Article — Konings, Theologia Moralis
ARTICLE I: ON DONATION IN GENERAL
- Definition. - The contract of donation, or of gift-giving, is an agreement by which someone gratuitously grants to another, accepting it, the dominion of his own thing or of his own right. - Whence for the contract of donation a promise of giving is not sufficient, but actual giving is altogether required, and that gratuitous, i.e. a giving which, without debt on the part of the giver and without burden of repayment on the part of the receiver, is voluntarily granted from liberality; indeed in such a way that the giving, insofar as it recedes from liberality, so far also falls short of the perfection and notion of donation.
Notes to nn. 875-882. (1) De Contr. n. 811. (2) Sess. 25. c. 16. (3) L. IV. 722.
- Division. - It is divided 1° into strictly so called or merely gratuitous, and remunerative or antidoral. The former is that which is made with every obligation whatever, both of justice and of gratitude, altogether excluded on the part of the giver, and therefore is wholly founded in his liberality. The latter is that which is made from some obligation, not indeed of justice, but of gratitude, namely for remunerating some benefit received from the donee. - Therefore each donation agrees in this, that it is not owed from justice, and consequently cannot be rigorously or legally exacted. And in such a broader sense each donation can be called gratuitous. But the difference of each is in this, that a donation strictly so called or merely gratuitous excludes every debt, even of gratitude, and therefore proceeds from mere liberality; while a remunerative donation is founded in a debt of gratitude, and therefore falls short of mere liberality. Whence according to the opinion of many, a remunerative donation, properly speaking, is not a donation. Hence it will be permitted more probably to infer:
a) That, when in law, whether Ecclesiastical or our civil law, donation simply is prohibited, as for example the donation of Religious is prohibited in Ecclesiastical Law and the donation of spouses between themselves in civil law, a remunerative donation is not on that account judged prohibited of itself. For a prohibition of this kind, as odious, according to common rules of interpretation, must be restricted to donation properly and strictly such; but merely gratuitous donation alone is properly and strictly donation, not remunerative donation.
b) That, when in Law some certain formality is prescribed for donation simply, the same formality does not on that account of itself seem prescribed for a remunerative donation; for such a prescription, like the prohibition mentioned above, is odious and consequently must be restricted to donation strictly so called, unless the contrary is sufficiently expressed by the legislator. Yet it will be safer to observe the formalities, since the sentence of the judge very often depends on the mode in which he considers the case in fact.
Finally, as to remunerative donations it deserves to be noted with Cardinal de Lugo2 that "there can also be a remunerative donation when you give nothing to him from whom you received the benefit, but with regard to him you give to others who pertain to him."
- It is divided 2° into pure and non-pure or qualified. Pure is that which is made without any limitation; non-pure or qualified is that to which some limitation accedes, namely some condition (n. 869, 870) or some mode (n. 868), by which word the imposition of some burden is usually understood, for example, of paying certain debts of the donor.
A non-pure donation is for the most part called mixed, i.e. partly gratuitous and partly non-gratuitous, and in truth it is such whenever it is made under a mode or under a condition burdensome to the donee.
Yet it must carefully be noted here that the burdens imposed on the donee cannot be so great that they compensate his advantages; because then every species of donation would vanish, as is clear from what was said above under n. 875; but those burdens ought to be so moderate that, notwithstanding them, the giving itself can morally be called, at least from the beginning, gratuitous and profitable to the donee.
- It is divided 3° into perfect, which is also called real in English and our Law, and imperfect, which is also verbal. Perfect is called a donation joined with the handing over of the thing donated, which is as it were the consummation of the donation; imperfect is called a donation not joined with the handing over of the thing donated, but only with the obligation of handing it over in its own time. Yet here for practice it must be noted that an imperfect donation often seems to be present, when it is not really present. Namely it happens more frequently that he who, the words used being considered, at first sight seems to donate, in reality simply wishes only to promise. But if he wishes only to promise, there will indeed be a contract of promise, regularly obligating from fidelity to donate; but not a contract of donation, not even of an imperfect donation.
- Donation is divided 4° into donation inter vivos and donation in prospect of death; this division is very celebrated in Jurisprudence, and therefore claims great attention for itself.
A donation inter vivos is that by which someone so donates that he wills the thing donated, while he is living, to become irrevocably the property of the donee. The word irrevocably imports that the donor cannot seek back the thing donated at his own pleasure, but only in cases expressed by law.
A donation in prospect of death is that by which someone, with regard to his own death, so donates that he wills the thing donated, while he is living, to be able to be sought back at pleasure, and therefore to become irrevocably the property of the donee only when he has died.
Whence donation inter vivos and donation in prospect of death agree in this, that each is a contract, as defined above in n. 828, namely an agreement by which someone gratuitously grants to another, accepting it, the dominion of his own thing or of his own right; but they chiefly and essentially differ in this, that donation inter vivos of itself is irrevocable, while donation in prospect of death can of itself be revoked by the donor at pleasure up to his death. Therefore, in order to discern in practice whether some gratuitous giving, made by the donor and accepted by the donee, is inter vivos or in prospect of death, it matters not so much to attend whether the donation was made in the time of illness or while the donor's death was imminent (for it is certain that a donation inter vivos can be made even by a dying man); but it suffices to attend carefully whether the donation was made irrevocably, or revocably up to the donor's death. In the first hypothesis there will be a donation inter vivos, even if a dying man donates; but in the other there will be a donation in prospect of death, even if a healthy man were to donate. - For a clearer understanding of these things let the following questions be set down.
- Questions. - Query 1° What sort of donation is present in this case: Titius, dangerously sick, gives to Caius, consenting and accepting, a certain sum of money on this law, that it ought to be returned to himself if he seeks it back before his death; but he gratuitously cedes it to Caius if he has not sought it back before death?
Resp. Without doubt it is a donation in prospect of death, since it is revocable at the pleasure of the donor up to his death.
Query 2° What sort of donation is present in this other case: Peter, laboring under a grave illness, gives to John, consenting and accepting, $100, but with a resolutory condition added, that the thing donated is to be returned to himself if by chance he recovers?
Resp. It seems it must be resolved that such a donation is inter vivos, because it is truly made irrevocably (i.e. not revocably at the will of the donor), and a resolutory condition is simply added, whose fulfillment (namely recovery) does not depend on the will of the donor.
Query 3° In what chiefly do a donation IN PROSPECT OF DEATH and a LEGACY, or donation through testament, agree, and in what do they differ?
Resp. They agree in this, that each is revocable at the pleasure of the giver up to his death; but they differ especially in this, that a donation in prospect of death, since it is a contract, requires that it be accepted by the donee before the death of the donor; while on the contrary donation through testament is neither properly a contract, nor requires any acceptance before the death of the testator.
These things having been premised, now we shall strive to explain individually and with attention to our civil Law the several requisites of a valid donation, which are six in number, namely: a) that the donor be capable of donating, b) that the donee be capable of acquiring, c) that the thing be apt matter of donation, d) that the donation be made in due form, e) that it be accepted in the due mode, and f) that it be of itself irrevocable. Whence: