Morals of the Church
Library › Prümmer, Manuale Theologiae Moralis › Volume II › Treatise XI. On The Virtue Of Justice And The Opposed Vices › Section I. On Right And On The Virtue Of Justice Itself › Question IV. On Contracts › Chapter II. On Contracts in Particular › Article I. On Gratuitous Contracts › § 2. On Donation

Section — Prümmer, Manuale Theologiae Moralis

1. On Donation in General

271.

271. Five things are required for an efficacious donation: 1. a capable donor; 2. a capable donee; 3. a suitable thing; 4. acceptance by the donee; 5. sometimes a prescribed form of donation.

  1. A donor capable of making a donation is only one who has ownership and free administration of the good to be donated. Therefore neither ownership alone nor administration alone suffices for making donations licitly. Hence a wife cannot, at least without limitation, make donations from goods of which she has retained ownership; nor can a husband make them from his wife's goods of which he has the administration. Civil codes are wont to determine who in particular are incapable of making donations.23 Commonly, the following are wont to be more or less incapable of making donations: infants, the insane, spendthrifts, minors, and wives. By positive ecclesiastical law religious also are incapable of making donations. Concerning this matter see canon law, and especially canon 537. But in favor of pious causes the Code of Canon Law grants the broadest faculty of giving, and does not seem to admit restrictions made by civil laws; for it establishes in canon 1513, § 1: "One who by natural and ecclesiastical law can freely dispose of his goods may leave goods to pious causes, whether by an act inter vivos or by an act in prospect of death."

  2. A donee capable of receiving donations is everyone who is capable of ownership. Hence by natural law every conceived human being can receive donations. By civil law, however, limitations are often imposed;24 thus, e.g., according to French law,25 physicians and ministers of worship cannot accept donations properly so called from the sick when these are made during the illness and treatment. Ecclesiastical communities especially are often prohibited by civil codes from accepting larger donated legacies without a special license of the prince or civil government. In this case civil laws do not bind in conscience according to the most common opinion, which is confirmed from c. 11, X 3, 26. Cardinal D'Annibale26 teaches the contrary, saying: "I judge that those outside the Papal States who do not render what was left to pious causes in a testament invalid by civil law ought not to be disturbed."

  3. A suitable thing, or the object of a donation, can be all goods of which the donor has free disposition. By positive laws parents are prohibited from giving donations which injure the legitimate portion of their children. But a debtor unable to pay cannot give donations of great importance, because he thereby becomes still more unable to pay and unjustly injures his creditors. Therefore both he himself and one who knowingly receives larger donations from one already unable to pay are bound to repair the damage caused to the creditors. Thus, at least, the more probable opinion.27

  4. Acceptance of the donation is necessary, and therefore no donation, even for pious causes, is perfect and valid before acceptance. The reason is that donation transfers ownership to the donee. But no one is considered to acquire ownership without consent; this consent, however, can sometimes be presumed, e.g., in infants.

  5. No determined form of donation is established by natural law, but civil laws are wont to prescribe special forms for making donations, e.g., that the donation be made by a public instrument, which form in ancient Roman law was called insinuation.28 Forms of this kind do not seem to induce a direct obligation in conscience, but only an indirect one, i.e., after the sentence of a judge or in order to avert greater evils. Therefore, if someone freely, without having suffered any fraud, transferred his thing to another by donation, this donation is valid in conscience, at least until it has been rescinded by competent authority, although the statutes of civil law were not observed. The reason is that such illegal donations are indeed rescindable, but they are not invalid by natural law itself.

Revocation. Both modern laws and ancient law permit a donation already made sometimes to be revoked. The principal cases are: a) if the donation is inofficious, i.e., contrary to filial or familial duty, injuring the legitimate portion of children or even of parents; b) if unexpected offspring is born to the donor; c) if the donee has shown great ingratitude toward the donor, e.g., by afflicting him with grave injuries, causing him great damage, or failing to support him in need.29

23 E.g., French Civil Code art. 901ff.; German Civil Code § 104ff.; Swiss Code of Obligations art. 240ff.; Austrian Civil Code § 944; Spanish Civil Code art. 624; Italian Civil Code art. 1052. For England and North America, cf. Tanquerey, Suppl. 20-21.

24 Cf. French Civil Code art. 906ff.; Swiss Code of Obligations art. 241. Cf. also Tanquerey, De iust. n. 710.

25 Art. 909. Cf. Dutch Civil Code art. 953.

26 Summula Theol. mor. II, n. 339.

27 Cf. St. Alphonsus, Theol. mor. l. 3, n. 722.

28 Cf. L. 36, Code 8, 53.

29 Cf. French Civil Code art. 953; Austrian Civil Code § 947ff.; German Civil Code § 528ff.; Spanish Civil Code art. 644; Italian Civil Code art. 1078; Swiss Code of Obligations art. 249.

Promises, Gifts, and Wills