natural law. As regards positive law, cf. 1011. - Gousset 799; C. H. 623, 629; C. L. 1465.

When the donee has died before acceptance, can his heir accept the donation? Sanchez, etc., affirm it, because the heir represents the person of the deceased. Lessius, the Salmanticenses, etc., however, more probably deny it, because the heir succeeds to the real rights of the deceased, but not to personal rights, such as the right of accepting a donation; because liberality adheres to the person. Lessius nevertheless concedes that if the heir is the son of the donee, he could accept by equity, since such is then presumed to be the mind of the donor. L. 731. Cf. 986. This as regards natural law. As regards positive law, cf. 1011. - C. H. 630.

What, by natural and positive law, concerning the capacity of the donor? By natural law all those can donate who can alienate their goods; for donation is a species of alienation. Hence it is required that the donor be sound in mind, and that he not have been declared incapable by law when he completes the donation. From Roman law the following are incapable of donating: 1. Those who are both deaf and mute from birth, unless they know how to write. 2. Those condemned for a capital crime. 3. Wards or minors below puberty, unless it concerns things of slight importance. 4. Spouses between themselves, unless the donation is of slight importance. 5. A father toward a son remaining under his power, except for the sake of marriage, war, studies, and the like. 6. "If anyone has brought ruin upon himself by the nuptials of an incestuous and forbidden marriage, let him be deemed to have neither wife nor children from her. Let him, surviving or about to die, give or leave absolutely nothing to the aforesaid, either through an interposed person or otherwise." L. 6 de Incest. et inutil. nupt. C. Cf. Nov. 89, Cap. 15. 7. "If anyone has legitimate children, he cannot leave or give to natural children and to their mother, or to a concubine, more than one ounce; ... or if there are no children, but only a concubine, we permit half an ounce to be left or given to her." Nov. 89, Cap. 12. An ounce is the twelfth part of an inheritance. - L. 721 ff. According to C. L. 1476; C. H. 624, all who can contract and dispose of their own goods can donate. According to C. I. and G., those cannot donate who, by the same law, cannot make a testament; and regularly minors, C. I. 763, 1052, 1386; C. G. 902-904, 1905; wives, C. I. 134; C. G. 217, 905; and incapable persons interdicted and renounced, C. I. 1052, 1387; C. G. 502, 902. - According to C. I. 1054; C. H. 1334, spouses cannot, during marriage, give to one another. According to C. L. 1178 ff., spouses can make donations between themselves; but these are always revocable. According to C. G. 1094, 1096, 1098, 1099, donation between spouses is admitted, yet it is always revocable; and generally they can give to each other, inter vivos or by testament: 1. If there are no descendants, whatever they could give to an outsider as to ownership, and moreover the usufruct of the part of the inheritance reserved to ascendants. 2. If there are descendants, either a fourth part of the goods as to ownership, and at the same time another fourth as to usufruct, or only the usufruct of half the part. 3. If a spouse has children from a preceding marriage, he cannot give to the new spouse beyond the part which falls to the child who receives less than the others, nor exceed a fourth part of the goods.

According to C. Comm. G. 446, acts transferring ownership of goods, whether movable or immovable, by gratuitous title, of merchants who have made cession of goods, within ten days before the sentence of the tribunal declaring the day of the same cession, are null and without effect. According to C. Comm. I. 707, the same acts are null by full right from the day of cession. Cf. n. 1022; L. 721, 723, 724. From Canon Law, rectors of churches, and beneficiaries, as well as all administrators of ecclesiastical goods, and Regular Prelates, cannot donate immovable goods and precious movable goods dedicated to God without the Apostolic Beneplacitum. Extrav. Ambitiosae de Reb. eccles. non alienand. - From Trent, sess. 25, c. 16 de Reg., donations and renunciations, even sworn ones, which are made by those entering Religion, are invalidated unless they are made with the permission of the Bishop or vicar within the two months immediately before profession, and profession follows afterward. Cf. L. 1. 3. n. 935. From the Norms of the S. C. EE. et RR., June 28, 1901, n. 121: "That Sisters perpetually professed may licitly strip themselves of the radical ownership of all their goods by acts inter vivos, the permission of the Apostolic See is required."

Whether someone validly and licitly accepts a donation from one who is burdened with debt? Lessius, Molina, Navarrus, etc., affirm it, and Lugo and Paludanus apud St. Alphonsus think it probable. The reason is that he can indeed transfer ownership, since he is still the true owner of the thing which is donated; while you, in accepting, are not the per se and efficacious cause of the creditor's loss, but only the accidental and permissive cause. The per se and efficacious cause is only the donor, for he himself is the one who determines to make the donation. Therefore, provided you have not induced him to donate, you do not sin against justice. Nor do you sin against charity; for this does not oblige you to reject a grave advantage of your own, in order to preserve debtors unharmed.

But Paludanus, Bonacina, Lugo, and others apud the same St. Alphonsus more truly and more commonly deny it. The reason is that the donee is the true per se and efficacious cause of the creditor's loss; for donation essentially does not consist in the will of the donor alone, but also in the will of the acceptor, without which no alienation or donation exists. Therefore, just as the donor injures justice by rendering himself unable to pay, about which no one doubts, so also does the donee cooperating in the unjust action of the donor with damage to the creditors. Hence he is bound to restitution of the loss. Nor indeed is it valid to object that alienation in itself is not the cause of the creditors' loss, but the condition of the alienator. For this condition in the case either exists from that alienation, or at least is aggravated by it. L. 722; H. A. tr. 10. n. 128. Each opinion seems not to lack its own probability. - Ithur. Cas. 8. n. 12; L. 812, 694, 695; D'Annib. ed. 4, p. 2, n. 433. Cf. here 1005 at the end.

Note: According to C. I. 1091, 1092; C. G. 920, 921, creditors are not granted the right of demanding reduction of a donation made by one burdened with debts. This right is granted only in an inheritance, if the legitime has been injured, to the heir in whose favor the law has reserved the legitime. According to the same C. I. 1235; C. G. 1167; C. A. 953; C. H. 643, creditors can indeed impugn acts done by debtors in fraud of their rights. Alienation is in fraud if by it the debtor has been made unable to pay, and this did not escape the knowledge of the alienator in gratuitous contracts, and of the alienator and receiver in onerous ones. Yet fraud does not harm third parties who, not participants in the fraud, have acquired rights in an immovable before the petition for revocation of the alienation was transcribed. C. I. 1235. Hence the alienation that has been made is valid, and the thing alienated in fraud passes into the ownership of the acquirer.

According to C. H. 643, 1291, 1297, gratuitous contracts of a debtor, when otherwise, by reason of the donation made, the creditors cannot receive what is owed to them, are presumed to have been made from fraud and are rescindable. According to C. A. 950, one who is bound to support another cannot injure his right by a donation made to a third person. He who has been injured in this way will be able to sue the donee, so that the donee may furnish him what the donor cannot.

What, by natural and positive law, concerning the capacity of the donee? By natural law, on the part of the donee there is required capacity to receive. But all human beings are capable who are not constituted incapable by law of receiving donations. Nor are infants, the insane, or others lacking the use of reason to be regarded as incapable, since they are capable of ownership, and can accept or occupy things through others, e.g., through parents, guardians, etc. Cf. 856. From the Common Law the following cannot accept a donation: 1. All who receive from those who cannot make donations, according to what was said in n. 1005. 2. Those receiving from persons who are burdened with debt, in fraud of creditors; and these are bound to compensate the loss which thence befalls the creditors. 3. Those receiving in defraudation of the legitime which is owed to necessary heirs. 4. Spouses. Generally the reciprocal donations of spouses are invalid. Exceptions: Unless the donation has been confirmed by oath; if the death of the donor intervenes, who dies before the donee, provided the thing was delivered during life; if the donation is remunerative, or is made mortis causa; if a wife gives to her husband so that he may obtain some dignity. L. 722, 723, 740. 5. "We allow chief physicians to receive what the healthy offer for their services, not what those in danger promise for their health." L. 9 de Professoribus et medic. 6. No one can give to a second spouse, whether by donation inter vivos or by an act mortis causa, more than to a son or daughter of a preceding marriage. L. 6 de Secund. nupt. C. 7. "He who perhaps has contracted nuptials contrary to the precepts of the laws, or contrary to the mandates and constitutions of Princes, shall obtain nothing from that same marriage, whether it was given before the nuptials or afterward in any manner whatever." L. 4 de Secund. nupt. C. From more recent Law, donation can be made to all, even to unknown persons, dishonorable persons, and those yet to be born, provided they have been conceived, and afterward are born living and viable, C. I. 1053, 724; C. G. 725, 906; C. H. 627; C. L. 1479; and, according to C. I. 1053, 1059, provided that the one from whom the person hoped to be born is already born, donation can be made to him. He is judged viable who is born after the one hundred eightieth day from conception. C. I. 160, 162; C. G. 312, 314. In doubt, he who was brought forth alive is presumed to have been born viable. C. I. 714; C. A. 23. - But generally those are excepted to whom something cannot be left by testament, C. I. 1053; C. G. 902. Moreover, specifically the spouse is excepted according to C. I. 1054; C. H. 50, 1334. Also excepted according to C. H. 1335 is the child of a spouse from another marriage, and the person of whom someone is the presumed heir at the time of the donation. Therefore to illegitimate children donation cannot be made beyond what can be left to them by testament. But just as a wife cannot give without the consent of her husband, or by the authority of justice, so neither can she accept a donation. C. G. 217, 906; C. H. 61.

According to C. L. 1478, 1489, pure and simple donations made to persons who cannot contract without due authorization produce effect independently of acceptance, insofar as they are useful to the donees. Donations made by a married man to his concubine are null.

Note: According to C. I. 1055; C. H. 628, any donation in favor of an incapable person is null; according to C. G. 911, it will be null. According to C. L. 1481, a donation made to an incapable person produces no effect. Cf. C. H. 1334, 1335.

What is the quantity of goods which can be given? Goods which are in commerce can be donated, and regularly all those which someone has at present, but not future goods; the legitimate portion of the inheritance and what is necessary for his own subsistence always being preserved. Nevertheless one can donate that which he has in determinate hope, e.g., fruits to be born from a certain field this year; fish which he will bring back from fishing, etc.; with regular exception of the hope of a future inheritance, concerning which every pact is prohibited. Cf. 995; C. I. 1064, 1091; C. G. 913 ff., 943, 947; C. H. 634-636; C. A. 944, 951; C. B. 2274 ff.; C. L. 1453, 1460; C. He. 470.

What are the special prescriptions of positive law concerning donation? On the form of donations. Manual donation, from hand to hand, and therefore of movable things, can be made without writing, even according to the more recent laws, which touch only non-manual donations and donations of immovable things. Moreover, unless these are made by public instrument, acts of donation are null according to C. I. 1056, and are subject to the penalty of nullity according to C. G. 931. Exceptions, however, must be made: 1. Donations which are, as it were, conditions of another contract, e.g., I give, I sell you a farm, from which you will give Titius one hundred gold pieces annually; for these donations are something accessory. C. I. 1128; C. G. 1121. 2. Donations by which someone renounces some right of his; for they are donations in a broad sense. 3. Remunerative and onerous donations; for these are not donations properly so called. According to C. A. 943, a donation made only verbally and without effective delivery confers no right of action on the donee. This right must be founded on a written document. - According to C. H. 632, 633, a donation of a movable thing, made verbally, requires delivery; otherwise it will lack effect, unless the donation is made in writing, and the acceptance is established in writing. But a donation of an immovable thing, in order to be valid, must be made by public writing, and acceptance must be made in the same or another writing, which will have no effect unless it is made during the life of the donor. Acceptance, if it is recorded in a separate writing, must be notified to the donor in authentic form. - According to C. L. 1488, 1459, a donation of movables can be verbal, but with delivery of the thing; however, it must be written if it is without delivery. A donation of immovables, if it does not exceed 50,000 reis, can be made by a private writing signed by the donor and by two witnesses. If it exceeds the aforesaid quantity, it must be made by public writing. But in order that they have effect with respect to third parties, they must be registered. - Cf. here n. 1000; Gousset 799 and on a. 948. On the acceptance of a donation. Only adults who are neither under guardianship nor under curatorship can accept non-manual donations and donations of immovable things. C. I. 1059; C. G. 935. Hence, for non-emancipated minors, he accepts who exercises paternal power or guardianship. Emancipated persons and incapacitated persons who have been renounced need the intervention of a curator. C. I. 231, 1059; C. G. 935. But wives according to C. I. 134 can accept without the consent of the husband; but according to C. G. 217, 934 they need the husband's consent. Nevertheless all these, if they accept by themselves, have a donation which is valid also in the civil forum until the other party protests; since restitution in integrum is granted to him, and this is clearly drawn from C. I. 1061. L. 725. - Acceptance must be expressed in the same or another act; and, if a donation has been made to an absent person, it is not understood to have been made before it has been announced to the donor. C. I. 1057; C. G. 932. Hence before this, the donation is as if it had not intervened, and accordingly the donor can meanwhile revoke the donation by his own right. And if meanwhile the donor dies, the donation vanishes. So also according to C. H. 623, 629, 630, 632, 633; C. L. 1465, 1466. For the donor has ceased to be owner of the donated thing; and if the donee could still accept the donation, the act of donation would already be turned into something wholly different, namely into a testamentary disposition. But once acceptance has been made, the donation is perfected, and transfers every right into the donee, without any need of delivery. C. I. 1062; C. G. 938. So also by Roman law, Inst. 1. 2. t. 7. § 2.

Moral bodies also cannot accept donations unless the faculty has been obtained from the Government. C. I. 1060. This disposition of the Law is in no way valid for the Church. On donation in view of marriage. Donations in view of marriage can be made and received by a minor, with the intervention of those whose consent is needed according to Civil Law for contracting marriage. They can also be made and received by an incapacitated person, with the intervention of a curator. C. I. 1386, 1387; C. H. 1329. Donations made to one or both spouses are not for that reason judged also to have been made to children to be born according to C. I. 1062, but they are indeed made to them according to C. G. 1082, if namely the spouse donee dies before the donor. These donations, made in contemplation of marriage, cannot be impugned because of defect of acceptance, C. I. 1062; C. G. 1087; C. H. 1330; nor can they be revoked because of ingratitude or because children have been born, C. I. 1087; C. H. 1333. Cf. C. G. 960. But they are null if marriage does not follow, C. I. 1068; C. G. 1088; C. H. 1333; C. A. 1247, or if it is pronounced invalid; nevertheless rights acquired by third parties remain, indeed also the rights of children, if at least one of the spouses contracted it in good faith. C. I. 1068. - Inst. 1. 2. t. 7. § 3. Cf. here n. 1022. On the nullity of donations because of omission of legal forms. Donations null in the external forum because of defect of form are not also null in the internal forum. This is clear: 1. Because, generally, a natural obligation independent of civil obligation is admitted according to C. I. 1237 and C. G. 1235. Hence he who has voluntarily satisfied a natural obligation cannot reclaim what has been paid. Therefore there is a certain natural obligation to satisfy a donation which has not been clothed with the formalities prescribed by law. And as regards C. I., this is most clearly confirmed by art. 1311. - 2. Donations under the form of an onerous contract, e.g., of sale, between persons capable of disposing of their own goods and of receiving, are certainly valid if they contain nothing contrary to the laws. And this is proved from actual jurisprudence. Moreover this jurisprudence openly shows that the prescribed formalities of donations do not touch the donation itself, but only the act or instrument of donations; otherwise all donations disguised under another onerous contract would be null. - 3. For the law itself in reality does not speak of the donation, but of the act of donation, or of the instrument in which the donation is contained; namely, that the donation may be valid with respect to third parties, and in the external forum. Only the act is subjected to nullity unless it has been made according to the prescribed form. C. I. 1056; C. G. 931. Cf. C. I. 1310, 1311, 1312, 1316, 1320, etc. An act is certainly understood to be perfected when it has been made according to law, because we must take the words of the law with effect, unless the law itself has openly expressed something else. Hence nothing essential, whether by its nature or by law, ought to be lacking to it. 4. It is commonly handed down that according to the laws no formality is required for manual donations. This is drawn from the fact that the formalities prescribed in C. I. 1070; C. G. 948 are not required for the donation itself, but for the act of donation. Therefore the same holds for non-manual donations and even for donations of immovable things. The same seems to have to be affirmed according to C. A. 943. For defect of forms does not take away the right in the thing, but the right of action. There is a graver difficulty from C. H. 633, in which mention is made not of the act of donation, but of the donation itself. But even here the Code admits a milder interpretation; for it is said that, IN ORDER THAT a donation of an immovable thing BE valid, it must be made by public writing. Therefore it is not invalid by the law itself, by full right, if made otherwise. Hence also according to this Code the defect of forms renders the donation only rescindable by the sentence of the judge. According to C. B. 518, a legitimate form is required for the validity of a donation. Yet the execution itself of the promised thing supplies it. Cf. here n. 936; Gousset on a. 931. On simulated donations. Simulated donations are those which are hidden under an onerous contract, namely when the profit received from that contract is altogether notable, and with the intention of donating someone therefore sells or rents the thing for less. These donations are valid as to form, if the act under which they lie hidden is valid as to its proper form, provided they have not been made to those to whom it is not permitted to donate, or beyond that which it is permitted to donate to them. C. I. 811, 1010, 1011; C. G. 853, 854, 918.

What is the obligation of donation? - Once the donation has been perfected, the donor is bound at once to hand over the thing which he has donated; and if he has destroyed it, alienated it, or made it worse, he sins gravely in a grave matter, and is bound to compensate the donee for every loss. The donee likewise is bound to fulfill the burdens attached to the donation. And if the donee has not obeyed the imposed conditions, the donation is resolved, namely, if it was made under a resolutory condition. C. I. 1065, 1078; C. G. 953; Lugo d. 22. n. 42.

What are the cases in which donations do not obtain their full effect? - There are these two cases: reduction and collation.

What is reduction? Reduction is: the rescission of a donation or legacy in proportion to the excess above the disposable quantity, which rescission must indeed be made by public authority. The reason is that the legitime should not be injured contrary to right. Rescission, and therefore the act, is valid, and one can retain what he has received if reduction is not demanded. But it cannot be requested except by those for whom the law reserves the legitime. Nor indeed can they, during the life of the donor, renounce this right. If the value of the donations exceeds or equals the disposable quota, the testamentary dispositions are without effect. But if the testamentary dispositions exceed the disposable quota or the portion of this quota which would remain after deducting the value of the donations, reduction is made proportionately without any distinction between heirs and legatees. Meanwhile the donee makes the fruits of the donated thing his own during the life of the donor. Manual gifts also are to be reduced, provided they are immoderate, so that excessive inequality among the children would be had thence. Immoderate, lest parents be dealt with as though they were managers of the affairs of the children. Immoderate, with attention to the conditions of the amount of the patrimony, the person giving, the cause of giving, etc. Therefore provision is made for the legitime of children by computing into the inheritance left at the time of death the things which the deceased, while living, had previously donated to outsiders: namely, for the determination at that time of the legitimate and disposable part; for the legitime is owed only from that time of death. Hence one mass, as it were, is formed from those things which the testator left when dying and from those things which he donated while living, so that the legitime may be taken from this mass. But also the debt which perhaps the testator left must be deducted. It is deducted, however, not from the donated things, but from the things left. For the things donated, since they had already been alienated by the testator, are not obligated to creditors. According to C. He. 527, alienations made by the disposer with the manifest intention of eluding the dispositions concerning the legitime are subject to reduction. - Cf. here n. 673; C. I. 821-824, 1091 ff.; C. G. 920 ff.; C. H. 654 ff., 887, 818 ff., 1036, 1039, 1040, 1044; C. L. 1482, 1493 ff.; C. He. 474 ff., 486, 522 ff.; C. A. 951, 952; L. 740.

What is collation? Collation is the act by which one of the heirs brings back into the sum of the goods which the testator left to be divided among the heirs those goods which he received from the donor, so that they may be divided equally among all; unless he rather wishes to renounce the inheritance, for this is an obligation of heirs, and then he can retain those things up to the concurrence of the disposable part. The reason is that, lest equality among the children be injured, the law presumes that the testator did not so much donate as, as it were, give a part of the future inheritance. As it were; for it is a true donation: since it is in the power of the donee to renounce the inheritance and to retain the donated things up to the disposable amount, if more has been donated to him.

C. I. 1001, 1014 imposes collation upon sons and descendants only toward other descendants who are coheirs; not likewise toward legatees, or creditors of the inheritance, and other heirs. But coheirs can request collation for determining the computation of the legitime, not for completing the disposable portion. C. B. 2050 ff. likewise imposes collation only upon descendants. C. H. 1035; C. A. 787 impose it upon the necessary heir. Likewise C. He. 626; C. L. 2098 impose it only upon legitimate heirs. But C. G. prescribes collation indiscriminately for any heir, 843-846, 857. Collation in two ways can be made: 1. In kind, i.e., by bringing back the donated thing itself. 2. By receiving less. The former mode is made ordinarily in immovables, the latter in movables. C. I. 1015 ff.; C. G. 858 ff.; C. H. 1045 ff.; C. He. 628; L. 954; C. L. 2100 ff.

What are the exceptions of collation? - Various donations are exempted from collation: 1. Those which the testator gave while expressly exempting the heir from collation, or under the title of a preferential right (antiparte), within the limits of the part of which he was able to dispose. C. I. 1001; C. G. 843; C. H. 1036, 1038; C. L. 2099. According to C. I. 1004, 1006, 1012, donations of ascendants made to a descendant of the heir are presumed to have been made with dispensation from collation; likewise donations made in favor of him or her who is the spouse of a descendant. Nor is an immovable subject to collation if it has perished by chance and without fault of the donee. Cf. C. H. 1038-1040, 1045; C. G. 847-860, 855. - 2. If expenses were made by the donor in someone's favor, e.g., for food, clothing, customary gifts, etc. Likewise expenses of education, nuptials, learning a craft, and similar things. For these are owed by equal right to all children from natural law itself, from piety, from paternal custom. C. I. 1009; C. G. 852; C. H. 1041, 1042, 1044; C. L. 2105; C. He. 629, 631, 632. 3. The fruits of things subject to being brought back, which the donee received before the death of the testator. For these were never in the patrimony of the father. C. I. 1013; C. G. 851; C. H. 1049; C. A. 789 ff.; C. B. 2050 ff.; Gousset on a. 852; L. 958, 959.

Whether a son must bring back expenses made by a father of slender fortune for him to be promoted to the priesthood? Resp. Negatively, generally speaking, because those expenses redound to the common good of the family, namely to its honor, advantage, etc., and these are judged to have been given gratuitously by the parents. But the patrimony given by the father to the son for receiving sacred orders must be brought back into the division of the inheritance, because it can be equated with the dowry of a daughter, which necessarily must be brought back. Otherwise equality among the children would be injured, which collation intends to prevent. This is also clear from C. I. 1007; C. G. 851; C. H. 1035, 1043, 1046; C. A. 788; C. He. 626; C. L. 2104; L. 488, 455, 456.

Whether expenses made by a father for the sake of a son for a doctorate, benefice, studies, books, etc., must be conferred? - Resp. Negatively, for these redound to the common good of the whole family, honor, advantage, etc. Exception: if expenses are made which are altogether extraordinary. C. B. 2050; L. 724, 950, 955. According to C. H. 1043 they must be conferred. They must likewise be conferred according to C. L. 2104. Cf. C. A. 792.

Whether money used to redeem a son from military service must be conferred? Resp. Affirmatively, if he is redeemed for his own utility, because equality seems to require this; otherwise, if the son is redeemed for the utility of the father, e.g., sick, old, or poor, or for sustaining the family, because the family which receives the advantage must also bear the burden. Rogron on a. 851 Cod. civ.; Gousset 729 and on a. 852; L. 955. - According to C. H. 1043 and C. L. 2104 it must be conferred.

Whether a son is bound to bring back those things which he badly spent from the paternal goods, e.g., in games, drinking, etc.; and those things which the father paid to extinguish his debts? Resp. To the 1st, negatively, provided the son did not badly consume more than the father was content that he should spend on his own support and honest recreations; otherwise, if the expenses had exceeded. Resp. to the 2nd: Those things which were given for paying debts must be conferred, unless they were contracted in lesser age and he was not made richer thereby. For these are understood to have been given by the father with exemption from collation, since the son would not be bound to pay those debts, and restitution in integrum would be granted to him by the laws. - But if the son is a debtor to the father, he is indeed compelled to impute to his own part what he owed him, as debtor, just as any other debtor would have had to restore to the heirs, not as heir and by right of collation; for only donated things come into collation. C. I. 991, 101; C. G. 829, 843; L. 543, 544, 957; C. H. 1043; C. G. 851; C. I. 1007; C. A. 788.

Whether the law of collation obliges in conscience? "The law of collation regards both the external and internal forum. Nevertheless, when it is certain, whether from the verbal declaration of the donor or from various circumstances of fact, that the donation was made with exemption from collation, although this exemption, because of defect of an authentic document, cannot be proved in the external forum, the donee is not obliged to collation. But, generally speaking, the donee cannot retain the excess over the legitimate part, whatever the will of the donor may be." Gousset on a. 852. For the will of the donor was not to donate absolutely, if he did not at least implicitly dispense from collation, by imposing, e.g., on the donee the obligation of never manifesting to anyone the gifts received.

What are the exceptions to the irrevocability of donation inter vivos? - A donation 1. is resolved, but not by full right, if the attached conditions are not fulfilled. Cf. C. I. 1078, 1079, 1080; C. G. 953, 954, 956; C. H. 647, 651, 1333; C. B. 525 ff. 2. It can be revoked if the donee shows himself ungrateful toward the donor in the cases and time determined by law. Inst. 1. 2. t. 7. § 2; C. B. 530; C. I. 1081, 1082; C. G. 955, 956, 957; C. H. 648-650, 653; C. L. 1482, 1488 ff.; C. A. 948, 949; unless, however, they are donations on account of marriage, and also according to C. I. unless they are purely remunerative donations. C. I. 1087; C. G. 959. 3. But it is revoked by full right according to C. G. and C. H., but not by the law itself according to C. I., because of offspring supervening, even if that offspring had already been conceived at the time of the donation, even also if it was born posthumously, or if the donor has legitimated a natural son born after the donation; excepting according to C. G. mutual donations of spouses, or of ascendants in favor of spouses, made on account of marriage; excepting according to C. I. remunerative donations and those made on account of marriage. According to C. H. 1333, donations on account of marriage are not revoked unless the marriage does not follow. According to C. L. 1482, 1483, 1486, the donor can revoke the donation because of the supervening of children, unless at the time of the donation the donor already had a legitimate descendant, or unless it was made on account of marriage. Nor can he renounce this right. Certainly just and pious is the presumption of law, that a donor lacking offspring made the donation with this virtual or tacit condition: Unless I acquire children; for everyone is judged tacitly to wish to prefer his own to outsiders. Hence every contrary agreement is also regarded as null. But since in this case the donation is revoked by the law itself, it does not revive through the death of the offspring. C. I. 1083-1087, 1090; C. G. 960, 961-966; C. H. 644-646. - According to C. A. 954, by the reception of children, donations do not vanish. 4. All donations inter vivos made by either spouse to the other can always be revoked. Nor indeed does the wife need the consent of the husband or the authority of the judge. C. G. 1096. According to C. B. 519, 528, the donor can fail to execute a donation if he is in need, or if he cannot fulfill the obligation of supporting others, and he can revoke a completed donation. According to C. A. 947, 954, if the donor suffers need, he can demand the fruits of the donated thing. The same right belongs to the donor's children born after the donation in a case of need. - According to C. B. 534, a donation which has as its cause a moral duty or a motive of propriety is not subject to restitution or revocation.

L. 738, 739.

Whether a donation made to the Church or to a pious cause can be revoked because of ingratitude, or because of the arrival of offspring? Resp. To the 1st: A donation made to the Church cannot be revoked because of the ingratitude of the Prelate or clerics; because that donation is made principally for the good of the donor's soul, and principally to God, who cannot be ungrateful. Lugo d. 23. n. 175; L. 738. Resp. To the 2nd: "All commonly teach that it can be revoked only as to that in which it is undutiful toward the children, or as to their legitimate portions, not as to the whole. The reason is that as to the portion owed to the children, the donor is not presumed to have preferred the Church, but rather to have wished in the first place to satisfy his own duty of piety. But as to the rest, the Church is judged to be loved more, or equally, with the children; wherefore, just as a donation made to one son is not revoked when other sons are born, except as to their legitimate portions, so it must be said of a donation made to the Church, or to a pious cause." Lugo d. 23. n. 194. "Wherefore the revocation would subsist, and the donation would not revive, even if the children died, because an action once extinguished always remains extinguished." Ithur. Cas. 8. n. 12; L. 739.