§ II. On Donation

I. Notion. Donation is a gratuitous giving, whether of a thing or of a right to a thing, made to another. There was added or of a right to a thing; but concerning a donation of this kind, which we have also called a promise improperly so called, enough was treated in n. 863 and following.

II. Division. Donation is especially divided:

1. Into donation inter vivos and mortis causa. The former is had when someone irrevocably gives something. The latter, when he gives revocably, so that the donation does not become irrevocable except after the death of the donor; it differs from a testament insofar as the latter is made in the final instant of life, whereas the former is made in the course of life.

2. Into purely liberal and antidoral, or remuneratory, according as it supposes no obligation or an obligation of gratitude.

III. Capacity of giving. Capable of giving are all who enjoy the full use of reason, and have goods of their own and the administration of them, unless they are excluded by law. But who are excluded by law, and to what extent, see in the ecclesiastical as well as the civil Code.

Corollary. One who neither can nor will be able in his own time to pay debts gives validly indeed, but unjustly. He gives validly, because he has ownership of the thing which he gives. He gives unjustly, because by giving he renders himself more incapable of paying debts (St. Alphonsus, III, 722).

IV. Capacity of acquiring from donation. All human beings who are not excluded by law can acquire from donation, even infants and the perpetually insane. Nevertheless, one who accepts a gift from him who is absolutely unequal to paying debts seems to be guilty of injustice and to be obliged to restitution, if he accepts conscious of the debtor's inability, and this holds even if he has not induced him to give. Thus St. Alphonsus, Cajetan,¹ St. Antoninus,² and the much more common authors. But the reason is that by accepting he efficaciously cooperates in increasing the debtor's inability, and thus in inflicting injury upon the creditors; "for the contract of donation does not consist in the will of the donor alone, but also in the will of the acceptor, by which the contract is constituted, and without which no alienation or donation exists" (St. Alphonsus, loc. cit.). Nevertheless:

1. If he proceeded in good faith, he is bound only to restore the thing accepted, if it exists; or, if it no longer exists, insofar as he has been made richer.

2. One who doubts whether the donor is unequal to paying debts licitly accepts and retains the gift; he also licitly retains it if afterward he doubts whether at the time of donation he was unable.

¹ Opuscula, tom. 2, tr. 8, q. 4, v. Ad obiecta.

² Part 2, tit. 1, cap. 9, §§ 11 and 12.

V. Intrinsic form of donation. The intrinsic form of donation is constituted, as in every contract (n. 834), by the consent of each party, in the case the consent of the donor and the consent or acceptance of the donee (St. Alphonsus, III, 725). It is said:

1. Acceptance of the donee; for "no one by natural law can acquire any right in the things of another without his own consent; wherefore, without acceptance of the donation, no right over the thing given is transferred to the donee; and therefore, since the giver remains immune from any obligation before acceptance of the donation, he himself will indeed be able to revoke it at his pleasure" (St. Alphonsus, loc. cit.).

The same, for the same reason, has force even if there is question of remission or condonation of a debt made by way of donation. Indeed, the creditor can, without the consent of the debtor, and even with him resisting, renounce his right; and once this is posited, there follows for the debtor a right of retaining his own thing. But this is not done by way of donation, or of an act by which the creditor grants something to the debtor.

2. Acceptance of the donee; by which the mandatary of the donee is not excluded, since he acts in his place, and therefore can accept in his name; indeed, according to St. Alphonsus and others, anyone, as gestor of affairs, can accept a donation made to a church or to some pious cause (III, 726).

It is disputed 1 whether, when the donor has died before acceptance, the donee can nevertheless validly accept the donation. Some deny this, because the will of the acceptor can no longer be united with the will of the giver, since that will has expired. Others affirm this, because in the case the will of the donor juridically persists in the disposition itself that has been made, as was said about the will of the testator (n. 814). St. Alphonsus regards each opinion as sufficiently founded (III, 729); and, this being admitted, practically I would permit each party whose interest is involved to pursue his right in an orderly way. If, however, civil law requires acceptance for the validity of the donation, certainly before the death of the donor, the party whose interest is involved can appeal to this law, and thus acquire for himself the thing about which there is question.

It is disputed 2 whether, when the donee has died before acceptance, the heir of the donee can accept. This must be denied, because the heir succeeds into the real rights of the deceased, but not into personal rights, such as the right of accepting a donation. Except if the donation is judged to have been made also with a view to the family, the heir of the donee; in which case the family itself also is held as the donee (St. Alphonsus, III, 731).

It is disputed 3 whether a mandate of giving expires by the death of the mandator in such a way that it can no longer be put into execution. Some affirm this, because a mandate is simply extinguished by the death of the mandator. Others deny this, because in their opinion a mandate can juridically persist after the death of the mandator; St. Alphonsus regards this opinion as solidly founded (III, 730). While the doubt stands, practically I would permit the mandatary to execute the mandate; yet likewise I would permit each party whose interest is involved to pursue his right in an orderly way. If, however, civil law favors some party, it is deservedly appealed to.

VI. Extrinsic form of donation. With natural law alone considered, it suffices that consent be externalized either by words, or by writing, or by some fact; and therefore neither a public instrument nor delivery of the thing is required. To what extent these things are required by civil law, learn from the Code of one's country.

VII. Rescission of donation. 1. A donation inter vivos, once perfected, cannot be rescinded by the donor, because the donee has acquired a right in the thing, of which he can no longer be despoiled by the donor. But positive laws, which you should inspect, establish cases in which the judge can rescind a donation; and it is licit to invoke this sentence of the judge. Moreover, positive laws can also bring it about that in some cases a donation collapses by the law itself; hence with respect to this case also let the law of one's country be consulted.

2. A donation mortis causa, as is clear from the notion handed down, can be revoked by the donor (St. Alphonsus, Homo Apostolicus, tr. 10, n. 134).

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