ARTICLE II: On Donation

1063. DEFINITION. Donation is the bestowal of one's own thing made from liberality, accepted by the donee. - Therefore three things are required for donation: on the part of the donor, liberality, to which no right compels; on the part of the donee, acceptance, which renders the act perfect; on the part of the thing, transfer of ownership.

Transfer of ownership to the donee is not perfected everywhere in the same way. For in some places it is perfected by the delivery of the thing itself, and elsewhere even before delivery.

a) From Roman and German Law it is perfected by the delivery alone of the thing; and if the donor refuses to make this delivery, an action against the donor is conceded to the donee, since he has a right to the thing.⁰²

b) From Austrian Law the transfer is perfected either by delivery of the thing or by an authentic document subscribed by a notary (Austrian Code, 943).

c) From French, Italian, Spanish Law it is perfected even before the delivery of the thing. Nevertheless, if movable goods, after a donation has been made, are donated or sold and delivered to another, this latter, provided he is in good faith, can retain them, since law thus disposes on account of the public good. - But the unfaithful donor is held concerning damage toward the donee.⁰³

From this you will infer: the donee, as soon as he has acquired ownership of the thing, can use it so that it becomes fruitful, even if, for example, it is a question of money for Masses which were to be said after the death of the donor, provided the possessor furnishes security. Ami du Cl., 1910, p. 111.

The FORM in which donation must be made is accurately indicated by Positive Law.⁰⁴ Yet let the things which we said above n. 1054 be recalled. From the law of nature no form is required. Also, no solemnity is required by Positive Law for manual donations, which are perfected by delivery alone.

From this you will conclude: if parents secretly donate to illegitimate children, for example through manual donations, fideicommissum, something not conceded by law, they are not to be troubled, and much less the children accepting, provided such disposition is illicit under no other title (III, 952).

DIVISION. Donation is distinguished: 1. simple, which is made without limitation, and qualified, which is made under condition or mode; 2. purely liberal, which supposes no obligation in the donor, and antidoral or remuneratory, which supposes an obligation of gratitude; 3. donation between the living, by which someone actually and irrevocably transfers the ownership of his thing to another accepting; and donation on account of death, by which ownership is not transferred into the one accepting unless the donor has died (cf. n. 1068, q. 2).

Note. Civil law favors donations as little as it can; for it restricts the donor's capacity, limits the disposable matter, and prescribes a solemn and therefore more difficult form. Yet in Roman Law donation for pious causes, and in modern Law donation on account of marriage, enjoys peculiar privileges (cf. Spanish Code, § 1327 ff.).

1064. PRINCIPLES. I. All can donate who are impeded neither by nature nor by right. Now, by nature those lacking the use of reason are impeded; but by Right⁰⁵ minors, wives, interdicted persons, etc., are impeded (cf. n. 1037, 1038). Moreover, in various places relative incapacity is in force, for example of spouses toward each other; concerning this incapacity the Law of one's own region must be consulted.⁰⁶

1065. II. One's own and present goods can be donated, by whose cession neither the rights of creditors nor the legitimate of necessary heirs are injured. Thus from Law partly natural, partly positive.

Therefore it is required: 1. that the goods be one's own; wherefore administrators of communities cannot make donations from the patrimony of these communities, unless they are remuneratory, or unless they are expended in alms; - 2. that the goods be present; for future goods are commonly prohibited by Positive Law from being donated, except in the determined circumstances described there;⁰⁷ - 3. that the rights of creditors not be injured; for goods are not understood unless debt has been deducted, as the axiom bears: "No one is liberal unless liberated." But the donee accepting becomes a participant in the donor's injustice, and is held to restitution, provided he knows that the donor is made unequal to restoring (III, 722); - 4. that the legitimate remain intact, or the portion of goods owed to necessary heirs (cf. below n. 1081).

Yet it must be adverted that remuneratory donations are not computed among donations properly so called, when they are made according to the quantity and quality of merit, according to the estimation of prudent men; nor manual donations, which are usually made among relatives and friends, as little gifts, etc. - Nor does civil law prohibit donations from mere revenues; for the legitimate portion owed to necessary heirs consists only in the patrimony, that is, only in the capital, which parents are held by no right to increase.

1066. III. Donation is always revocable before acceptance, even if it has been firmed by oath; it is sometimes revocable after acceptance. The reason for the former is that no obligation can be contracted without the mutual consent of the parties, and because an oath follows the nature of the act. The reason for the latter is that such a change of circumstances can be given that revocation of the donation becomes licit. See other things n. 1068.

As to the first, note: a) Tacit acceptance suffices, for example if a donation is made to one present and silent; because in favorable things silence is held for consent. Otherwise French Code, 894 and 932. Indeed, a donation made to infants has force before the acceptance of the donee, because the law itself accepts for infants (III, 725).

b) But acceptance is not necessary, at least in Roman Law, if donation is made immediately to God, for example in these words: I promise God to give to such a church, etc.; because, since the intention is borne toward God, the donation has force as a vow. But if it is made immediately to a church, hospital, etc., the acceptance of the prelate, administrator, or at least of some private person who accepts in the name of the church, is more probably required. "In doubt concerning the intention of the donor, he is presumed to have had the mind of vowing, because, in pious causes, when a promise is made in absence, commonly the intention is borne toward God" (III, 726).

c) From several Codes,⁰⁸ a donation made in a nuptial pact cannot be impugned on account of defect of acceptance.

As to the second, observe: The causes on account of which a donation, even one accepted, can be revoked are the following: a) If the conditions under which the donation was made are not fulfilled. b) If the donation is inofficious, that is, if it injures children in the legitimate; in which case, it is the common disposition of Law that the donation be reduced to the disposable part. c) If the donee has become enormously ungrateful, for example if he has attempted to bring death on the donor, if he has inflicted grave injuries on him, if he has refused him necessary food. d) If offspring is born to the donor who previously lacked it. But how far the faculty of revoking extends itself in these cases, and what must be observed by the donor, Positive Law recounts, which admits the greatest variety in this matter.⁰⁹ Cf. Pruner, de Jure, I, § 144.

In GERMAN Law (l. c.), the birth of offspring is not a cause of the revocability of donation; on the other hand, another cause exists, namely, if the donor does not have power to support himself according to his condition, namely to procure support owed to spouse or relatives.

1067. IV. All who are capable of possessing can acquire donations. Wherefore it suffices that the donee at the time of the donation is conceived; but a donation made to one to be born is considered made under the condition that he be born alive and viable (cf. n. 741).

By Positive Law, communities are commonly prohibited from accepting donations without the consent of civil authority; and this disposition, insofar as it is a question of communities subject to ecclesiastical jurisdiction, is plainly unjust (cf. n. 874).

Likewise, by relative incapacity, several are prohibited from accepting donations from determined persons, or in peculiar circumstances. The disposition of laws in this matter is not everywhere the same. Yet rather commonly, incestuous and adulterine children cannot accept from their own parents except food alone, and recognized natural children only the legitimate.¹⁰

1068. • Questions. QUAER. 1. If before acceptance the donor or donee DIES, what is the right?

Resp. 1. If the donor dies, the matter is doubtful: some deny that the donation can be validly accepted, "because, after the death of the donor, his will cannot be united with the consent of the donee, as is required for acceptance" (III, 729). But others affirm it, "from the fact that the will of the donor virtually perseveres in the letters, or in the messenger sent, or in the legation given to him of making the donation."

"Supposing that each opinion is probable, I say that if the donee in good faith accepted the donation, and has already accepted the thing donated, he can lawfully retain it." Otherwise if in bad or doubtful faith (H. Ap., X, 130). - But if the donation was made through a messenger, when the messenger and donee were still ignorant of the donor's death, the donation certainly is valid (III, 730).

2. If the donee dies, it is more probable that his heirs cannot accept; "because an heir succeeds in the real rights of the deceased, but not in personal ones, such as is the right of accepting a donation. Yet Lessius concedes that, if the heir is the son of the donee, from equity he could accept, since such a mind of the donor is to be presumed" (III, 731).

QUAER. 2. What must be observed with respect to donations made ON ACCOUNT OF DEATH?

Resp. Donation on account of death has this as proper to itself, that ownership of the thing is transferred to the donee neither immediately nor irrevocably; but only under a double condition, namely that the donor die and that he not revoke the donation. Therefore it differs from donation between the living in that it is revocable; and from testament in that the acceptance of the donee is required (H. Ap., X, 134).

In ROMAN Law, likewise in SPANISH Law,¹¹ donation on account of death has force, provided it is made concerning the disposable part, between capable persons, and is confirmed by the death of the donor. It is revoked by the fact itself if the donee dies, nor does it pass to his heirs (III, 741).

In FRENCH and ITALIAN Law, donation on account of death is not admitted. Concerning it those things have force which were said of contracts entered upon without due form (n. 1054).

In AUSTRIAN Law, donation on account of death has force as a contract if it is accepted and declared irrevocable; concerning which a public document must be handed over to the donee. But if it has the conditions of a testament, it has force as an inheritance or legacy.¹²

In GERMAN Law,¹³ donation on account of death is not admitted; but promise of donation on account of death is recognized, that is, a promise of donation made under this condition, that the donee survive the donor; it has force as a last will.

But here it must carefully be noted that not all donations made by occasion of death are donations on account of death. Thus, for example, a donation made irrevocably, even if under the condition of death, for example I give you this thing, if I die in this danger, is truly a donation between the living, since the condition does not depend on the will of the donor. A fortiori, a disposition is to be held as a donation between the living by which a sick man actually and irrevocably donates a thing, whether movable or immovable, to a friend or relatives.