§ I. On Donation Among the Living

This donation is an act or contract by which the donor actually and in an irrevocable manner deprives himself of some thing in favor of the accepting donee.

810. • Donation among the living, even merely verbal, clothed with the due conditions, of itself or by natural law, immediately transfers dominion irrevocably, as is clear from the things said in n. 802. But by positive law donations must be drawn up according to the forms prescribed by law, at least so that they may obtain effect in the external forum.

But as regards Gallic Law these things chiefly are to be noted: 1. the acts by which donations are made are to be drawn up by notaries; 2. acceptance of the donation must be made either in the very act of donation, or must be announced to the donor by another authentic means; otherwise the donation would not be judged perfected; 3. future goods are donated invalidly. Nevertheless this does not prevent someone from being able to donate that which he has in a determinate hope, e.g. fruits to arise from a certain field this year, fish which he will bring back from fishing. - Exception is made for the hope of a future inheritance, concerning which every pact is prohibited (943). 4. From the principles of law it is concluded that manual donations are valid without writing.

811. Questions. - It is asked, 1. What is required that a donation in favor of an absent person be valid?

I reply. A donation, just as also a promise, made to an absent person by letters written expressly to him, or by a messenger or procurator, must be accepted before the messenger or him who represents the donor, or by other letters sent to the donor on the part of the donee; for otherwise the mutual consent of the donor and donee concerning the same object of pleasure cannot be established. - St. Lig., Hom. apost., n. 130 ¹.

¹ The question is usually moved here whether a promise or donation begins to be valid as soon as the promisee or donee has accepted, or only then when the acceptance has been signified to the promisor or donor, who therefore can revoke it before he knows anything of the acceptance.

Concerning this matter St. Alphonsus (book 5, n. 728) writes: "If a donation is offered by letters, Vira says it suffices that the letters arrive at the donee. But Lessius (book 2, ch. 18, n. 45), and the Salmanticenses (ch. 4, n. 73) say that more is required, that letters or a messenger of acceptance be sent back, so that the donation may be valid."

And indeed the Salmanticenses, from whom St. Alphonsus took these things, seem to have attributed that opinion to Lessius, because in him these things are read (l.c.): "If by letters you have offered your promise to an absent person, in order that his acceptance may be valid, so that you cannot go back, it is required that it become known to you in turn by letters or by a messenger sent to you." But 1. it had to be observed that Lessius immediately added (ibid.) that this chiefly has place in respective promises, which require a counter-promise; for all these have this tacit condition: If he to whom you promise in turn promises back and obliges himself: which is done by an external sign directed to the promisor. Although Lessius had also premised the same thing concerning onerous contracts (ibid.): "It is not of the essence of a contract that the consent of the absent person with whom you contract has become known to you. For if your mind is that the contract be valid immediately once the consent of the other has been placed, even before it becomes known to you, it will be valid immediately. Nevertheless this is not presumed unless it is clearly expressed."

2. But besides, now it is not a question of an onerous contract, but of a gratuitous one. But concerning this case Lessius very clearly (ibid.) hands down the opposite of what is attributed to him: "In gratuitous promises or donations," he says, "I do not think it necessary that the letters of acceptance or the messenger have arrived at the donor, because it is not of such great interest to him who gives gratuitously to know that his donation is accepted as it is to him who offers something under a burden and expects a counter-promise to know that the other promises back; of which the sign is that the donor is not much solicitous about knowing it. But it is otherwise in him who enters an onerous contract." Lessius also adds another reason thus (ibid.): "Finally, he who gives gratuitously does not seem to wish to restrict his benefice to this, that it have no force unless he has received letters concerning the acceptance; but rather he desires that it be efficacious as soon as it has been accepted in the due manner." See the same things in Lugo, disp. 22, nn. 33-34, as regards onerous contracts, and nn. 29-30 as regards gratuitous ones.

It is asked, 2. What if the donor, after sending the messenger, revokes the donation?

I reply, 1. If the donor revokes the donation before it is accepted, and the revocation becomes known to the messenger whom he sent, now the messenger can effect nothing further, since all power of offering or handing over has been taken away from him. - Hom. apost., ibid. I reply, 2. But if the revocation does not become known to the messenger before execution, then one must distinguish: either he acts only after the manner of a messenger reporting another's donation, or handing over a thing, or he has a mandate of making the donation. If the former, by the revocation made the subsequent donation is invalidated, because consent on the part of the donor is wholly lacking. If the latter, his acts are valid, and the donation can be validly accepted. For the mandator is bound to hold ratified that which in good faith was done in his name by force of the mandate.

812. • It is asked, 3. Whether a donation is valid if the donor dies before acceptance?

I reply negatively, if he has only given a mandate of making the donation. - St. Lig., n. 730 ². Nevertheless several probably affirm ³, if the donation has already been made, and the donor before death sends a messenger or letter to manifest it. Nevertheless this is not admitted from Gallic Law.

² If nevertheless both the mandatary and the donee are ignorant of the death of the mandator, the donation must be said to be valid. For acts done through a mandatary, as long as either revocation or death of the mandator is unknown, are valid, from sect. 10, Instit. De Mandato, and L. Inter causas 26, ff. Mandati, where it is said: "If nevertheless through ignorance (of the death) it has been fulfilled, an action is said to be competent for the sake of utility." And again in the same place, sect. 1: "If someone has commanded his debtor to pay Titius, and the debtor, after he has died, when he was ignorant of this, paid, he ought to be freed." See St. Alph., n. 730, at the end.

³ Others, namely, prefer as probable, indeed even more probable, the opposite opinion, led finally by this single reason (see St. Alph., book 3, n. 729), that after the death of the donor his will cannot be united with the consent of the donee, as is required for acceptance: as if, namely, that were lacking which in a contract is as it were the essence, namely the consent of two persons in the same object of pleasure. But indeed this reason can seem almost futile. For, as Lugo has it (disp. 23, n. 81), is the will of the testator more joined with the will of the heir or legatee, who often have not even knowledge of the testament except after the death of the testator?

It is asked, 4. When the donee has died before acceptance, can his heir accept the donation?

I reply negatively, more probably, because the heir indeed succeeds to the real rights of the deceased, but not to personal rights, of which sort is the right of accepting a donation; unless perhaps he is the son of the donee ⁴, because then it would be presumed that such is the mind of the donor, as certain ones admit, if not by strict law, at least from a certain equity. Nevertheless some will that the donation can also profit other heirs.

⁴ Lessius, asking (book 2, ch. 12, n. 35) whether an heir can accept a donation, replies: "From the rigor of law he cannot, because it was not directed to them (the heirs). Nevertheless he seems able from a certain equity, because heirs represent the person of the deceased; and it is to be presumed that this is the mind of the donor, that if the deceased cannot enjoy his benefit, it may profit his heirs, unless the contrary is established." Understand this if his heirs are children; otherwise, if they are outsiders.

It is asked, 5. Whether an oath-bound donation, but not accepted, obliges? I reply negatively, because an oath follows the nature of the act; but a donation before acceptance is not firm. Therefore... - St. Lig., n. 727. Nevertheless Laymann affirms, saying that the oath must be observed as long as it can be observed without sin.

813. • It is asked, 6. For what causes can a donation be revoked?

I reply. The donor can obtain this revocation: 1. if the conditions attached are not furnished; 2. if the donee exhibits himself ungrateful toward the donor in cases determined by law (953, 955), unless nevertheless they are donations by reason of marriage (959).

It is revoked by the law itself if to a donor who had no living descendant at the time of the donation a son, even posthumous, is born, or if he legitimates a natural son born after the donation. Certain donations by reason of marriage are excepted ⁵ (960 and following).

⁵ Namely, exception is made if something has been given to spouses by reason of marriage by their ascendants, or to either of them by the other.

It is asked, 7. What can spouses give to each other in turn?

I reply, 1. From Roman Law, generally the reciprocal donations of spouses are invalid. Make exception: 1. unless the donation has been confirmed by oath; 2. if the death of the donor intervenes, who dies before the donee, provided the thing was handed over in life; 3. if the donation is remunerative, or is made by reason of death; 4. if the wife gives to the husband so that he may obtain some dignity. - St. Lig., n. 723.

I reply, 2. From Gallic Law, spouses generally can give to each other mutually among the living, or by testament: 1. if there are no descendants, whatever they could give to an outsider as regards property, and besides the usufruct of the part of the inheritance reserved to the ascendants; 2. if descendants are present, either a fourth part of the goods as regards property, and at the same time another fourth as regards usufruct, or the usufruct of only half the part; 3. if the spouse has children from a preceding marriage, he cannot give to the new spouse beyond the part which falls to the child receiving less than the rest, nor exceed a fourth part of the goods (C.C. 1093-1098).

Moreover, all donations even among the living, made by either spouse to the other, can always be revoked (C.C. 1096). - See Cases, n. 802 and following, n. 822 and following.