§ I. On the Conditions of Donation

802. Principles. - I. On the part of the donor it is required: 1. that he not be incapable de facto, that is, that he be sound in mind when either the donation among the living is perfected or the testament is drawn up, and that he act with sufficient liberty; 2. that he not be incapable by law when he perfects the donation or makes the testament.

¹ On the title above. According to the mind of the Author, that donation in general is to be understood here which a little before he defines as the gratuitous cession of some thing in favor of another. And since the same Author, following the Gallic Code (art. 893), establishes a twofold mode of this gratuitous cession, namely by donation among the living and by testament, therefore in this paragraph he wished to embrace the things which pertain to each of these genera of cession. But indeed this disposition of the matter introduces no small confusion, as is easily clear to the reader, since the things which regard one or the other mode of cession are handed down as pertaining to the generic nature of gratuitous cession. Since this confusion of things could not have escaped the perspicacity of the Author, we shall say that he clearly trusted the judgment of the readers and therefore judged that no account should be taken of the danger threatening from this confusion.

II. On the part of the donee there is required ability to receive. But all human beings are able who are not constituted by law as incapable of receiving donations. Nor are infants, the insane, or others lacking the use of reason to be held incapable, since they are capable of dominion and can accept or occupy things through others, e.g. through parents, tutors, etc., according to the things said in the Treatise on Justice, n. 542.

803. Questions. - It is asked, 1. Who by law are incapable of donating?

I reply, 1. From Roman Law the following are incapable: 1. those deaf and at the same time mute from birth, unless they know how to write; 2. those condemned for a capital crime; 3. pupilli or impuberes, unless it is a question of things of small moment; 4. spouses between themselves, unless the donation is of modest moment; 5. a father toward a son remaining under his power, except for the cause of marriage, war, studies, and the like ².

² The things contained in this response are to be taken concerning donation among the living, but not concerning donation in general, which includes also cessions by testament. For spouses and a father in reality are not incapable of those donations by testament. But also that which is said concerning impuberes is not true from every angle. For it holds, speaking absolutely, concerning testaments; but a donation properly so called is not prohibited to impuberes where the authority of the tutor accedes and whatever else is required for the alienation of pupillary goods. Say the same also concerning those things which are added in the second response according to Gallic law. For apart from the fact that minors cannot dispose of anything even by testament unless they have arrived at the sixteenth year, the remaining things pertain only to donations among the living.

I reply, 2. From Gallic Law the incapable are: 1. minors, unless by reason of a conjugal contract; 2. interdicted persons, who need the assistance of a counselor granted by the judges; 3. wives without the consent of the husband or authority of the judge; 4. merchants who are unequal to fulfilling obligations in cases determined by law. - Art. 446, Cod. comm.

804. • It is asked, 2. Who are unable to accept a donation?

I reply, 1. By common law the following would accept invalidly: 1. all those accepting from those who are unable to make donations, according to the things said above, n. 803; 2. those accepting from those who are burdened with debt; and indeed these, according to the truer sentence, are held to compensation for the damage thence coming to the creditor. - St. Lig., n. 722; 3. those accepting in defrauding of the legitimate portion which is owed to necessary heirs. - St. Lig., nn. 722, 740, etc.

I reply, 2. By Gallic Law the incapable are: 1. those who had not been conceived at the time of the donation, or, as regards a testament, at the time of the testator's death; 2. a tutor with respect to his pupillus, before he has given account of the administration of the goods, unless he is one of the ascendants; 3. adulterine and incestuous children, except for the cause of aliments; 4. natural children, even legally recognized, beyond that which is conceded to them by right of succession; 5. physicians, surgeons, pharmacists, who cared for the deceased in his last illness, and also Confessors, if the donation was made during the illness, certain cases excepted; 6. any Communities whatever ³, without the approval of the Prince or of the Prefect, if the donation exceeds 300 fr. (C.C. 25, 762, 338, 906 and following).

³ A law of this kind is owed chiefly to hatred against the Church of Christ and against those professing the evangelical counsels, namely the religious Orders. For it was not enough for the most unjust wickedness of those men (which found no place even among pagans) to have sacrilegiously plundered all the goods of the communities sacred to the worship of God, unless besides they provided by law that goods by which those communities might be restored and sustained could not freely be left to them. And while they were passing these laws, applying a notable hypocrisy to iniquity, they boasted that they wished to protect the rights of all and the common liberty of all! These laws, of course, oblige consciences no differently than a law which perhaps would forbid anyone to bestow alms on a poor man without the approval of the Prince or Prefect.

805. • It is asked, 3. What quantity of goods can be given by those who are able to donate?

I reply. If they have no necessary heirs, they are constrained by no limits. But if they are by no means lacking necessary heirs, it will be permitted to them, by way of donation among the living, to pay out to others that quantity of goods which one who makes a testament can bestow through legacies. Therefore compare the things to be said concerning testaments, n. 825. See Cases, n. 802 and following.