Question Two: On Donation

481. Donation (schenking) is the type of unilateral and gratuitous contract. Etymologically it is, as it were, the giving of a gift, or the liberal giving of some proper thing to another accepting. Giving is an action of the donor sufficient of its nature for transferring dominion, which is done either by handing over the thing, or by the office of words. Whence donation can be defined: a gratuitous and liberal act by which someone without obligation or debt of justice transfers the dominion of his own thing to another accepting; for by this very fact, that he has accepted, the unilateral and gratuitous contract is perfected. It is said:

1. an act, furnished from one side; whence it does not become a contract unless the acceptance of the other accedes;

2. gratuitous, i.e., without obligation and burden for another; for if some obligation were added, donation per accidens would be in some way onerous, and therefore a mixed donation;

3. liberal, without obligation or debt of justice, i.e., no right compelling; whence strict debt is excluded, and indeed such a debt as has not arisen from liberality, for example, from a contract of promise; but moral debt from an obligation of charity or piety, indeed not even of gratitude, is not excluded, although then the donation is not fully liberal. And thus merely liberal donation is distinguished from antidoral donation (i.e., counter-donation) or remuneratory donation, which is made from gratitude, on account of the merit of the donee;

4. transfers the dominion of his own thing, whether it is full dominion, or direct, or useful: thus it grants to another a right in the thing, and indeed of itself here and now;

5. to another accepting, otherwise it would not be a contract; but this is perfected from the very acceptance of the other, whence it is a consensual contract¹ (a. 938).

¹ So also the Italian code, a. 1062; the Spanish, a. 623; the Dutch, a. 1703. - In Roman law it was, and in German law, a. 929, still is, a real contract which is not perfected except by handing over of the thing; before this there is given only a right to the thing.

Therefore a threefold condition is required for donation: on the part of the donor, liberality; on the part of the thing transferred, ownership; on the part of the donee, acceptance.

482. Donation can be made in three ways: inter vivos (onder levenden), causa mortis (ter zake des doods), and by testament (bij uitersten wil). In the first case the transfer of dominion is made actually and irrevocably; in the second, actually and revocably; the third transfers dominion into the future for the time which follows the death of the testator, and at the same time revocably. To these is added presumed donation, through inheritance.

483. Donation inter vivos is an act by which the donor divests or deprives himself actually and irrevocably of the thing given in favor of the donee accepting (a. 894); in other words, an act by which the donor gratuitously transfers actually and irrevocably full or useful dominion.

For this three things are required:

1. the transfer of some good, namely of a thing either corporeal or incorporeal, or of a right, so that the other acquires a right in the thing;

2. gratuitous transfer, and thus it is distinguished from commutation or sale; but if some burden is imposed, there is had a mixed contract, partly gratuitous, partly onerous;

3. actual and of its nature irrevocable, insofar as goods or rights are transferred at once and of themselves irrevocably, so that they cannot be revoked except only in cases expressed by law. Thus it is distinguished from a promise, by which rights in the thing are not actually transferred; and from a testament, by which rights are transferred neither actually nor irrevocably; and from mutuum, by which the thing is transferred with an obligation of restoring it.

484. Conditions required from the nature of the thing for the validity of donation are: the capacity of giving in the donor, which requires that he have dominion together with free administration of his goods; and the capacity of receiving in the one accepting, or capacity of dominion, for which it is at least required that he already be conceived; but other conditions besides are required from positive law (a. 901 sq.). Thus in present-day law, donation is often a solemn contract, for whose validity a special form is required, so that it can be certainly established, and its irrevocability placed in security: thus the French and Belgian code (a. 931); the Italian (a. 1056), Dutch (a. 1719), Spanish (a. 633), Austrian (a. 943), German (a. 518).

Especially according to French and Belgian law:

A. Two conditions for any solemn donation are necessary for validity, namely, if the solemn act is made or must be made for placing the donation in security: 1) that it be made before two notaries, or before one notary and two witnesses, and that the protocol (la minute) be kept with the notary (a. 931); - 2) that acceptance be given explicitly in the same way, so that the donation has no force except from the day of acceptance, or of notification made to the donor (a. 932).

B. Besides, two conditions are required for certain donations, namely: 1) for movable things, for validity there is required an estimative index of all things which are donated, describing the individual things and their price, and signed by the donor and donee (a. 948); - 2) for immovables, which can be subjected to mortgage, the act of donation and acceptance must be transcribed with the conservator of mortgages (a. 939), yet so that the defect of transcription does not render the donation invalid, but only rescindable; but rescission cannot be petitioned by the donor himself or by those who ought to have effected the transcription, but by those whose rights were injured through the donation (a. 941).

C. Yet certain donations are immune from the aforesaid formalities:

1. Manual donations, which are perfected by the handing over of the thing alone, as results from a. 852-868, 2279.² Namely, they have force for corporeal movable things and for titles to the bearer, provided they are made by a capable person: then namely a. 931 is not applied; but not for others, for example, for incorporeal things or for those which are donated without actual handing over.

² So also the Austrian Code, a. 943; the Dutch, a. 1724; but the Italian only for movables of modest value.

2. Donations under the appearance of an onerous contract, for example, of a simulated purchase, as if someone sells a thing for a certain price and in the same act makes condonation of the price or of part of it: it has force provided the donor is capable of giving, the donee capable of receiving, and the contract is made in the proper legal form. Thus also if someone writes on paper, under the form of an onerous contract: "I acknowledge that I owe Peter one hundred francs"; - but not if he were to write: "let it have force for one hundred francs," because this is the form of a gratuitous contract.

3. Accessory donations, namely those which accede to an onerous contract in favor of a third party; as if Peter sells a house to Paul for 50,000 fr., so that Paul gives 10,000 to John: in the case the act of donation has force just as the sale does, because the accessory follows the principal (a. 1973).

4. Donations which are made by way of gratuitous renunciation, as if a creditor remits a debt, or an owner renounces a certain servitude, or a legatee a legacy: they have force, provided they are made in the manner defined by law, as if the written bond in which proof of the debt is had is destroyed.

In the last three cases, a special solemn act is not required, because even without it the end of the law is obtained, namely, that the donation be certainly known and its irrevocability placed in security.

485. Revocation of donation. - Although donation of itself and by nature is irrevocable, yet in three cases, according to law, it can deservedly be revoked (a. 953):

a) if the donee has been judged guilty of signal ingratitude toward the donor, as if he has attempted the killing of the donor, has affected him with cruelties or grave injuries, or has denied him food in indigence (a. 955);

b) if to the donor, who at the time of donation lacked offspring, a son is afterward born, even if he had already been conceived at the moment of donation (a. 960-961);

c) if in an onerous donation, the conditions imposed on the donee have not at all been fulfilled (a. 954).

In the second case, the donation is null by full right (a. 960); in the first and third, revocable (a. 956).

There accedes the case in which it is appended as a resolutory condition: if the donee should die before the donor himself (a. 951), and this condition is verified.³

³ In the Code of Germany (a. 528) there is admitted besides supervening indigence of the family estate; but the birth of offspring is not admitted as a cause.

486. On the value of an informal donation in conscience. - Donations valid from the nature of the thing, but null from the sole defect of legal forms, from the disposition of positive law can be altogether null even before the sentence of a judge, if namely the form is required essentially for the very existence of the donation, so that without it this could not even be conceived; and perhaps such is the intention of French law (a. 893). Yet because this is not certain, donations can be held as valid until the sentence of a judge intervenes establishing it thus; which is altogether necessary in the case in which, because of the defect of another required condition, the act is only simply null or rescindable (n. 454).

But after the sentence of a judge, they are now null even in the forum of conscience, if there is question of profane causes; for pious causes, they more probably remain valid, on account of can. 1513, which seems to be extended to donations inter vivos just as to testaments;⁴ yet others, not improbably, apply can. 1529 and say that donations, by distinction from testaments, in the case are null.⁵

⁴ Can. 1513: "§ 1. He who by natural and ecclesiastical law is freely able to determine concerning his own goods, can leave goods to pious causes, whether by an act inter vivos or by an act by reason of death.

⁵ Cf. Kiselstein, in Rev. Red. de Liège, XI, n. 2. - Can. 1529 sounds thus: "Those things which civil law in the territory establishes concerning contracts both in general and in species, whether named or unnamed, and concerning payments, are to be observed with the same effects in canon law in ecclesiastical matter, unless they are contrary to divine law or something else is provided by canon law."

487. Question: What if the donor by his donation injures the right of another to whom something is owed from justice, for example, if someone cannot pay his debts and does not foresee that he probably will be able to pay? - It is answered:

1° The donor then donates validly because he disposes of his own things: for the right of dominion still pertains to him; whence in this there is no injustice; - but voluntarily he casts himself into the moral impossibility of rendering, and thus he does injury to creditors, because their strict right is violated, that the debtor pay from his own goods.

2° Likewise the donee who, knowing such impotence, induces him to give gifts to himself is a participant in injustice; and therefore he himself is secondarily bound to restore.

3° Indeed, according to many, the same holds if the donee, conscious of that impotence, does not indeed compel him to donation but accepts it, because it is remote cooperation, since he cannot accept except that of which the other can freely dispose. But others deny it, because the donee is not the cause that the debtor wills to donate, and does nothing except use his own right, namely, to accept a thing of which the other validly disposes; whence he is not a cause of the damage of creditors except permissively or per accidens, since it is not certain that he is held from justice to impede this damage.

4° Finally, if the donee is ignorant of that impotence, probably he ought to restore nothing from justice, because on account of good faith he receives without injustice that which the donor validly donates; although nevertheless some say he is held to restitution if the donated thing still exists or he has thereby been made richer.

In practice, for the third and fourth case, because the thing to which he concurs in some way is dishonorable, restitution of the goods which come from the impotent donor is to be counseled.

488. Observation: concerning donation causa mortis.

Under this name comes a gratuitous contract which is made with a view to and under the condition of death: namely by which something is actually given to another, yet so that the donation can be revoked up to the death of the donor. Hence it differs from donation inter vivos, which cannot be revoked except in cases determined by law; and from testament, by which a right is not actually transferred, but only after death. Whence it holds a middle place between each: for while donation inter vivos actually confers an absolute right in the thing, and testament grants a right for the future, and indeed a right to the thing, this donation actually confers a right in the thing, although conditioned, insofar as it is made under the condition that it have force if it is not revoked before the death of the donor: here and now I give you 1,000 fr. to be had after death, unless I shall have acted otherwise.

Today in many laws it is not recognized: French and Belgian law (a. 893, 944, and 946), Italian (a. 1050), Dutch (a. 1703) altogether exclude it; Austrian (a. 956), German (a. 2301 [Original misprint: printed as 230X]), Spanish (a. 620), and Lusitanian (a. 1457) assimilate it to a legacy while it fulfills the same conditions; Swiss law passes it over in silence; - conversely, in English and American law of the United States it is admitted. In Canon Law for pious causes it is explicitly recognized, and can. 1513 has force.

Nevertheless a donation can validly be made under a condition which does not depend on the will of the donor, whether resolutory: unless the donee (or also the heirs) should die before the donor (a. 951); or suspensive: if the donor does not escape the danger of death.

489. Dispositions of Canon Law. - Let the canons be noted:

1535: "Prelates and rectors are not to presume to make donations from the movable goods of their churches, except small and modest ones according to the legitimate custom of the place, unless a just cause of remuneration or piety or Christian charity intervenes; otherwise the donation can be revoked by successors."

1536: "1. Unless the contrary is proved, those things which are donated to rectors of churches, even of religious, are to be presumed to have been donated to the church.

2. A donation made to a church cannot be repudiated by its rector or superior without the permission of the Ordinary.

3. If a donation has been repudiated illegitimately, on account of damages which have arisen from it there is given an action of restitution in entirety or indemnity.

4. A donation made to a church and legitimately accepted by the same cannot be revoked because of the ungrateful mind of the prelate or rector."

§ 2. In last wills for the good of the Church, the solemnities of civil law are to be observed if it can be done; if these have been omitted, the heirs are to be admonished to fulfill the will of the testator."