Article I. On Donations Properly So Called

Donation is a gratuitous handing over of some thing actually made to another and accepted by him. Moreover, it is divided:

1st. Into merely gratuitous and remuneratory. The former proceeds from a liberal spirit and excludes any debt whatever, whether from justice or from gratitude; the latter excludes only a debt from justice, and proceeds from a grateful spirit.

2nd. Into real and verbal. The first is had when the thing itself is handed over, so that the contract is properly consummated, and therefore this donation is also called perfect. The other occurs when the thing itself is not handed over, but something else as an authentic sign of the future handing over; this is also called imperfect and is often confused with a promise of donation, from which nevertheless it greatly differs.

3rd. Into a donation between the living and one on account of death. The first transfers dominion absolutely and irrevocably, excepting nevertheless cases defined by law, and it has no relation to the death of the donor. The other occurs in view of death and is revocable at will. Although it differs from a legacy both because it requires the consent of the donee and because it transfers dominion here and now, though revocably, nevertheless it shares in the nature of a testament or legacy, insofar as it is properly completed after death. - Cf. St. Alphonsus, n. 741. - Kenrick, n. 24. - Kent, Comment., vol. 2, part 5, lect. 38, nn. 438, 444, and 448.

I say. For the validity of any donation whatever, it is required that neither the donor nor the donee be incapable of giving or receiving, and indeed whether from natural law or from positive law, at least for the external forum and according to the diverse prescriptions of laws to be indicated below. The reason is that since a donation is a contract, it cannot be made by one party only, and therefore it requires the capacity of each contracting party.

Question 1. Who are those who are judged incapable of donating?

Resp. 1st. From natural law all and only those are incapable who either do not yet have the use of reason or, if they have obtained it, are deprived of sufficient liberty at the moment when they make donations.

Resp. 2nd. From Roman law the following are incapable: 1st, those deaf and mute at the same time from birth, unless they know how to write; 2nd, those condemned for a capital crime; 3rd, wards or the non-pubescent, unless it is a question of things of small moment; 4th, spouses between themselves, unless the donation is of modest moment or is made by testament; 5th, a father toward a son remaining under his power, excepting the cause of marriage, war, studies, and similar things; excepting also a testamentary donation.

Resp. 3rd. From our law the following are incapable: 1st, non-emancipated minors, wives, and interdicted persons, as was said above; 2nd, spouses between themselves, unless certain formalities are employed, or it is a question of things of small moment; 3rd, those who are not equal to paying their creditors. - Cf. Kenrick, n. 24.

Question 2. Who are those who cannot receive donations?

Resp. 1st. From natural law they are all and only those who would receive them from those who from the same law are incapable of giving, whether they themselves have or do not have the use of reason.

Resp. 2nd. From Roman law they are: 1st, all receiving from those who cannot make donations according to what has been said; 2nd, those receiving from those who are burdened by debt, and these indeed, according to the truer opinion, are held to compensation of the damage coming therefrom to the creditor; 3rd, those receiving in defraudation of the legitimate portion which is owed to necessary heirs.

Resp. 3rd. From our law, except those who would receive from those who by force of the same law cannot give, no person is judged incapable, although communities and colleges (corporations), in some States, are deprived of this capacity either totally or in part. Also excepted in Louisiana are physicians, surgeons, and ministers of any worship who furnish service during the last sickness of the deceased. - Cf. Civ. Code of Louisiana, art. 1489.

Question 3. What form is required so that, with our law considered, any donation may be valid?

Resp. If the discussion is of a donation between the living, it must be real and perfect; but if it concerns a donation on account of death, the solemnity of a contract or some document is required for making faith concerning the truth of the handing over. - Cf. Kent, Comment. vol. 2, nn. 438, 439, and 447, with note (b).

Question 4. What is required so that a donation in favor of an absent person may be valid?

Resp. A donation, just like a promise made to an absent person through letters written to him by name, or through a messenger or procurator, must be accepted before the messenger or before him who represents the donor, or through other letters sent to the donor on the part of the donee; for otherwise mutual consent of the donor and donee in the same agreed thing cannot be established. - Cf. St. Alphonsus, Hom. Ap. n. 130.

Question 5. What if the donor, after sending a messenger, revoked the donation?

Resp. If the donor revokes the donation before it is accepted, and the revocation becomes known to the messenger whom he sent, now the messenger can effect nothing further, since every power of offering or handing over has been taken away from him. But if the revocation does not become known to the messenger before execution, then a distinction must be made: either he has himself only in the manner of a messenger reporting the donation of another, or handing over the thing; or he has a mandate of making the donation. If the former, by the revocation made the subsequent donation is invalidated, because consent is altogether lacking on the part of the donor. If the latter, his acts are valid and the donation can be validly accepted. For the one mandating is held to hold as ratified that which, by force of the mandate, has been done in good faith in his name. - Cf. St. Alphonsus, Hom. Ap. ibid.

Question 6. Whether and for what causes any donation already accepted can be revoked?

Resp. A donation on account of death, since by its nature it is revocable at the will of the donor, can always indeed be revoked validly, and, given a just cause, also licitly, no otherwise than a testament.

But a donation between the living:

1st. From natural law can be revoked only when the conditions, if any are present, have not been fulfilled.

2nd. From Roman law for three causes, namely because of the ingratitude of the donee, because of offspring afterwards received, and finally because it is inofficious, namely because it deprives children of the legitimate part of the inheritance.

3rd. From our law, only donations made in fraud of creditors are held void, except Louisiana, where it can be revoked for manifold cause, especially because of the ingratitude of the donee. - Cf. Kenrick, n. 25. - Kent, Comment. vol. 2, n. 440.

Question 7. Can he to whom a certain movable thing has been donated on account of death receive it secretly after the donor has died?

Resp. Affirmatively, provided he is certain concerning the donation and the last will of the deceased; for he has a right in the thing donated, therefore he uses his own right. Besides, the thing was not donated as something to be paid, but as something to be received by the donee himself.

Question 8. Is a manual donation made by a sick person valid under this condition, that the donated thing be restored to him if he recovers?

Resp. Affirmatively, because 1st, it is valid as a donation on account of death; 2nd, it is valid also insofar as it is a donation between the living, if it is not revocable at the will of the donor, but only from the event of health, because then it can be held as a conditioned donation between the living.

Question 9. Is the same donation valid under the condition that it be restored if it is asked for again?

Resp. Affirmatively, more probably, although it is not valid as a donation between the living, which requires that the donor strip himself of his thing irrevocably; nevertheless, it can be valid as a donation on account of death because of the real handing over, which ought to have no less force, although no mention of death is made.

You Will Resolve. - 1st. It is not a donation on account of death but between the living, a disposition by which someone now and irrevocably donates to another the dominion of a thing, the use or usufruct of which he reserves to himself until death.

2nd. Nor are those dispositions to be held as donations on account of death, but between the living, by which the sick actually and irrevocably give to persons present, for example, parents, servants, friends, movable or even immovable things without any condition regarding death.

3rd. Promises which are accustomed to be made in life concerning some thing to be given at death to parents, servants, friends . . . do not have the force of a donation on account of death; nor by force of such a promise will anyone be able to claim even the least thing, because those promises are accustomed to denote nothing other than a mere purpose or good will of making a donation. Therefore one must beware lest servants and friends, etc. . . . more readily interpret the will of the deceased in their own favor, and thus secretly steal any things whatever under pretext of promise or donation. - Cf. Gury, Cases, n. 811 and following.

§1. He who by natural and ecclesiastical law is freely able to dispose of his goods can leave goods to pious causes, whether by an act between the living or by an act on account of death (Can. 1513).