548. Its nature. 1. Donation is a contract by which ownership of some proper thing is transferred gratuitously to another.

a. He who gives is called the giver, but he to whom something is given is called the donee.

b. Donation by natural law is a consensual contract, which before the handing over of the thing given is substantially perfected by mutual consent alone.¹

c. Donation differs from promise (obliging from justice) in that donation transfers a right in the thing, whereas promise transfers only a right to receiving the thing, or a right to an action against the person of the promiser.

2. Donation must be made from one's own things; but because the goods of him who is unable to pay debts are not altogether his own, a donation made by him is indeed valid, but unjust.

a. The donation is valid but unjust both on the part of the giver and on the part of the one accepting, because the giver inflicts injury on creditors and the one accepting cooperates immediately in the injury; for creditors have a strict right of demanding that debts be paid to them from those goods.

b. The donee who, ignorant of the impotence of the giver, accepted the gift, is not bound to restitution; but the donee who, conscious of the impotence of the giver, accepted the gift, is bound to restitution of the gift, both if he induced him to make the donation and if he did not induce him. The reason for the first is that he acquires a right in the thing given, since the donation is valid; but he cooperated in the injury only materially. The reason for the second is that he cooperates immediately in a damaging injury, namely by an action which is not indifferent in itself but unjust.²

¹ From C.A. Section 943, in verbal donation ownership in the thing given is finally transferred by handing it over.

² Cf. Lugo, disp. 20, n. 116. The opinion of Lessius (l. 2, c. 20, n. 168) and Molina (disp. 328), namely that he is not bound to restitution who did not induce the giver to giving, seems to lack all probability.

549. Donation is divided: a. By reason of effect, into donation among the living, by which ownership of the thing given passes to the donee while each contracting party is still living; and donation because of death, by which ownership of the thing given finally passes to the donee after the death of the giver. Of this latter, which is a species of last will, there will be speech below; of the former, here.

Therefore that is not properly a donation because of death which is indeed made in view of death, but in such a way that it at once obtains an irrevocable effect. Of this kind are dispositions by which the sick give to relatives, servants, or friends movable or even immovable things.

b. By reason of motive, into merely gratuitous or purely liberal donation, which supposes no obligation in the giver, and remuneratory or antidotal donation, which supposes an obligation of gratitude in the giver.

Because remuneratory donation falls short somewhat from the strict concept of donation, it has happened that merely gratuitous donation alone is understood wherever donation is prohibited in canon law.

c. By reason of mode, into verbal donation, by which someone by words gives a thing to another, and real donation, by which someone gives a thing to another and at the same time hands it over.

Although a donation which is made in writing is properly a verbal donation, nevertheless the civil code distinguishes it from verbal donation.

550. Required conditions. By natural law a donation made by one person and accepted by another is valid.¹

a. In order that a donation be valid, the acceptance of the donee, and this externally manifested, is always required; hence a donation before acceptance can be revoked, even if it has been confirmed by oath: for an oath follows the nature of the act. Wherefore the opinion which Busenbaum considers probable, namely that a donation made to a pious cause is valid without acceptance, is contrary to natural law.²

b. Besides the offering and acceptance of the thing given, indeed by natural law nothing else is required for a valid donation; but positive law, which generally favors donations less and therefore renders them difficult, requires determinate conditions (manual donations being excepted). Donations which are contrary to the laws can be held valid in the forum of conscience before the sentence of the judge (n. 356).³

c. Donations made to pious causes are governed by canon law; hence if by civil law donations of this kind are declared void either absolutely or under certain conditions, in the forum of conscience even after the declaration of the judge they are valid, provided the conditions are present which natural law demands.

¹ In order that donation produce a civil obligation, from C.A. Section 943 either a public document or handing over of the thing is required; C.G. Section 518 establishes the same.

² Cf. St. Alphonsus, n. 725.

³ According to C.A. a donation made privately is valid, but according to other codes it is not valid.

551. The effect of donation is the transfer, and that of itself irrevocable, of ownership to the donee.

a. Since donation is a consensual contract, it is perfected by the mutual consent of the giver and of the one accepting; but ownership by positive law is generally transferred only by the handing over of the thing.

b. Although a donation valid in itself by natural law is irrevocable, by positive law in certain cases it can be revoked either wholly or in part. This especially holds in three cases: alpha. if the donee has been enormously ungrateful toward the giver; beta. if offspring has been born to the giver contrary to expectation; gamma. if by the donation the children are deprived of the legitimate part of the inheritance.

Other cases can be consulted in the codes.¹ Since these dispositions of law probably have force also in the internal forum, the giver can use them with a safe conscience, unless there is question of a donation made in favor of a pious cause. Therefore children after the death of the father can petition the judge for revocation of a donation, by reason of which they are deprived of the legitimate part.

Note. If the giver or the donee dies before the handing over of the thing, the same holds which above (n. 547) was said in the similar question concerning promise.

Article Third. On Testaments

Since a testament constitutes some mode of hereditary succession and at the same time a species of last wills, some things must be premised concerning each of these matters.

¹ C.A. Sections 947-954, where six cases are enumerated in which a donation can be revoked. C.G. treats this matter in Section 530 ss.