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.

A GIFT is a unilateral contract by which property is gratuitously transferred to another. It differs from a promise in that it takes effect at once, while a promise regards the future, and from such contracts as sale and exchange in that it is gratuitous. A gift iter vivos is distinguished from a gift mortis causa in that the latter is made in contemplation of death and becomes irrevocable only if death follows. If death does not ensue, a gift mortis causa is thereupon revoked. A gift inter vivos was revocable by Roman law on account of ingratitude and for certain other reasons; by English law such a gift is irrevocable (cf. Can. 1536).

By the law of nature any property may be transferred to another by gift provided that the donor is capable of making a valid gift, and it is accepted by the donee. Positive law requires other conditions to be fulfilled in order that a gift may be recognized and enforced in the civil courts. Thus English law requires a gift of chattels to be completed by actual delivery unless it is made by deed. Certain kinds of property can only be given by deed. These and similar provisions do not invalidate a gift which is made without the formalities required by law, but if a gift is disputed, and the authority of the law is invoked, both parties must stand by the decision of the Court. A gift to pious causes is governed by ecclesiastical law, which requires for its validity nothing more than what is necessary by the law of nature (Can. 1513, 2348).

The Church prescribes that in gifts made to the Church or pious causes, the formalities required by civil law should be observed as far as possible,

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).

Sinful Contracts.—There is no form of contract that may not be made sinful as to its substance on account of the wicked offer or consideration (e.g., sale may deal with immoral objects, labor may be given to criminal projects), but there are certain forms of contract that are particularly open to abuse and hence are frequently associated with evil circumstances or results. Some contracts are often illicit according to natural law.

(a) Thus, a gift is sinful, on the part of the donor, when it is made by an employer for the purpose of seducing a servant, and on the part of the servant, when it is accepted for the purpose of encouraging the unlawful attentions of the employer; but if the gift is unconditional, there is no obligation in justice to return it.

(b) Borrowing is sinful, when the lender is in greater need, or when one becomes unduly obligated to the lender; lending is sinful when the lender cannot afford to part with the thing loaned, or when the borrower is encouraged in thriftlessness, or when he will make evil use of the thing borrowed, etc.

(c) Wagers are frequently sinful, since many of them are incitements to sin (e.g., a bet that another is afraid to get drunk), or results of sinful motives (e.g., bets made in order to deceive, or to satisfy avarice, or to live without work), or causes of great evils (e.g., destitution of families, frauds, scandal, and corruption).

(d) Gaming is sinful when the form of the sport is objectionable (e.g., the ancient gladiatorial fights in which the combatants killed each other), or when the motives or circumstances are wrong (e.g., to play as a professional gambler so as to avoid work, to play cards all day Sunday, to play for higher stakes than one can afford, to spend time in “gambling hells”).

(e) Lottery is sinful when the object is bad (e.g., the raffle of an important office with the risk that incompetent persons may be chosen), or when the circumstances are bad (e.g., if persons are led into superstition or idleness and prodigality).

(f) Speculation is sinful in many instances, since it often brings on a gambling fever that makes the speculator useless to himself and his dependents, and causes poverty and crime.

(g) Pawning of property is often unjustifiable, since it makes persons deprive themselves of necessary property in order to indulge in some useless or extravagant whim with borrowed money.

Accepting Gifts from Litigants or Others.—May a judge take money or other goods from those whose interests are submitted to him, such as litigants or lawyers in his court or their friends?

(a) If the goods are extorted by threats or pressure or unjust vexation, the judge is guilty of robbery, since he forcibly takes that to which he has no right.

(b) If the goods are given as payment for the judge’s services during the trial, the judge sins against commutative justice in receiving payment for services already due, since his salary comes from the community and obliges him to administer justice without charge to those who seek it. Neither is it lawful to take money as compensation for trying one case before another, or for hastening a case, or for giving unusual diligence to a complicated case, or for deciding for one side when the evidence is equal on both sides. But the law could permit a judge to collect his expenses from both parties if the trial necessitated a personal outlay of money (e.g., for travel or hire of assistants) and there was no public fund to defray these costs.

(c) If the goods are offered as bribes, in order that the judge may be influenced to act against justice, it is clear that grave injustice is done both to the community and to the party who is injured.

(d) If the goods are given as free gifts, with no condition attached, some think they may be lawfully accepted, if there is little probability that they will influence the judge (e.g., because they are small or given after the trial has ended). But others hold, and it seems more correctly, that both natural and positive law forbids this. Natural law forbids because of the danger (“Presents and gifts blind the eyes of judges, and make them dumb in the mouth, so that they cannot correct,” Ecclus., xx. 31), and because of the mistrust and scandal that will result. It is incorrect to suppose that small gifts and gifts offered after sentence would not have influence, for the contending parties would soon come to vie with one another in making gifts, while judges would begin to think about the gratuities that might be looked for at the conclusion of a trial. Canon Law forbids all ecclesiastical judges and all who assist in court to accept any gifts whatever that are offered in connection with the trial (Canon 1624), and the civil law provides severe penalties for bribes offered as gifts.

(e) If goods are given as a mere alms or from civility or hospitality (e.g., food and drink such as is usually offered to a guest or visitor), it does not seem unlawful in itself to accept them, but, since there is a danger of suspicion and scandal, even this should be avoided.

What is donation? Donation, strictly said, is the liberal conferral of some gift. Of a gift; a gift is whatever is given liberally to someone with the mind that it become the receiver's. Is given, namely from one's own patrimony; hence, if someone, for example, renounces an inheritance or legacy, it is not properly donation. Liberal conferral; for the gift which is conferred on another by donation ought not to be owed to him from justice, nor ought the one giving the gift oblige the other to furnish something else; donation ought to be an act of liberality, and not of justice. C. I. 1050. Meanwhile, nevertheless, a consequent debt of gratitude, or even an antecedent one, is not repugnant to donation, and therefore donation can be remunerative from gratitude, or an act of gratitude, although thus it recedes somewhat from the properties of donation. C. I. 1051. Conferral; for by donation the thing donated is not promised as to be given in the future, but in the present, by act, is given. Conferral; for by natural law, even before delivery of the thing, the thing donated becomes proper to the donee; for donation is a consensual contract, not a real one. But in order that donation induce an obligation in the donor, acceptance by the donee is necessary. For no one by natural law, without his own consent, can acquire a right in another's things. L. 725, 726. It can be accepted either by oneself or through a procurator.

C. A. 938-942; C. H. 618, 619, 623, 629, 630; C. B. 516, 517; C. L. 1452, 1454, 1455. But although donation generally does not hold before acceptance by the donee, nevertheless a donation made to a church or to another pious cause holds before it is accepted. The reason is that the thing is considered donated or promised to God Himself, who is present everywhere and immediately accepts. Ferraris v. Donatio a. 1. n. 26; L. 726.

Of how many kinds is donation? - Donation is divided 1. into liberal and remuneratory. The former is that which is made from the pure virtue of liberality and without a debt of gratitude; but the latter is that which is made at the same time from the virtue of gratitude, and from the motive of compensating this debt. C. I. 1051; C. H. 618; C. A. 940.

2. Into donation mortis causa and among the living. The former is that which is made by the donor in view of impending death, and consequently from its nature is revocable before death, because of this implicit condition imbibed: If I shall have died in this illness, in this danger; or, I shall not have revoked the donation before death. Through it there is had a right to the thing, or even in the thing, which is not had in a testament, and it is essentially revocable, and in this it differs from donation among the living.

He resolves: A disposition by which someone now and irrevocably gives to another the ownership of a thing, while reserving to himself its use or usufruct until death, is not a donation mortis causa, but inter vivos. C. I. 1074; C. G. 948. Nor are those dispositions to be regarded as donations mortis causa, but as donations inter vivos, by which sick persons actually and irrevocably give to persons present, e.g., relatives, servants, friends, movable or even immovable things, without any condition regarding death. Promises which are commonly made in life concerning some thing to be given at death to relatives, servants, or friends, do not have the force of a donation mortis causa; nor by force of such a promise will anyone be able, commonly speaking, to claim even the least thing; because such promises are usually intended to denote nothing other than a mere purpose, or good intention of making a donation at some other time. Care must therefore be taken lest relatives, servants, and friends too readily interpret the will of the deceased in their own favor, and accordingly secretly carry off various things under pretext of a promise or donation.

Whether a donation mortis causa is valid? By natural and common law a donation mortis causa is valid. The reason is that in itself it is a certain legitimate way of disposing of one's own goods, provided it is clothed with the due conditions. Namely: 1. It must be made in view of death; otherwise it would be judged a donation inter vivos. 2. It must be accepted by the donee himself; for no one can acquire a right in another's things unless he first consents. 3. It must not have been revoked. If the donee dies before the donor, it is revoked by that very fact, and it does not pass to his heirs, at least in the rigor of law, because it was not directed to them. It is likewise revoked if the donor survives the danger of death, and the donation was made precisely in view of the proximate danger of death. Inst. 1. 2. t. 7. § 1.

Whether a donation mortis causa is valid also according to more recent laws? - As regards the more recent laws, according to C. B. 2301 ff. a donation mortis causa is explicitly admitted, under the condition, namely, that the donee survive the donor. A contract by which someone is obliged not to revoke it is null. According to C. A. 956, a donation mortis causa, the prescribed formalities being observed, is certainly valid as a legacy. And it is valid also as a donation, if the donee has accepted it, and the donor has expressly renounced the faculty of revoking it, and has handed over to the donee a written document. According to C. L. 1457; C. H. 620, a donation is admitted which has effect at the death of the donor; and it is governed by the same laws as testamentary succession.

According to C. I. 710 and 827, a donation mortis causa more truly is valid, like any other disposition and agreement for transferring ownership in conscience. According to C. G. there is a grave difficulty on account of art. 893, by force of which one cannot dispose of his goods gratuitously except by donation inter vivos and by testament. But more probably it is also valid; for in art. 967 it is said that one can dispose of his goods by testament, whether under the title of institution of an heir, or under the title of legacy, or under any other designation suited to manifesting his own will. But a donation mortis causa is reduced to a testament or to a legacy, or at least is another norm suited to manifesting one's own will. And indeed, if that donation were written in a testament, it would be valid as a legacy. Hence at most the general doctrine of a contract lacking legal forms would have place here. Besides, that donation certainly seems to be valid as a conditional donation inter vivos, as is a donation in view of marriage, cf. art. 1083, if it is not revocable at the donor's nod, but only from the event of health; for then the condition is casual, containing nothing contrary to law. Moreover, if a donation mortis causa is annulled according to French Law, "it is indeed annulled by the sentence of the judge, but probably not by the very fact." Gur. Cas. 816. Namely, there is in this contract its own natural force, which C. G. itself recognizes in several places, aa. 1235, 1311, 1338, etc. Therefore before the sentence of the judge it will be valid in conscience. Finally, "very grave interpreters of the law, e.g., Merlin and Delvincourt, assert that manual donations mortis causa are valid, provided there is delivery or relinquishment (dessaisissement); and the Supreme Court so declared on Dec. 12, 1815." Gur. Cas. 811, Comp. 836; Gousset 797, 798 and on a. 893; L. 741-743.

He resolves: A donation under the condition that it be restored if it is demanded back is more probably valid; for "although it is not valid as a donation inter vivos, which requires that the donor irrevocably strip himself of his thing, nevertheless it can be valid as a donation mortis causa, on account of real delivery, which ought to have no less force, even though no mention of death is made." Gur. 836; C. L. 1473. He to whom a movable thing has been given mortis causa can secretly take it after the donor has died, provided he is certain about the donation and the last will of the deceased. For the thing was not given so that it would be paid by the heir, which is proper to a legacy, but so that it would be taken by the donee himself. Then, too, he has a right in the donated thing; for a donation mortis causa is a conditioned donation, which through the death of the testator becomes absolute. Therefore, when the donor has died, the donated thing at once passes absolutely into the ownership of the donee. Cf. 997. Therefore here he can take it as his own. Hence, if he is compelled by the judge to take an oath that he has received nothing from the goods of the deceased, he can assert under oath that he has received nothing from the goods of the deceased, namely, nothing which was not his own. - Gousset 797 and on a. 931.

What is the nature of a donation inter vivos? - A donation inter vivos is an act of spontaneous liberality, by which the donor strips himself irrevocably of the thing donated in favor of the donee, who accepts it. C. I. 1050; C. G. 894; C. L. 1456; C. A. 938, 946. - He strips himself actually and irrevocably; nevertheless nothing prevents a donation from being made under a condition, whether suspensive or resolutory.

C. I. 1066, 1078; C. G. 944, 953. A suspensive condition is tacitly present in donations which are made on account of marriage, C. I. 1068; C. G. 1088. A resolutory condition is tacitly present in reciprocal donations which two persons make to each other, cf. C. I. 1083. But a condition invalidates a donation when it is placed wholly in the power of the donor, C. I. 1066; C. G. 954; or when it imposes on the donee the burden of satisfying any future debts whatsoever of the donor, C. I. 1067; C. G. 945; or when it establishes that, if the donee or his children die first, the donated thing is to revert to someone other than the donor himself, C. I. 1071; C. G. 956; except in the case in which testamentary substitution is permitted, C. L. 1473; and according to the same C. L. 1474, substitution in favor of a third person, contrary to the preceding disposition of the law, is null, but does not produce the nullity of the donation. So also C. H. 641. One can, however, donate under reservation of usufruct for himself, and, when he is gone, also for others, but not by calling others successively one after another. C. I. 1074. Cf. C. G. 949; C. H. 640. - If the donor reserves to himself the faculty of disposing of some object or some sum which is included in the donation itself, if he dies before that disposition, such object or sum passes to the heirs of the donor, not to the donee himself, notwithstanding any contrary clause.

C. I. 1069; C. G. 946. It is otherwise according to C. L. 1464; C. H. 639. In favor of the donee, to whom at once the ownership of the donated thing is irrevocably transferred, namely a right in the thing; whence donation differs essentially from a promise, which gives only a right to the thing. Nor is delivery of the thing required, as is openly clear from C. I. 1062, 1125; C. G. 938, 1138. Cf. Rogron on aa. 711, 937, 1138; L. 732. But delivery is required by C. A. 943, if the donation is verbal; and by C. H. 632, if a verbal donation concerns a movable thing; otherwise in both these Laws it does not obtain effect. Cf. 1011. Who accepts: without acceptance there is as yet no donation, both in positive law and in natural law. For this reason it can be revoked, even if it has been confirmed by oath, because the oath follows the nature of the act. C. I. 1057; C. G. 952; C. H. 629; Lugo d. 23. n. 42; Inst. 1. 2. t. 7. § 2; L. 725-727.

Whether an absent person sufficiently accepts a donation when he receives the message or the donor's letters? "A donation made to an absent person, if it is made through a messenger, can be revoked until it is accepted before the messenger; for it is not sufficient if it is accepted before others. But if the donation is offered by letters, Viva says it is sufficient that the letters reach the donee. But Lessius and the Salmanticenses say that more is required, namely, that letters or a messenger of acceptance be sent back, so that the donation may be valid." L. 725, 728. Certainly, in a gratuitous contract, because it produces an obligation in one person only, the union of wills seems sufficient in that one person alone who acquires the right. Cf. here n. 340. This as regards natural law. Cf. n. 940. As regards positive law, cf. 1011.

What if the donor, after sending a messenger, has revoked the donation? If the donor revokes the donation before it is accepted, and the revocation becomes known to the messenger whom he sent, the messenger can no longer effect anything; since every power of offering or delivering has been taken from him. - But if the revocation does not become known to the messenger before execution, then a distinction must be made: either he acts only in the manner of a messenger reporting another's donation, or delivering the thing, or he has a mandate to make the donation. If the former, the subsequent donation is invalidated by the revocation that has been made, because consent on the part of the donor is entirely lacking. If the latter, his acts are valid, and the donation can be validly accepted. For the mandator is bound to ratify what by force of the mandate has in good faith been done in his name. This as regards natural law. As regards positive law, cf. 986, 1011.

"Whether after the death of the donor a donation can be validly accepted? - Lessius distinguishes. If the donation has already been made, and the donor before death sends a messenger or letter, then he judges that it can be accepted. The reason is that the donation remains virtually in the letters or messenger sent. And Sanchez, Lugo, and Viva probably hold the same. But Lopez ... and others more probably deny this ... and the Salmanticenses judge it probable, because after the death of the donor his will cannot be united with the consent of the donee, as is required for acceptance.... But if, say Lugo, Lessius, and Sanchez, the donation has not yet been made, but has been ordered to be made by a messenger, even through a gift sent by him, then after the death of the donor the donation can no longer be accepted, from L. Inter causas ff. Mandati, etc., where it is expressly declared that a mandate expires after the death of the mandator. Notwithstanding this, however, Sanchez says that the donation can be accepted, because here the mandate, since it is a certain favor granted, does not expire by the death of the mandator.

And Lessius and Viva, etc., deservedly think this probable.... Nevertheless it must be noted with Lugo, Molina, and Sanchez, from the same L. Inter causas, that if the donation has been made by a messenger, while the messenger and the donee are unaware of the death of the mandator, then the donation will be valid." L. 730; Lugo Resp. Mor. 1. 4. d. 6. n. 6; Ithur. Cas. 8.

But there is a grave difficulty in this, that the donee should validly accept the donation after the donor's death; for then the donor by death has already ceased to be owner of the donated thing; and it can no longer be a donation inter vivos, but a legacy, which is quite different. Cf. 986. - This as regards natural law. As regards positive law, cf. 1011. - Gousset 799; C. H. 623, 629; C. L. 1465.

When the donee has died before acceptance, can his heir accept the donation? Sanchez, etc., affirm it, because the heir represents the person of the deceased. Lessius, the Salmanticenses, etc., however, more probably deny it, because the heir succeeds to the real rights of the deceased, but not to personal rights, such as the right of accepting a donation; because liberality adheres to the person. Lessius nevertheless concedes that if the heir is the son of the donee, he could accept by equity, since such is then presumed to be the mind of the donor. L. 731. Cf. 986. This as regards natural law. As regards positive law, cf. 1011. - C. H. 630.

What, by natural and positive law, concerning the capacity of the donor? By natural law all those can donate who can alienate their goods; for donation is a species of alienation. Hence it is required that the donor be sound in mind, and that he not have been declared incapable by law when he completes the donation. From Roman law the following are incapable of donating: 1. Those who are both deaf and mute from birth, unless they know how to write. 2. Those condemned for a capital crime. 3. Wards or minors below puberty, unless it concerns things of slight importance. 4. Spouses between themselves, unless the donation is of slight importance. 5. A father toward a son remaining under his power, except for the sake of marriage, war, studies, and the like. 6. "If anyone has brought ruin upon himself by the nuptials of an incestuous and forbidden marriage, let him be deemed to have neither wife nor children from her. Let him, surviving or about to die, give or leave absolutely nothing to the aforesaid, either through an interposed person or otherwise." L. 6 de Incest. et inutil. nupt. C. Cf. Nov. 89, Cap. 15. 7. "If anyone has legitimate children, he cannot leave or give to natural children and to their mother, or to a concubine, more than one ounce; ... or if there are no children, but only a concubine, we permit half an ounce to be left or given to her." Nov. 89, Cap. 12. An ounce is the twelfth part of an inheritance. - L. 721 ff. According to C. L. 1476; C. H. 624, all who can contract and dispose of their own goods can donate. According to C. I. and G., those cannot donate who, by the same law, cannot make a testament; and regularly minors, C. I. 763, 1052, 1386; C. G. 902-904, 1905; wives, C. I. 134; C. G. 217, 905; and incapable persons interdicted and renounced, C. I. 1052, 1387; C. G. 502, 902. - According to C. I. 1054; C. H. 1334, spouses cannot, during marriage, give to one another. According to C. L. 1178 ff., spouses can make donations between themselves; but these are always revocable. According to C. G. 1094, 1096, 1098, 1099, donation between spouses is admitted, yet it is always revocable; and generally they can give to each other, inter vivos or by testament: 1. If there are no descendants, whatever they could give to an outsider as to ownership, and moreover the usufruct of the part of the inheritance reserved to ascendants. 2. If there are descendants, either a fourth part of the goods as to ownership, and at the same time another fourth as to usufruct, or only the usufruct of half the part. 3. If a spouse has children from a preceding marriage, he cannot give to the new spouse beyond the part which falls to the child who receives less than the others, nor exceed a fourth part of the goods.

According to C. Comm. G. 446, acts transferring ownership of goods, whether movable or immovable, by gratuitous title, of merchants who have made cession of goods, within ten days before the sentence of the tribunal declaring the day of the same cession, are null and without effect. According to C. Comm. I. 707, the same acts are null by full right from the day of cession. Cf. n. 1022; L. 721, 723, 724. From Canon Law, rectors of churches, and beneficiaries, as well as all administrators of ecclesiastical goods, and Regular Prelates, cannot donate immovable goods and precious movable goods dedicated to God without the Apostolic Beneplacitum. Extrav. Ambitiosae de Reb. eccles. non alienand. - From Trent, sess. 25, c. 16 de Reg., donations and renunciations, even sworn ones, which are made by those entering Religion, are invalidated unless they are made with the permission of the Bishop or vicar within the two months immediately before profession, and profession follows afterward. Cf. L. 1. 3. n. 935. From the Norms of the S. C. EE. et RR., June 28, 1901, n. 121: "That Sisters perpetually professed may licitly strip themselves of the radical ownership of all their goods by acts inter vivos, the permission of the Apostolic See is required."

Whether someone validly and licitly accepts a donation from one who is burdened with debt? Lessius, Molina, Navarrus, etc., affirm it, and Lugo and Paludanus apud St. Alphonsus think it probable. The reason is that he can indeed transfer ownership, since he is still the true owner of the thing which is donated; while you, in accepting, are not the per se and efficacious cause of the creditor's loss, but only the accidental and permissive cause. The per se and efficacious cause is only the donor, for he himself is the one who determines to make the donation. Therefore, provided you have not induced him to donate, you do not sin against justice. Nor do you sin against charity; for this does not oblige you to reject a grave advantage of your own, in order to preserve debtors unharmed.

But Paludanus, Bonacina, Lugo, and others apud the same St. Alphonsus more truly and more commonly deny it. The reason is that the donee is the true per se and efficacious cause of the creditor's loss; for donation essentially does not consist in the will of the donor alone, but also in the will of the acceptor, without which no alienation or donation exists. Therefore, just as the donor injures justice by rendering himself unable to pay, about which no one doubts, so also does the donee cooperating in the unjust action of the donor with damage to the creditors. Hence he is bound to restitution of the loss. Nor indeed is it valid to object that alienation in itself is not the cause of the creditors' loss, but the condition of the alienator. For this condition in the case either exists from that alienation, or at least is aggravated by it. L. 722; H. A. tr. 10. n. 128. Each opinion seems not to lack its own probability. - Ithur. Cas. 8. n. 12; L. 812, 694, 695; D'Annib. ed. 4, p. 2, n. 433. Cf. here 1005 at the end.

Note: According to C. I. 1091, 1092; C. G. 920, 921, creditors are not granted the right of demanding reduction of a donation made by one burdened with debts. This right is granted only in an inheritance, if the legitime has been injured, to the heir in whose favor the law has reserved the legitime. According to the same C. I. 1235; C. G. 1167; C. A. 953; C. H. 643, creditors can indeed impugn acts done by debtors in fraud of their rights. Alienation is in fraud if by it the debtor has been made unable to pay, and this did not escape the knowledge of the alienator in gratuitous contracts, and of the alienator and receiver in onerous ones. Yet fraud does not harm third parties who, not participants in the fraud, have acquired rights in an immovable before the petition for revocation of the alienation was transcribed. C. I. 1235. Hence the alienation that has been made is valid, and the thing alienated in fraud passes into the ownership of the acquirer.

According to C. H. 643, 1291, 1297, gratuitous contracts of a debtor, when otherwise, by reason of the donation made, the creditors cannot receive what is owed to them, are presumed to have been made from fraud and are rescindable. According to C. A. 950, one who is bound to support another cannot injure his right by a donation made to a third person. He who has been injured in this way will be able to sue the donee, so that the donee may furnish him what the donor cannot.

What, by natural and positive law, concerning the capacity of the donee? By natural law, on the part of the donee there is required capacity to receive. But all human beings are capable who are not constituted incapable by law of receiving donations. Nor are infants, the insane, or others lacking the use of reason to be regarded as incapable, since they are capable of ownership, and can accept or occupy things through others, e.g., through parents, guardians, etc. Cf. 856. From the Common Law the following cannot accept a donation: 1. All who receive from those who cannot make donations, according to what was said in n. 1005. 2. Those receiving from persons who are burdened with debt, in fraud of creditors; and these are bound to compensate the loss which thence befalls the creditors. 3. Those receiving in defraudation of the legitime which is owed to necessary heirs. 4. Spouses. Generally the reciprocal donations of spouses are invalid. Exceptions: Unless the donation has been confirmed by oath; if the death of the donor intervenes, who dies before the donee, provided the thing was delivered during life; if the donation is remunerative, or is made mortis causa; if a wife gives to her husband so that he may obtain some dignity. L. 722, 723, 740. 5. "We allow chief physicians to receive what the healthy offer for their services, not what those in danger promise for their health." L. 9 de Professoribus et medic. 6. No one can give to a second spouse, whether by donation inter vivos or by an act mortis causa, more than to a son or daughter of a preceding marriage. L. 6 de Secund. nupt. C. 7. "He who perhaps has contracted nuptials contrary to the precepts of the laws, or contrary to the mandates and constitutions of Princes, shall obtain nothing from that same marriage, whether it was given before the nuptials or afterward in any manner whatever." L. 4 de Secund. nupt. C. From more recent Law, donation can be made to all, even to unknown persons, dishonorable persons, and those yet to be born, provided they have been conceived, and afterward are born living and viable, C. I. 1053, 724; C. G. 725, 906; C. H. 627; C. L. 1479; and, according to C. I. 1053, 1059, provided that the one from whom the person hoped to be born is already born, donation can be made to him. He is judged viable who is born after the one hundred eightieth day from conception. C. I. 160, 162; C. G. 312, 314. In doubt, he who was brought forth alive is presumed to have been born viable. C. I. 714; C. A. 23. - But generally those are excepted to whom something cannot be left by testament, C. I. 1053; C. G. 902. Moreover, specifically the spouse is excepted according to C. I. 1054; C. H. 50, 1334. Also excepted according to C. H. 1335 is the child of a spouse from another marriage, and the person of whom someone is the presumed heir at the time of the donation. Therefore to illegitimate children donation cannot be made beyond what can be left to them by testament. But just as a wife cannot give without the consent of her husband, or by the authority of justice, so neither can she accept a donation. C. G. 217, 906; C. H. 61.

According to C. L. 1478, 1489, pure and simple donations made to persons who cannot contract without due authorization produce effect independently of acceptance, insofar as they are useful to the donees. Donations made by a married man to his concubine are null.

Note: According to C. I. 1055; C. H. 628, any donation in favor of an incapable person is null; according to C. G. 911, it will be null. According to C. L. 1481, a donation made to an incapable person produces no effect. Cf. C. H. 1334, 1335.

What is the quantity of goods which can be given? Goods which are in commerce can be donated, and regularly all those which someone has at present, but not future goods; the legitimate portion of the inheritance and what is necessary for his own subsistence always being preserved. Nevertheless one can donate that which he has in determinate hope, e.g., fruits to be born from a certain field this year; fish which he will bring back from fishing, etc.; with regular exception of the hope of a future inheritance, concerning which every pact is prohibited. Cf. 995; C. I. 1064, 1091; C. G. 913 ff., 943, 947; C. H. 634-636; C. A. 944, 951; C. B. 2274 ff.; C. L. 1453, 1460; C. He. 470.

What are the special prescriptions of positive law concerning donation? On the form of donations. Manual donation, from hand to hand, and therefore of movable things, can be made without writing, even according to the more recent laws, which touch only non-manual donations and donations of immovable things. Moreover, unless these are made by public instrument, acts of donation are null according to C. I. 1056, and are subject to the penalty of nullity according to C. G. 931. Exceptions, however, must be made: 1. Donations which are, as it were, conditions of another contract, e.g., I give, I sell you a farm, from which you will give Titius one hundred gold pieces annually; for these donations are something accessory. C. I. 1128; C. G. 1121. 2. Donations by which someone renounces some right of his; for they are donations in a broad sense. 3. Remunerative and onerous donations; for these are not donations properly so called. According to C. A. 943, a donation made only verbally and without effective delivery confers no right of action on the donee. This right must be founded on a written document. - According to C. H. 632, 633, a donation of a movable thing, made verbally, requires delivery; otherwise it will lack effect, unless the donation is made in writing, and the acceptance is established in writing. But a donation of an immovable thing, in order to be valid, must be made by public writing, and acceptance must be made in the same or another writing, which will have no effect unless it is made during the life of the donor. Acceptance, if it is recorded in a separate writing, must be notified to the donor in authentic form. - According to C. L. 1488, 1459, a donation of movables can be verbal, but with delivery of the thing; however, it must be written if it is without delivery. A donation of immovables, if it does not exceed 50,000 reis, can be made by a private writing signed by the donor and by two witnesses. If it exceeds the aforesaid quantity, it must be made by public writing. But in order that they have effect with respect to third parties, they must be registered. - Cf. here n. 1000; Gousset 799 and on a. 948. On the acceptance of a donation. Only adults who are neither under guardianship nor under curatorship can accept non-manual donations and donations of immovable things. C. I. 1059; C. G. 935. Hence, for non-emancipated minors, he accepts who exercises paternal power or guardianship. Emancipated persons and incapacitated persons who have been renounced need the intervention of a curator. C. I. 231, 1059; C. G. 935. But wives according to C. I. 134 can accept without the consent of the husband; but according to C. G. 217, 934 they need the husband's consent. Nevertheless all these, if they accept by themselves, have a donation which is valid also in the civil forum until the other party protests; since restitution in integrum is granted to him, and this is clearly drawn from C. I. 1061. L. 725. - Acceptance must be expressed in the same or another act; and, if a donation has been made to an absent person, it is not understood to have been made before it has been announced to the donor. C. I. 1057; C. G. 932. Hence before this, the donation is as if it had not intervened, and accordingly the donor can meanwhile revoke the donation by his own right. And if meanwhile the donor dies, the donation vanishes. So also according to C. H. 623, 629, 630, 632, 633; C. L. 1465, 1466. For the donor has ceased to be owner of the donated thing; and if the donee could still accept the donation, the act of donation would already be turned into something wholly different, namely into a testamentary disposition. But once acceptance has been made, the donation is perfected, and transfers every right into the donee, without any need of delivery. C. I. 1062; C. G. 938. So also by Roman law, Inst. 1. 2. t. 7. § 2.

Moral bodies also cannot accept donations unless the faculty has been obtained from the Government. C. I. 1060. This disposition of the Law is in no way valid for the Church. On donation in view of marriage. Donations in view of marriage can be made and received by a minor, with the intervention of those whose consent is needed according to Civil Law for contracting marriage. They can also be made and received by an incapacitated person, with the intervention of a curator. C. I. 1386, 1387; C. H. 1329. Donations made to one or both spouses are not for that reason judged also to have been made to children to be born according to C. I. 1062, but they are indeed made to them according to C. G. 1082, if namely the spouse donee dies before the donor. These donations, made in contemplation of marriage, cannot be impugned because of defect of acceptance, C. I. 1062; C. G. 1087; C. H. 1330; nor can they be revoked because of ingratitude or because children have been born, C. I. 1087; C. H. 1333. Cf. C. G. 960. But they are null if marriage does not follow, C. I. 1068; C. G. 1088; C. H. 1333; C. A. 1247, or if it is pronounced invalid; nevertheless rights acquired by third parties remain, indeed also the rights of children, if at least one of the spouses contracted it in good faith. C. I. 1068. - Inst. 1. 2. t. 7. § 3. Cf. here n. 1022. On the nullity of donations because of omission of legal forms. Donations null in the external forum because of defect of form are not also null in the internal forum. This is clear: 1. Because, generally, a natural obligation independent of civil obligation is admitted according to C. I. 1237 and C. G. 1235. Hence he who has voluntarily satisfied a natural obligation cannot reclaim what has been paid. Therefore there is a certain natural obligation to satisfy a donation which has not been clothed with the formalities prescribed by law. And as regards C. I., this is most clearly confirmed by art. 1311. - 2. Donations under the form of an onerous contract, e.g., of sale, between persons capable of disposing of their own goods and of receiving, are certainly valid if they contain nothing contrary to the laws. And this is proved from actual jurisprudence. Moreover this jurisprudence openly shows that the prescribed formalities of donations do not touch the donation itself, but only the act or instrument of donations; otherwise all donations disguised under another onerous contract would be null. - 3. For the law itself in reality does not speak of the donation, but of the act of donation, or of the instrument in which the donation is contained; namely, that the donation may be valid with respect to third parties, and in the external forum. Only the act is subjected to nullity unless it has been made according to the prescribed form. C. I. 1056; C. G. 931. Cf. C. I. 1310, 1311, 1312, 1316, 1320, etc. An act is certainly understood to be perfected when it has been made according to law, because we must take the words of the law with effect, unless the law itself has openly expressed something else. Hence nothing essential, whether by its nature or by law, ought to be lacking to it. 4. It is commonly handed down that according to the laws no formality is required for manual donations. This is drawn from the fact that the formalities prescribed in C. I. 1070; C. G. 948 are not required for the donation itself, but for the act of donation. Therefore the same holds for non-manual donations and even for donations of immovable things. The same seems to have to be affirmed according to C. A. 943. For defect of forms does not take away the right in the thing, but the right of action. There is a graver difficulty from C. H. 633, in which mention is made not of the act of donation, but of the donation itself. But even here the Code admits a milder interpretation; for it is said that, IN ORDER THAT a donation of an immovable thing BE valid, it must be made by public writing. Therefore it is not invalid by the law itself, by full right, if made otherwise. Hence also according to this Code the defect of forms renders the donation only rescindable by the sentence of the judge. According to C. B. 518, a legitimate form is required for the validity of a donation. Yet the execution itself of the promised thing supplies it. Cf. here n. 936; Gousset on a. 931. On simulated donations. Simulated donations are those which are hidden under an onerous contract, namely when the profit received from that contract is altogether notable, and with the intention of donating someone therefore sells or rents the thing for less. These donations are valid as to form, if the act under which they lie hidden is valid as to its proper form, provided they have not been made to those to whom it is not permitted to donate, or beyond that which it is permitted to donate to them. C. I. 811, 1010, 1011; C. G. 853, 854, 918.

What is the obligation of donation? - Once the donation has been perfected, the donor is bound at once to hand over the thing which he has donated; and if he has destroyed it, alienated it, or made it worse, he sins gravely in a grave matter, and is bound to compensate the donee for every loss. The donee likewise is bound to fulfill the burdens attached to the donation. And if the donee has not obeyed the imposed conditions, the donation is resolved, namely, if it was made under a resolutory condition. C. I. 1065, 1078; C. G. 953; Lugo d. 22. n. 42.

What are the cases in which donations do not obtain their full effect? - There are these two cases: reduction and collation.

What is reduction? Reduction is: the rescission of a donation or legacy in proportion to the excess above the disposable quantity, which rescission must indeed be made by public authority. The reason is that the legitime should not be injured contrary to right. Rescission, and therefore the act, is valid, and one can retain what he has received if reduction is not demanded. But it cannot be requested except by those for whom the law reserves the legitime. Nor indeed can they, during the life of the donor, renounce this right. If the value of the donations exceeds or equals the disposable quota, the testamentary dispositions are without effect. But if the testamentary dispositions exceed the disposable quota or the portion of this quota which would remain after deducting the value of the donations, reduction is made proportionately without any distinction between heirs and legatees. Meanwhile the donee makes the fruits of the donated thing his own during the life of the donor. Manual gifts also are to be reduced, provided they are immoderate, so that excessive inequality among the children would be had thence. Immoderate, lest parents be dealt with as though they were managers of the affairs of the children. Immoderate, with attention to the conditions of the amount of the patrimony, the person giving, the cause of giving, etc. Therefore provision is made for the legitime of children by computing into the inheritance left at the time of death the things which the deceased, while living, had previously donated to outsiders: namely, for the determination at that time of the legitimate and disposable part; for the legitime is owed only from that time of death. Hence one mass, as it were, is formed from those things which the testator left when dying and from those things which he donated while living, so that the legitime may be taken from this mass. But also the debt which perhaps the testator left must be deducted. It is deducted, however, not from the donated things, but from the things left. For the things donated, since they had already been alienated by the testator, are not obligated to creditors. According to C. He. 527, alienations made by the disposer with the manifest intention of eluding the dispositions concerning the legitime are subject to reduction. - Cf. here n. 673; C. I. 821-824, 1091 ff.; C. G. 920 ff.; C. H. 654 ff., 887, 818 ff., 1036, 1039, 1040, 1044; C. L. 1482, 1493 ff.; C. He. 474 ff., 486, 522 ff.; C. A. 951, 952; L. 740.

What is collation? Collation is the act by which one of the heirs brings back into the sum of the goods which the testator left to be divided among the heirs those goods which he received from the donor, so that they may be divided equally among all; unless he rather wishes to renounce the inheritance, for this is an obligation of heirs, and then he can retain those things up to the concurrence of the disposable part. The reason is that, lest equality among the children be injured, the law presumes that the testator did not so much donate as, as it were, give a part of the future inheritance. As it were; for it is a true donation: since it is in the power of the donee to renounce the inheritance and to retain the donated things up to the disposable amount, if more has been donated to him.

C. I. 1001, 1014 imposes collation upon sons and descendants only toward other descendants who are coheirs; not likewise toward legatees, or creditors of the inheritance, and other heirs. But coheirs can request collation for determining the computation of the legitime, not for completing the disposable portion. C. B. 2050 ff. likewise imposes collation only upon descendants. C. H. 1035; C. A. 787 impose it upon the necessary heir. Likewise C. He. 626; C. L. 2098 impose it only upon legitimate heirs. But C. G. prescribes collation indiscriminately for any heir, 843-846, 857. Collation in two ways can be made: 1. In kind, i.e., by bringing back the donated thing itself. 2. By receiving less. The former mode is made ordinarily in immovables, the latter in movables. C. I. 1015 ff.; C. G. 858 ff.; C. H. 1045 ff.; C. He. 628; L. 954; C. L. 2100 ff.

What are the exceptions of collation? - Various donations are exempted from collation: 1. Those which the testator gave while expressly exempting the heir from collation, or under the title of a preferential right (antiparte), within the limits of the part of which he was able to dispose. C. I. 1001; C. G. 843; C. H. 1036, 1038; C. L. 2099. According to C. I. 1004, 1006, 1012, donations of ascendants made to a descendant of the heir are presumed to have been made with dispensation from collation; likewise donations made in favor of him or her who is the spouse of a descendant. Nor is an immovable subject to collation if it has perished by chance and without fault of the donee. Cf. C. H. 1038-1040, 1045; C. G. 847-860, 855. - 2. If expenses were made by the donor in someone's favor, e.g., for food, clothing, customary gifts, etc. Likewise expenses of education, nuptials, learning a craft, and similar things. For these are owed by equal right to all children from natural law itself, from piety, from paternal custom. C. I. 1009; C. G. 852; C. H. 1041, 1042, 1044; C. L. 2105; C. He. 629, 631, 632. 3. The fruits of things subject to being brought back, which the donee received before the death of the testator. For these were never in the patrimony of the father. C. I. 1013; C. G. 851; C. H. 1049; C. A. 789 ff.; C. B. 2050 ff.; Gousset on a. 852; L. 958, 959.

Whether a son must bring back expenses made by a father of slender fortune for him to be promoted to the priesthood? Resp. Negatively, generally speaking, because those expenses redound to the common good of the family, namely to its honor, advantage, etc., and these are judged to have been given gratuitously by the parents. But the patrimony given by the father to the son for receiving sacred orders must be brought back into the division of the inheritance, because it can be equated with the dowry of a daughter, which necessarily must be brought back. Otherwise equality among the children would be injured, which collation intends to prevent. This is also clear from C. I. 1007; C. G. 851; C. H. 1035, 1043, 1046; C. A. 788; C. He. 626; C. L. 2104; L. 488, 455, 456.

Whether expenses made by a father for the sake of a son for a doctorate, benefice, studies, books, etc., must be conferred? - Resp. Negatively, for these redound to the common good of the whole family, honor, advantage, etc. Exception: if expenses are made which are altogether extraordinary. C. B. 2050; L. 724, 950, 955. According to C. H. 1043 they must be conferred. They must likewise be conferred according to C. L. 2104. Cf. C. A. 792.

Whether money used to redeem a son from military service must be conferred? Resp. Affirmatively, if he is redeemed for his own utility, because equality seems to require this; otherwise, if the son is redeemed for the utility of the father, e.g., sick, old, or poor, or for sustaining the family, because the family which receives the advantage must also bear the burden. Rogron on a. 851 Cod. civ.; Gousset 729 and on a. 852; L. 955. - According to C. H. 1043 and C. L. 2104 it must be conferred.

Whether a son is bound to bring back those things which he badly spent from the paternal goods, e.g., in games, drinking, etc.; and those things which the father paid to extinguish his debts? Resp. To the 1st, negatively, provided the son did not badly consume more than the father was content that he should spend on his own support and honest recreations; otherwise, if the expenses had exceeded. Resp. to the 2nd: Those things which were given for paying debts must be conferred, unless they were contracted in lesser age and he was not made richer thereby. For these are understood to have been given by the father with exemption from collation, since the son would not be bound to pay those debts, and restitution in integrum would be granted to him by the laws. - But if the son is a debtor to the father, he is indeed compelled to impute to his own part what he owed him, as debtor, just as any other debtor would have had to restore to the heirs, not as heir and by right of collation; for only donated things come into collation. C. I. 991, 101; C. G. 829, 843; L. 543, 544, 957; C. H. 1043; C. G. 851; C. I. 1007; C. A. 788.

Whether the law of collation obliges in conscience? "The law of collation regards both the external and internal forum. Nevertheless, when it is certain, whether from the verbal declaration of the donor or from various circumstances of fact, that the donation was made with exemption from collation, although this exemption, because of defect of an authentic document, cannot be proved in the external forum, the donee is not obliged to collation. But, generally speaking, the donee cannot retain the excess over the legitimate part, whatever the will of the donor may be." Gousset on a. 852. For the will of the donor was not to donate absolutely, if he did not at least implicitly dispense from collation, by imposing, e.g., on the donee the obligation of never manifesting to anyone the gifts received.

What are the exceptions to the irrevocability of donation inter vivos? - A donation 1. is resolved, but not by full right, if the attached conditions are not fulfilled. Cf. C. I. 1078, 1079, 1080; C. G. 953, 954, 956; C. H. 647, 651, 1333; C. B. 525 ff. 2. It can be revoked if the donee shows himself ungrateful toward the donor in the cases and time determined by law. Inst. 1. 2. t. 7. § 2; C. B. 530; C. I. 1081, 1082; C. G. 955, 956, 957; C. H. 648-650, 653; C. L. 1482, 1488 ff.; C. A. 948, 949; unless, however, they are donations on account of marriage, and also according to C. I. unless they are purely remunerative donations. C. I. 1087; C. G. 959. 3. But it is revoked by full right according to C. G. and C. H., but not by the law itself according to C. I., because of offspring supervening, even if that offspring had already been conceived at the time of the donation, even also if it was born posthumously, or if the donor has legitimated a natural son born after the donation; excepting according to C. G. mutual donations of spouses, or of ascendants in favor of spouses, made on account of marriage; excepting according to C. I. remunerative donations and those made on account of marriage. According to C. H. 1333, donations on account of marriage are not revoked unless the marriage does not follow. According to C. L. 1482, 1483, 1486, the donor can revoke the donation because of the supervening of children, unless at the time of the donation the donor already had a legitimate descendant, or unless it was made on account of marriage. Nor can he renounce this right. Certainly just and pious is the presumption of law, that a donor lacking offspring made the donation with this virtual or tacit condition: Unless I acquire children; for everyone is judged tacitly to wish to prefer his own to outsiders. Hence every contrary agreement is also regarded as null. But since in this case the donation is revoked by the law itself, it does not revive through the death of the offspring. C. I. 1083-1087, 1090; C. G. 960, 961-966; C. H. 644-646. - According to C. A. 954, by the reception of children, donations do not vanish. 4. All donations inter vivos made by either spouse to the other can always be revoked. Nor indeed does the wife need the consent of the husband or the authority of the judge. C. G. 1096. According to C. B. 519, 528, the donor can fail to execute a donation if he is in need, or if he cannot fulfill the obligation of supporting others, and he can revoke a completed donation. According to C. A. 947, 954, if the donor suffers need, he can demand the fruits of the donated thing. The same right belongs to the donor's children born after the donation in a case of need. - According to C. B. 534, a donation which has as its cause a moral duty or a motive of propriety is not subject to restitution or revocation.

L. 738, 739.

Whether a donation made to the Church or to a pious cause can be revoked because of ingratitude, or because of the arrival of offspring? Resp. To the 1st: A donation made to the Church cannot be revoked because of the ingratitude of the Prelate or clerics; because that donation is made principally for the good of the donor's soul, and principally to God, who cannot be ungrateful. Lugo d. 23. n. 175; L. 738. Resp. To the 2nd: "All commonly teach that it can be revoked only as to that in which it is undutiful toward the children, or as to their legitimate portions, not as to the whole. The reason is that as to the portion owed to the children, the donor is not presumed to have preferred the Church, but rather to have wished in the first place to satisfy his own duty of piety. But as to the rest, the Church is judged to be loved more, or equally, with the children; wherefore, just as a donation made to one son is not revoked when other sons are born, except as to their legitimate portions, so it must be said of a donation made to the Church, or to a pious cause." Lugo d. 23. n. 194. "Wherefore the revocation would subsist, and the donation would not revive, even if the children died, because an action once extinguished always remains extinguished." Ithur. Cas. 8. n. 12; L. 739.

And 1. on donations in general; 2. on the various species of donations.

801. • Donation in general is the gratuitous cession of some thing in favor of another. It can be made chiefly in two ways, namely among the living and by testament, as we shall say in the following article. But now it occurs that we must speak: 1. concerning the conditions of donation; 2. concerning certain cases in which donations, although valid, do not obtain their full effect.

802. Principles. - I. On the part of the donor it is required: 1. that he not be incapable de facto, that is, that he be sound in mind when either the donation among the living is perfected or the testament is drawn up, and that he act with sufficient liberty; 2. that he not be incapable by law when he perfects the donation or makes the testament.

¹ On the title above. According to the mind of the Author, that donation in general is to be understood here which a little before he defines as the gratuitous cession of some thing in favor of another. And since the same Author, following the Gallic Code (art. 893), establishes a twofold mode of this gratuitous cession, namely by donation among the living and by testament, therefore in this paragraph he wished to embrace the things which pertain to each of these genera of cession. But indeed this disposition of the matter introduces no small confusion, as is easily clear to the reader, since the things which regard one or the other mode of cession are handed down as pertaining to the generic nature of gratuitous cession. Since this confusion of things could not have escaped the perspicacity of the Author, we shall say that he clearly trusted the judgment of the readers and therefore judged that no account should be taken of the danger threatening from this confusion.

II. On the part of the donee there is required ability to receive. But all human beings are able who are not constituted by law as incapable of receiving donations. Nor are infants, the insane, or others lacking the use of reason to be held incapable, since they are capable of dominion and can accept or occupy things through others, e.g. through parents, tutors, etc., according to the things said in the Treatise on Justice, n. 542.

803. Questions. - It is asked, 1. Who by law are incapable of donating?

I reply, 1. From Roman Law the following are incapable: 1. those deaf and at the same time mute from birth, unless they know how to write; 2. those condemned for a capital crime; 3. pupilli or impuberes, unless it is a question of things of small moment; 4. spouses between themselves, unless the donation is of modest moment; 5. a father toward a son remaining under his power, except for the cause of marriage, war, studies, and the like ².

² The things contained in this response are to be taken concerning donation among the living, but not concerning donation in general, which includes also cessions by testament. For spouses and a father in reality are not incapable of those donations by testament. But also that which is said concerning impuberes is not true from every angle. For it holds, speaking absolutely, concerning testaments; but a donation properly so called is not prohibited to impuberes where the authority of the tutor accedes and whatever else is required for the alienation of pupillary goods. Say the same also concerning those things which are added in the second response according to Gallic law. For apart from the fact that minors cannot dispose of anything even by testament unless they have arrived at the sixteenth year, the remaining things pertain only to donations among the living.

I reply, 2. From Gallic Law the incapable are: 1. minors, unless by reason of a conjugal contract; 2. interdicted persons, who need the assistance of a counselor granted by the judges; 3. wives without the consent of the husband or authority of the judge; 4. merchants who are unequal to fulfilling obligations in cases determined by law. - Art. 446, Cod. comm.

804. • It is asked, 2. Who are unable to accept a donation?

I reply, 1. By common law the following would accept invalidly: 1. all those accepting from those who are unable to make donations, according to the things said above, n. 803; 2. those accepting from those who are burdened with debt; and indeed these, according to the truer sentence, are held to compensation for the damage thence coming to the creditor. - St. Lig., n. 722; 3. those accepting in defrauding of the legitimate portion which is owed to necessary heirs. - St. Lig., nn. 722, 740, etc.

I reply, 2. By Gallic Law the incapable are: 1. those who had not been conceived at the time of the donation, or, as regards a testament, at the time of the testator's death; 2. a tutor with respect to his pupillus, before he has given account of the administration of the goods, unless he is one of the ascendants; 3. adulterine and incestuous children, except for the cause of aliments; 4. natural children, even legally recognized, beyond that which is conceded to them by right of succession; 5. physicians, surgeons, pharmacists, who cared for the deceased in his last illness, and also Confessors, if the donation was made during the illness, certain cases excepted; 6. any Communities whatever ³, without the approval of the Prince or of the Prefect, if the donation exceeds 300 fr. (C.C. 25, 762, 338, 906 and following).

³ A law of this kind is owed chiefly to hatred against the Church of Christ and against those professing the evangelical counsels, namely the religious Orders. For it was not enough for the most unjust wickedness of those men (which found no place even among pagans) to have sacrilegiously plundered all the goods of the communities sacred to the worship of God, unless besides they provided by law that goods by which those communities might be restored and sustained could not freely be left to them. And while they were passing these laws, applying a notable hypocrisy to iniquity, they boasted that they wished to protect the rights of all and the common liberty of all! These laws, of course, oblige consciences no differently than a law which perhaps would forbid anyone to bestow alms on a poor man without the approval of the Prince or Prefect.

805. • It is asked, 3. What quantity of goods can be given by those who are able to donate?

I reply. If they have no necessary heirs, they are constrained by no limits. But if they are by no means lacking necessary heirs, it will be permitted to them, by way of donation among the living, to pay out to others that quantity of goods which one who makes a testament can bestow through legacies. Therefore compare the things to be said concerning testaments, n. 825. See Cases, n. 802 and following.

806. • If someone becomes heir of him from whom he previously accepted something, and the deceased established nothing expressly by which equality among the heirs would be derogated from, every disposition, whether direct or indirect, by which that equality is injured, is supposed in his intention to have been only a temporary concession of the fruition of the thing given. Therefore, when the donor has died, the thing itself must be brought back or reduced into the succession in proportion to the right injured, unless nevertheless the donee, content with it, should prefer to renounce the inheritance. This is what the law calls collation. - Art. 843 and following ¹.

¹ Since the Author is accustomed to bring forward what things are to be held according to Common or Roman Law, someone could suspect that those things also which are contained in this little part are common to each law, Roman and Gallic. But the matter is not so, since those things pertain to Gallic law alone. But in Roman law, if certain outsiders have been mixed with descendants instituted, or called to the inheritance together with descendants, neither do the children confer to these outsiders, nor the outsiders to the children; but rather, before any collation, only that which was truly left by the deceased is to be divided among the children and the instituted outsiders according to the will of the testator; then afterwards, the outsiders now having been dismissed, the descendants confer among themselves and divide the things which are to be conferred, as if no outsider had been joined to them from the beginning. See Voet (In Pandect., book 37, title 6, n. 6).

Collation therefore is the act by which one of the heirs brings back to the sum of goods which the testator left to be divided among the heirs those goods which he accepted from the donor, so that they may be divided equally among all.

Reduction, however, as they say, of a donation or legacy is its rescission in proportion to the excess above the disposable quantity; which rescission indeed must be made by public authority.

807. Principles. - I. Every heir coming into the succession must bring back whatever he accepted from the deceased through a gratuitous disposition among the living, unless there is an express dispensation on the part of the donor. Thus from Roman and Gallic Law. - St. Lig., n. 954.

II. Collation can be made in two ways: 1. in kind, that is, by bringing back the donated thing itself; 2. by receiving less. - The former mode is made ordinarily in immovables, but the latter in movables. Cod. civ. 858 and following.

III. Various donations are exempted from collation, namely: 1. if the testator gave any things by expressly exempting the heir from collation, or by title of a preferential right within the limits of the part concerning which he could dispose; 2. if expenses were made by the donor in favor of someone, e.g. for aliments, clothing, customary gifts, etc. Likewise expenses of nourishment, education, weddings, learning an art, and similar things. - St. Lig., n. 955. - Cod. civ. Gall. 843, 852.

Nor are manual donations necessarily to be brought back, unless they are of the greatest moment. - Gousset, n. 794, etc.

808. Questions. - It is asked, 1. Whether the fruits of bring-back-able things which the donee perceived before the death of the testator must be brought back?

I reply negatively, because they are not subjected to collation except from the day on which the succession was opened; otherwise the donation would have been altogether useless. - Cod. civ. 856.

It is asked, 2. Whether a son is held to bring back those things which he spent badly from paternal goods, e.g. in games, drinking, etc.? I reply negatively, unless the expenses were excessive; by no means, however, if he did not spend more than the father would have been content that he spend on honorable recreations. - St. Lig., n. 957.

It is asked, 3. Whether expenses made by the father for the sake of the son for a doctorate, benefice, studies, books, etc., etc., must be conferred?

I reply negatively, because these tend to the common good of the family, namely to its honor, advantage, etc. From another side, they are judged gratuitously given by the parents to the son. - St. Lig., n. 955. Make exception, however, if extraordinary expenses are made ².

² They can deservedly be judged extraordinary even if there was merely bestowed upon the son that by which he was scantily supported in a distant city by reason of studies, provided that this, although modest and scanty in itself, nevertheless in comparison with the slender resources of the family must be held as something great, e.g. if the question concerns the son of a woodworker.

809. • It is asked, 4. Whether money employed to redeem a son from military service must be conferred?

I reply affirmatively, if he is redeemed for his own utility, because equality seems to require it; otherwise, if the son is redeemed for the utility of the father, e.g. infirm, old, or poor, or for sustaining the family, because the family which receives the advantage must also bear the burden. - Rogron, in art. 851, Cod. civ. - Gousset, Cod. civ. commente, art. Cod. civ. 852.

Namely: 1. on donation among the living; 2. by testament; 3. by reason of death; 4. through fideicommissum.

This donation is an act or contract by which the donor actually and in an irrevocable manner deprives himself of some thing in favor of the accepting donee.

810. • Donation among the living, even merely verbal, clothed with the due conditions, of itself or by natural law, immediately transfers dominion irrevocably, as is clear from the things said in n. 802. But by positive law donations must be drawn up according to the forms prescribed by law, at least so that they may obtain effect in the external forum.

But as regards Gallic Law these things chiefly are to be noted: 1. the acts by which donations are made are to be drawn up by notaries; 2. acceptance of the donation must be made either in the very act of donation, or must be announced to the donor by another authentic means; otherwise the donation would not be judged perfected; 3. future goods are donated invalidly. Nevertheless this does not prevent someone from being able to donate that which he has in a determinate hope, e.g. fruits to arise from a certain field this year, fish which he will bring back from fishing. - Exception is made for the hope of a future inheritance, concerning which every pact is prohibited (943). 4. From the principles of law it is concluded that manual donations are valid without writing.

811. Questions. - It is asked, 1. What is required that a donation in favor of an absent person be valid?

I reply. A donation, just as also a promise, made to an absent person by letters written expressly to him, or by a messenger or procurator, must be accepted before the messenger or him who represents the donor, or by other letters sent to the donor on the part of the donee; for otherwise the mutual consent of the donor and donee concerning the same object of pleasure cannot be established. - St. Lig., Hom. apost., n. 130 ¹.

¹ The question is usually moved here whether a promise or donation begins to be valid as soon as the promisee or donee has accepted, or only then when the acceptance has been signified to the promisor or donor, who therefore can revoke it before he knows anything of the acceptance.

Concerning this matter St. Alphonsus (book 5, n. 728) writes: "If a donation is offered by letters, Vira says it suffices that the letters arrive at the donee. But Lessius (book 2, ch. 18, n. 45), and the Salmanticenses (ch. 4, n. 73) say that more is required, that letters or a messenger of acceptance be sent back, so that the donation may be valid."

And indeed the Salmanticenses, from whom St. Alphonsus took these things, seem to have attributed that opinion to Lessius, because in him these things are read (l.c.): "If by letters you have offered your promise to an absent person, in order that his acceptance may be valid, so that you cannot go back, it is required that it become known to you in turn by letters or by a messenger sent to you." But 1. it had to be observed that Lessius immediately added (ibid.) that this chiefly has place in respective promises, which require a counter-promise; for all these have this tacit condition: If he to whom you promise in turn promises back and obliges himself: which is done by an external sign directed to the promisor. Although Lessius had also premised the same thing concerning onerous contracts (ibid.): "It is not of the essence of a contract that the consent of the absent person with whom you contract has become known to you. For if your mind is that the contract be valid immediately once the consent of the other has been placed, even before it becomes known to you, it will be valid immediately. Nevertheless this is not presumed unless it is clearly expressed."

2. But besides, now it is not a question of an onerous contract, but of a gratuitous one. But concerning this case Lessius very clearly (ibid.) hands down the opposite of what is attributed to him: "In gratuitous promises or donations," he says, "I do not think it necessary that the letters of acceptance or the messenger have arrived at the donor, because it is not of such great interest to him who gives gratuitously to know that his donation is accepted as it is to him who offers something under a burden and expects a counter-promise to know that the other promises back; of which the sign is that the donor is not much solicitous about knowing it. But it is otherwise in him who enters an onerous contract." Lessius also adds another reason thus (ibid.): "Finally, he who gives gratuitously does not seem to wish to restrict his benefice to this, that it have no force unless he has received letters concerning the acceptance; but rather he desires that it be efficacious as soon as it has been accepted in the due manner." See the same things in Lugo, disp. 22, nn. 33-34, as regards onerous contracts, and nn. 29-30 as regards gratuitous ones.

It is asked, 2. What if the donor, after sending the messenger, revokes the donation?

I reply, 1. 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 all power of offering or handing over has been taken away from him. - Hom. apost., ibid. I reply, 2. But if the revocation does not become known to the messenger before execution, then one must distinguish: either he acts only after the manner of a messenger reporting another's donation, or handing over a thing, or he has a mandate of making the donation. If the former, by the revocation made the subsequent donation is invalidated, because consent on the part of the donor is wholly lacking. If the latter, his acts are valid, and the donation can be validly accepted. For the mandator is bound to hold ratified that which in good faith was done in his name by force of the mandate.

812. • It is asked, 3. Whether a donation is valid if the donor dies before acceptance?

I reply negatively, if he has only given a mandate of making the donation. - St. Lig., n. 730 ². Nevertheless several probably affirm ³, if the donation has already been made, and the donor before death sends a messenger or letter to manifest it. Nevertheless this is not admitted from Gallic Law.

² If nevertheless both the mandatary and the donee are ignorant of the death of the mandator, the donation must be said to be valid. For acts done through a mandatary, as long as either revocation or death of the mandator is unknown, are valid, from sect. 10, Instit. De Mandato, and L. Inter causas 26, ff. Mandati, where it is said: "If nevertheless through ignorance (of the death) it has been fulfilled, an action is said to be competent for the sake of utility." And again in the same place, sect. 1: "If someone has commanded his debtor to pay Titius, and the debtor, after he has died, when he was ignorant of this, paid, he ought to be freed." See St. Alph., n. 730, at the end.

³ Others, namely, prefer as probable, indeed even more probable, the opposite opinion, led finally by this single reason (see St. Alph., book 3, n. 729), that after the death of the donor his will cannot be united with the consent of the donee, as is required for acceptance: as if, namely, that were lacking which in a contract is as it were the essence, namely the consent of two persons in the same object of pleasure. But indeed this reason can seem almost futile. For, as Lugo has it (disp. 23, n. 81), is the will of the testator more joined with the will of the heir or legatee, who often have not even knowledge of the testament except after the death of the testator?

It is asked, 4. When the donee has died before acceptance, can his heir accept the donation?

I reply negatively, more probably, because the heir indeed succeeds to the real rights of the deceased, but not to personal rights, of which sort is the right of accepting a donation; unless perhaps he is the son of the donee ⁴, because then it would be presumed that such is the mind of the donor, as certain ones admit, if not by strict law, at least from a certain equity. Nevertheless some will that the donation can also profit other heirs.

⁴ Lessius, asking (book 2, ch. 12, n. 35) whether an heir can accept a donation, replies: "From the rigor of law he cannot, because it was not directed to them (the heirs). Nevertheless he seems able from a certain equity, because heirs represent the person of the deceased; and it is to be presumed that this is the mind of the donor, that if the deceased cannot enjoy his benefit, it may profit his heirs, unless the contrary is established." Understand this if his heirs are children; otherwise, if they are outsiders.

It is asked, 5. Whether an oath-bound donation, but not accepted, obliges? I reply negatively, because an oath follows the nature of the act; but a donation before acceptance is not firm. Therefore... - St. Lig., n. 727. Nevertheless Laymann affirms, saying that the oath must be observed as long as it can be observed without sin.

813. • It is asked, 6. For what causes can a donation be revoked?

680. I. Notion and elements. Donation in general can be made in three ways, namely among the living, by reason of death, and by testament: in the first case, the transfer of dominion is made actually and irrevocably; in the second actually, but revocably until death; in the third, dominion is transferred in the future, for the time which follows the death of the testator, and at the same time revocably.

² Lugo, disp. XXIII; Salmant., cap. IV, n. 87-118; Billuart, diss. II, art. 2; St. Alphonsus, n. 721-743; Carriere, n. 487-491; n. 450-558; Marres, lib. IV, n. 13-90; Ball. P., n. 631-658; Lehmk., n. 1084-1086; Noldin, n. 538-541.

Here we are treating of donation among the living, which can be defined as a gratuitous contract by which dominion of some thing is transferred to another actually and irrevocably.

Three things therefore are found in donation: (a) the transfer of some thing, or right; (b) gratuitous, and thus it is distinguished from exchange or sale; nevertheless sometimes some burdens are imposed on the donee, and then there is a mixed contract, partly gratuitous and partly onerous; (c) actual and irrevocable, insofar as goods or rights are transferred at once, and indeed in such a way that they cannot be revoked except in cases expressed by law; thus donation is distinguished from promise, by which rights are not transferred actually, and from testament, by which rights are conferred neither actually nor irrevocably.

By natural law, for a valid donation, it is required and it suffices that the thing be given by one who is capable of giving, and accepted by one who is capable of receiving, according to the things said above concerning contracts in general. - But other conditions are required by civil law.

681. II. Prescriptions of civil law. 1. In France¹ donation properly so called is held as a solemn contract, for the validity of which special forms are required, so that it can be certainly established, and its irrevocability be placed in safety.

¹ Cod. civ., art. 931-952, in Supplem., p. 109*; Planiol, III, n. 2501-2676.

(A) Two conditions are necessary for any solemn donation: (a) that it be made before two notaries, or before one notary and two witnesses, and that the protocol (la minute) be preserved with the notary; (b) that acceptance be given explicitly in the same manner, so that the donation does not have force except from the day of acceptance.

(B) Two conditions, moreover, are desired for certain contracts: (a) for movable things, an estimative inventory of all things which are given, in which the individual things and their price are described; (b) for immovable things, which can be subjected to mortgage, the act of donation and acceptance must be transcribed before the conservator of mortgages; nevertheless, the defect of transcription does not render the donation invalid, but only rescindable; but rescission cannot be sought by the donor himself, but by those whose rights were harmed through the donation.

682. 2. From these formalities, however, certain donations are immune: -

(a) Manual donations, which are perfected by delivery alone of the thing; their validity is recognized even in the external forum, provided they are made by a capable person and do not exceed the disposable part (concerning which below). This indeed today is of the greatest importance, since there are many movable things which can thus be transferred from hand to hand.¹

¹ When manual donations exceed 150 francs, they indeed cannot be authentically proved except by a written document; but proof of this kind is not necessary, since the possessor of a movable thing is held as owner, by force of art. 2279: "In the matter of movables, possession is equivalent to title."

(b) Donations under the appearance of simulated purchase, when someone, e.g., sells some thing for the price of one hundred thousand francs, and by the same act makes a condonation of this money, or of part of it; this indeed today is held as valid by magistrates, provided the donor is capable of giving, and the donee capable of receiving.

(c) Accessory donations, that is, those which are joined to an onerous contract in favor of a third party; e.g., Titius sells a house to Caius for 50,000 francs, under the law that Caius give 10,000 francs to Sempronius; this stipulation is held as valid by jurists.

(d) Donations which are made by way of renunciation, as if a creditor remits a debt, or an owner renounces some servitude, or a legatee some legacy, etc.; all these have force, provided they are made in the manner defined by law, e.g., if remission of a debt is made by destroying the note in which proof of the debt is contained.²

² On these, see Planiol, III, n. 2535-2555.

683. 3. Although donation of itself is irrevocable, in three cases it can be revoked: (a) if the donee has been judged guilty of notable ingratitude toward the donor; (b) if a son is afterward born to the donor who, at the time of the donation, lacked offspring; (c) if in an onerous donation, the conditions imposed on the donee have not been fulfilled at all.³

³ Cf. Cod. civ., art. 953-966, in Supplem., p. 112*; Planiol, III, n. 2628-2676.

684. III. To be noted for the internal forum. Donations valid from natural law, but null from defect of legal forms, can be held in the internal forum as valid until they are rescinded by the judge; when rescission has been pronounced, this sentence must be obeyed if the matter concerns profane things (above, n. 618); when the matter concerns pious causes, what is to be done can be inferred from the things which we shall say where we treat of testaments, n. 698.

685. IV. On donation by reason of death. By this name is called a gratuitous contract by which something is actually given to another, yet in such a way that the donation can be revoked until the death of the donor. It is therefore distinguished from donation among the living, which cannot be revoked except in the cases expressed by law; and from testament, by which the right is not actually transferred, but only after death; and therefore it is something midway between donation and testament, - and can be called a conditioned donation, insofar as it is made under the condition that it have force if it is not revoked before the death of the donor.

Today, in France and certain other States, a contract of this kind does not have force, because donation is held as essentially irrevocable, except in the cases excepted by the law itself. But a donation can be made under the condition that it be resolved if the donee should die before the donor.¹

¹ Planiol, III, n. 2522.

707. By natural law, all those are capable of giving and receiving who are suited for contracting, according to the things said above, n. 651. - But by civil law, which is diverse among various nations, the capacity of giving or receiving is restricted, on account of the public good.

1. On Incapacity For Giving From French Law.¹

¹ Cod. civ., art. 903-907, in Supplem., p. 106*; Planiol, III, n. 2888-2908.

708. (A) Minors, even emancipated ones, cannot give except in the cases determined by law; namely (a) after the sixteenth year of age, they can give by testament half the goods which they would be able to give if they were of majority age; (b) when they contract marriage, they can give by the contract of marriage whatever persons of majority age can give. - Moreover small manual donations do not fall under the prohibition of the law.

(B) Wives cannot give among the living without the consent of the husband or the authority of the judge; but by testament they can dispose of their goods: for the testament will not have force except at the time when the authority of the husband will already have ceased.

(C) The insane and the interdicted can in no way give; but those to whom a judicial council has been given cannot alienate goods among the living without the assistance of this council, but they can make a testament.

709. (D) Cessionaries of goods (in French, faillis) cannot give within the ten days which precede the judicial declaration of cessation of payments; and donations made before can be annulled if it is proved that they were fraudulent.

(E) Those condemned to perpetual penalties can in no way give, unless the State dispenses from this incapacity; indeed a testament validly made by them before is annulled by that very fact.

(F) Nuns living in a civilly approved institute cannot give to the community or to one of its members beyond a fourth part of their goods, unless the donee or legatee is an heir in the direct line of the donor; yet this restriction does not touch donations which do not exceed ten thousand francs.¹ Moreover attend to those things which must be said concerning interposed persons below, n. 712.

¹ Law of May 24, 1825, in Riviere, Lois usuelles, p. 221.

2. On Incapacity For Receiving.²

² Cod. civ., art. 908-911, in Supplem., p. 106*; Planiol, III, n. 2209.

710. Some are absolutely incapable, that is, with respect to any person; but others are relatively incapable, namely with respect to such and such a person.

(A) Absolutely incapable are: (a) infants not yet conceived at the time when the testator dies; but he is judged to have been conceived at the opportune time who is born within three hundred days after the death of the testator, provided he is brought forth viable.

(b) Those condemned to perpetual penalties, who can receive nothing except an alimentary pension.

(c) Societies, or associations which are not legally recognized: nevertheless the individual members can receive donations, just like the other citizens, with attention however to those things which we shall say concerning interposition, n. 712.

(d) Legally recognized institutes, such as seminaries, congregations, hospitals, etc., can receive nothing without the approval of the State, namely of the Prefect if the thing given does not exceed 300 francs, and of the Government if it exceeds this sum.³ Yet this restriction is not extended to manual donations.

³ Nevertheless, when the matter concerns church Fabrics, the Prefect can approve donations and legacies which do not exceed 1000 francs. - P. Caulet discusses at length and accurately the civil capacity of ecclesiastical institutes, L'Avocat du Clerge, Paris, 1897, p. 689-748.

(e) Wives cannot accept without the consent of the husband or the authority of the judge; emancipated minors without the assistance of a curator; but minors not yet emancipated can receive nothing of themselves; but their parents or tutors, in their name, can accept donations; the interdicted cannot receive without the consent of the tutor and the council of the family.

711. (B) Relatively incapable are: (a) a tutor in relation to a minor, until the latter has attained majority and the accounts of guardianship have been rendered to him; namely lest the tutor abuse his authority to the detriment of the ward. - Yet if the tutor is one of the ward's ascendants, he can receive something from him.

(b) Physicians, surgeons, pharmacists, and ministers of worship, even non-Catholics, who have furnished the work of their art or ministry to some sick person in his last illness, can receive nothing from him by gratuitous title, through a donation, even testamentary, made during that illness, unless they are direct heirs, - or, if direct heirs are lacking, collateral relatives at least in the fourth degree. The reason is that all these, in circumstances of this kind, can exercise too much dominion over the mind of the sick person.

They are not incapable: a physician who is called only for the sake of counsel (en consultation); a pharmacist who sold medicines without furnishing his work; nor a minister of worship who only furnished extreme unction or sacred communion, or visited the sick person as a friend.

(c) Illegitimate children, legally acknowledged by the parents, receive only a smaller part of the inheritance than legitimate children, as will be said where we treat of successions; if they have not been legally acknowledged, they are held as strangers. - Incestuous and adulterine children, when they are legally demonstrated as such (which rarely happens, because the law does not permit them to be legally acknowledged by the parents), can receive only an alimentary pension.

712. So that the incapable may be more effectively prohibited from giving or receiving, French civil law forbids donations to be made to an incapable person through interposition or substitution, or that an illicit condition be attached to them.

1. Forbidden interposition is present when a donation is made to a capable person, under the law that he hand over the thing to a person who is legally incapable of receiving; for then the donation is made in fraud of the law. - Now generally interposition must be proved by him who impugns the validity of the donation, by showing that a pact, either express or tacit, was entered into between the donor and the donee, by force of which the latter truly obligated himself to hand the thing over to the incapable person, - or that the donor ordered that the thing be given to the incapable person. - But it is not sufficient that he expressed a desire, since such a desire does not induce an obligation.

Nevertheless there are certain persons who are legally presumed to be interposed, namely the father and mother, descendants, and spouse of the incapable person;¹ this presumption indeed is juris et de jure, so that proof to the contrary is not admitted. - From the recent law of July 1, 1901, members of Congregations, or of civil societies which possess the goods of congregations, are held as interposed persons, as can be seen in the Supplem. for France, p. 45; yet in this case proof to the contrary is admitted.

¹ Cod. civ., art. 911, in Supplem., p. 107*; Planiol, III, n. 2988.

713. 2. Substitution in general is a disposition by which the donor designates a twofold person: one who is immediately to receive the gift or legacy, and another who, in default of the former or after the former, will receive the same goods.

It can be twofold: direct or vulgar, and fideicommissary.

(A) The former consists in designating a person who will obtain the gift or legacy if the donee or legatee does not wish or is not able to obtain it; e.g., I give such a house to John, and, in his default, to James. This substitution is nothing other than a conditioned donation, and it is valid, even in French law, from art. 898, in Supplem., p. 105*.

(B) The latter, or fideicommissary substitution, insofar as it is prohibited by the Code (art. 896), is a disposition by which the donor of some thing hands over dominion to another, with the burden of preserving the donated thing until death, and transmitting it after death to a third person. Whence he who receives the thing with the burden of transmitting it is called burdened (le greve) or fiduciary, while he to whom the thing is transferred is called the fideicommissary or the called one (l'appele, le substitue).

714. This kind of substitution, before the French Revolution, was in use among the nobles and the rich, so that the goods of a family might be securely transmitted to descendants, and thus the splendor of these families might be preserved in perpetuity. But the civil Code prohibited it as harmful to the equality of citizens, to the free transfer of goods, and to agriculture; and indeed so strictly that not only the substitution, but the donation itself is annulled; whence the fiduciary can neither retain the donated goods for himself nor hand them over to another, but the natural heirs can vindicate them. This law, as greatly restricting the natural liberty of disposing of one's own goods, more probably does not oblige in conscience except after the sentence of the judge.

Nevertheless, lest spendthrifts dissipate goods legated to them, a twofold substitution is permitted by the civil Code: (a) a father and mother can give to one or several of their children goods of which they have free disposition, with the burden of rendering them to all children born or to be born from them, without any distinction, only in the first degree; (b) those who have no descendants can likewise leave goods of which they can freely dispose to brothers or sisters, with the burden of rendering them to all children born or to be born from them, only in the first degree (art. 1048-1074, in Supplem., p. 120*).

715. 3. On illicit conditions attached to a donation or testament. Conditions of this kind, from art. 900 (Supplem., p. 105*), do not render the donation invalid, but are held as not written, so that the donee is in no way bound to fulfill them. - Nevertheless, from jurisprudence, a donation is held as invalid if the illicit condition truly gave cause to the contract; for then the consent was bound to the condition itself.¹

¹ A fuller exposition of this matter can be seen in Planiol, III, n. 3026-3045.

I. Notions. 1. Definition. Donation is a gratuitous contract by which one person, the donor, from an intention of liberality, concedes to another, the donee, his own thing as to dominion, without any obligation of restoring.

It is a contract less properly so called, if you have defined contract in such a way that it must produce an obligation, and the law admits the translation of dominion by consent alone. For then donation transfers a right, but of itself begets no obligation except that common obligation of reverencing an acquired right. Wherefore in certain Codes, for example in the French (893) and Italian (1050), it is placed outside contracts.

By the concession of a thing already possessed by the donor, donation properly such is distinguished from various acts by which someone makes another richer, but without diminution of his patrimony, as for example through gratuitous renunciations, which are also called indirect donations. Cf. immediately below.

By the words without any obligation of restoring, donation is distinguished from mutuum, by which also one's own thing is handed over into dominion, but with the obligation of restoring it or an equivalent.

2. Divisions. According to its various cause, donation is distinguished as between the living and by reason of death; simple and allective or remunerative.

Donation by reason of death is a contract, revocable until death, by which only after the death of the donor is the thing assigned to the donee. Therefore it differs from a testament only insofar as it is a contract, and therefore must be accepted; but it differs from an irrevocable donation which someone dying has made to another; indeed from a donation between the living under a suspensive condition: if I die, or a resolutory condition: unless I recover health.

An allective donation is made under hope of another's action or performance. Yet it is absolute. Wherefore, when the hope has been frustrated, he can repeat nothing.

A remunerative donation has its impulsive cause in the good deeds of another. Wherefore it is commended by equity and is protected more by the favor of law.

According to external form, donation is distinguished as open and disguised under another onerous contract; direct and indirect; verbal or written and brevi manu.

When laws, as the French law, admit that for the validity of a disguised donation it is sufficient that the form of an onerous contract be clothed, the external appearance must be that of an onerous contract. Thus, he who merely writes on paper: "Let it be valid for one hundred francs" (bon pour cent francs), which he thus wishes to give, will make an informal instrument, since nothing is said about a burden; but, that he may satisfy the condition of form, this must be added: "I acknowledge that one hundred francs are owed by me to Titius." Cf. Colin and Capitant, III, p. 770.

Indirect donation takes place when someone gratuitously makes another richer otherwise than by subtracting a thing from his own patrimony. This happens by renouncing, in favor of another, an inheritance or legacy; by remitting a debt; by stipulating something for a third party; by transferring to another a title of credit inscribed in one's own name.

Donation brevi manu takes place when a movable thing is handed over gratuitously to another to be possessed, without a distinct agreement.

But observe that the delivery which is essential in donations brevi manu can be made formally or virtually, either by confirming the possession which the donee already had, or by pointing out the thing which is given, if it cannot easily be moved from its place, or by handing over the keys of the chest where it is kept; or by bringing it in some other way under the power of the donee (Cf. Aertnijs-Damen, I, 888, note).

According to various amplitude, donation is distinguished as absolute and conditioned; pure and mixed with a mode, or burden which is imposed on the donee.

II. Capacity and Faculty of Giving and Receiving Donations. 1. From the law of nature he validly donates who, master of himself, has or can have what he intends to give: he licitly donates who is moved by an honest cause, and, avoiding also a prodigal dissipation of his own thing, brings no prejudice to another's right.

Therefore a debtor cannot without injury make those donations by which he becomes unable to pay. He who has induced the debtor to make such donations participates in that injustice. But what concerning those who, conscious of the present or future inability of the debtor, have simply accepted those gifts? The matter is disputed. There are some, perhaps most, for example Aertnijs-Damen, I, 884, who forbid this, because they help the debtor in an unjust action. Yet, because the debtor remains master of his own things, because he has obligated his patrimony but not individual things to creditors, they seem merely to use another's sin for a gain honest in itself. They violate no right in the thing. Acceptance, as such, is not unjust. Nor do they have a positive duty of preventing the effect of an action begun, or of the sin of the debtor, which the debtor has already committed alone. Therefore they seem able of themselves to be excused. Nor, of itself, does charity stand in the way, which does not oblige with grave inconvenience. Thus Molina, Iust. d. 328, n. 15; Lessius, Iust. c. 20, n. 168; d'Annibale, II, 123.

Much less is someone prevented from receiving an inofficious donation, i.e. one by which the legitime of the children is injured. For as long as they live, parents are not bound from justice to observe that legitime; nor will they sin against piety itself, if they have a reasonable cause for neglecting it, especially since several laws constrain too much the liberty of parents. More severely, therefore, in our judgment, Aertnijs-Damen condemn for grave sin parents who gravely injure the legitime.

But creditors and children will be able to use the protection of civil law for impeding the effect of donations of this kind.

To guardians and prelates, from the goods which they administer, no bounties are permitted except moderate remunerative ones, and alms according to the faculties and nature of the community. And Constitutions are to be observed by prelates (cf. c. 537).

Nor can the husband alone make donations from common goods which by positive law are prohibited to him.

2. Capable of receiving donations is of himself anyone who is master of himself. And when there is question of pious causes, the capacity of persons is to be estimated from canon law.

III. No peculiar form is prescribed from the law of nature. Nor is delivery necessary. Yet the donation will not be perfected before it has been accepted.

St. Alphonsus, L. 3, n. 726, reports, from the Salmanticenses, that a donation made to pious causes or to the church by any private person can be accepted in the name of that cause by anyone; as if by one managing business for the church, as Aertnijs-Damen has it, I, n. 891. Yet we note that management of affairs has place only when the master himself cannot act by himself. Besides, in order that a donation can be accepted by someone in the name of another, it is necessary that the donor wish to conduct the business with that person. Wherefore it does not seem that someone can accept a donation in the name of the church except when the donor offers the thing to him to be accepted in the name of the Church. Such will be the case, for example, of a religious, or of a pastor, to whom something is offered gratuitously to be possessed with a view to religion or the parish.

Outline of Positive Laws. We are treating only of civil laws, because c. 1529 wills that, in ecclesiastical matter, with the same effects, those things be observed which the civil law in the territory has established concerning contracts, unless the statutes are contrary to divine law or unless something else is provided by canon law. But no special canonical disposition occurs except c. 1513, § 1: "He who by natural and ecclesiastical law can freely dispose of his goods, can leave goods to pious causes, whether by an act between the living or by an act by reason of death."

1. Notion of donation. The juridical notion of donation is circumscribed by the donation which we have called direct, so that, unless something else is expressly provided, peculiar dispositions are not to be transferred to renunciations and other indirect donations. That they might signify that limited notion, certain Codes have introduced the removal of a thing from the patrimony of the donor into the definition itself in this or a similar way: "Donation is judged to be a contract by which someone, with liberal intention, from his own patrimony, transfers goods or utilities to another accepting" (art. 1165 Brazilian Code). Cf. Code of Germany art. 516; Swiss Oblig. 239.

Moreover, when, as more often today, a real right is not transferred by consent alone, the contract of donation is rather a contract by which the donor obliges himself to transfer gratuitously to another something which existed in his patrimony. Thus, for example, in Holland. Cf. Duijnstee, n. 238.

2. Donation by reason of death is not acknowledged by most laws, whether they formally exclude it, as the Italian Code, 1050; French, 893; Dutch, 1703; Mexican, 2601; or assimilate it to a legacy, as the Austrian, 956; German, 2301; Spanish, 620; Portuguese, 1157; Peruvian, 628; or pass it over in silence, as the Brazilian, Swiss. - In the laws of England and the U.S.A. it is admitted.

3. Form of donation. Donation, in not a few laws, is a solemn contract, so that several require a public instrument: thus the Italian Code, 1056; French, 931; Dutch, 1719. But, provided the parties are capable, a donation covered with the cloak of an onerous contract is said to be valid. The Brazilian Code, 1168 compared with 131, requires writing, but it can be private, when movable things are donated or an immovable thing which does not exceed "one conto de reis" (a thousand thousand reis).

The form required and sufficient for donating movable things is also often delivery. Donations brevi manu are admitted indefinitely in France; in Austria, 943; in Holland, 1721; only those of moderate value, in Italy: which limitation is expressly had in the Brazilian Code, 1168. The German Code requires a promise of donation which has been made by public act (before a judge or notary), but in such a way that execution heals the defect (518).

4. Capacity of persons. Of itself, only the donee can accept a donation. Yet except persons who represent minors or those interdicted. Several laws, as we have already seen, permit even a minor to accept donations burdened with no obligation. The donee must at least be conceived; and if he is born not viable, the donation falls. Yet sometimes they permit a donation to be made to children to be born immediately from a living person (C. Ital. 724. 761). Besides absolute incapacities, relative ones are distinguished, for example between spouses, between guardian and ward, until accounts have been rendered. A notary cannot be the donee in the instrument which he himself writes (Cf. Cod. Ital. 771. 772). That incapacity is to be remembered by which, in some laws, for example in the French Code, 909; Dutch, 953; physicians, pharmacists, and ministers of worship (i.e. both the confessor and the one who confers the last sacraments) cannot receive donations or legacies from a person whom they care for, during his last illness, unless they are closely joined or unless the donations are remunerative. In several laws, illegitimate children, when they concur with legitimate ones, can receive nothing beyond what is destined to them by law. And the prohibition is more severe for spurious or adulterine children. - Finally moral persons, generally, cannot accept donations without the assent of public authority. Certain ones, however, for example syndicates, not rarely are treated more benignly. - But observe that, by force of c. 1513, the capacity of giving to pious causes is to be estimated from natural and ecclesiastical law.

5. Objects of donation. Generally, by acts between the living, future goods cannot be given. In the Brazilian Code a universal donation of goods is invalid unless the donor reserves sufficient sustenance for himself (1175).

6. Impossible and illicit conditions in the French Code, 900, are held as not written; while in the Italian Code, 1065, they invalidate the donation. Nor are the same conditions everywhere held as licit or illicit. In a peculiar way attention must be paid to conditions which regard the moral or religious order, as if instruction in a definite religion is required. A condition of this kind is sometimes inefficacious, sometimes valid, sometimes can be corrected by a judge.

7. Revocation. Of themselves donations are irrevocable. Yet causes of revocation are inserted in Codes. Most frequent is peculiar ingratitude; frequent also is the birth of children of a donor who had no offspring (This cause is not admitted, for example, in the Canadian Code Q.). In the Code of Germany, 528, supervening need of family property is also admitted. From revocations of this kind remunerative donations are customarily excepted. A clause is permitted by which, if the donee, either he alone or he with his children, dies before the donor, the gifts return to the donor (Italian Code, 1071).

8. Collation. In several laws donations made are judged as anticipated legacies, so that the capital donated must be counted in the hereditary mass. Cf. what is to be said where inheritance is treated.

Effect of Those Laws in Conscience. Those laws, insofar as they are just, oblige conscience, yet in such a way that until a judge has intervened, someone can give and receive according to the norms of natural law. Nor is he bound to disclose the things which he has received. Yet, when legitimately questioned, he is of himself bound to issue a sincere oath.

But what if a donation to pious causes is of a civilly unsuitable form?.

That there may be no occasion of confusion, we recall that here we are speaking not of testaments or legacies, concerning which one will have to speak differently, but only of donations which are made by contract. Therefore:

1. Because c. 1513 explicitly permits that those who have natural and ecclesiastical capacity leave their goods either by an act between the living or by acts by reason of death, nullity sought from the fact that civil law does not admit donations by reason of death does not seem able to be urged in conscience.

2. But because c. 1529 wills that, in ecclesiastical matter, those things be observed which the civil law in the territory establishes concerning contracts, we think, until no authentic declaration has intervened, that those cannot be disturbed who do not think themselves bound by a donation-contract in which the substantial civil form is lacking. Yet there are those who think that, from the mind of the legislator, what c. 1513 establishes concerning the capacity of persons can and must be extended to the form itself: this, in ecclesiastical causes, is to be estimated according to canon law. Cf. Duijnstee, n. 242.

N. B. Conditions of validity and juridical conditions of proof are to be carefully distinguished. In the forum of conscience a valid donation altogether exists, but one whose juridical proof is not had.

St. Alphonsus, III, 720; ed. G., II, p. 185; Lugo, disp. 23; Lessius, l. 2, c. 18; Salmanticenses, c. 4, n. 65 ff.; Sporer, tr. 6, c. 2, s. 3; modern authors cited above. With respect to testaments, see Vermeersch, o. c., n. 222 ff.

Among gratuitous contracts are especially numbered: 1. promise; - 2. donation; - 3. testament, by occasion of which we shall speak of the whole hereditary succession; - 4. mandate and management of affairs; - 5. deposit and sequestration; - 6. loan for use and precarium; - 7. loan for consumption. The first three contracts are unilateral, the others bilateral.

1061. DEFINITION. Promise is a liberal, deliberate, and spontaneous giving of faith, externally made and accepted, concerning a possible and honest thing.

It is said: liberal, and thus it differs from an onerous contract; deliberate, that is, with full advertence; and spontaneous, that is, immune from error, deceit, and fear; a giving of faith, and thus it is distinguished both from donation, in which the thing itself is immediately handed over, and from a mere purpose, which is the simple will of doing something and imposes no obligation; externally made, that is, such that a man can know it; accepted, otherwise consent would not be mutual. But tacit acceptance suffices; indeed, someone can accept for another whose care he manages. Thus a father accepts for children, a religious for a monastery, a prelate for a church, a husband for a wife, etc.; concerning a possible and honest thing; because there is no obligation of impossibilities, and "faith ought not to be observed in evil promises" (Reg. 69, in 6). But if the promise is prodigal, the thing promised must be reduced to equity, according to common estimation; and if the thing is indivisible, nothing is owed (III, 720, 735).

The object of a promise can be either an action to be done by the promisor, a personal promise, or a thing to be furnished for the utility of the promisee, a real promise.

If a promise is made under a certain formula of words, for example one asking: will you give me the book? and the other responding: I will give it, it is called STIPULATION. He who promises is called the promising one or promisor; but he to whom it is promised is called the promisee.

1062. PRINCIPLE. The obligation of a promise depends on the will of the promisor. If he wished to obligate himself only from fidelity, which ordinarily happens, he is held only under light sin, even in grave matter. If he intended to bind himself from justice, the obligation will be grave or light according to the quantity of the matter. But for constituting grave matter in a promise from justice, there is required a quantity four times greater than in grave theft, because the promisor disposes of his own. - In doubt concerning the intention of the promisor, one must stand for the least part.

Points to be noted. 1. An obligation from fidelity says only a moral debt imposed on the promisor from honesty; an obligation from justice superadds to this debt a right to the thing (cf. n. 839), which is acquired by the promisee (Lugo, l. c., n. 12).

2. A public promise, expressed by a public instrument, is always considered elicited from a motive of justice; for that, in the likeness of law, binds successors. According to some authors, the same must be said if the promise is firmed by oath. Cf. Delama, n. 178; Muller, II, § 110; German Code, 311, 313, 518.

3. Any promise, by accident, obliges from justice, namely if a neighbor would suffer damage from the promise not being observed; for example if you promised him a loan for consumption, and he, relying on your promise, did not provide for himself from elsewhere.

4. The promisee cannot secretly snatch the thing promised, because a promise does not give a right in the thing (cf. n. 917). Except if it is a question of a remuneratory promise (cf. Gopfert, II, n. 99). Yet after the fact, he who in good faith has occupied a thing promised to himself does not seem to be held to restitution. The reason is that it is not established that he retains another's thing with the owner reasonably unwilling. Cf. Aertnys, l. III, n. 404; Lessius, l. c., c. 17, n. 44.

5. The obligation of an accepted promise ceases "if afterwards the promised thing is rendered impossible, or very harmful, or illicit, or useless; and generally speaking, as often as there supervenes a notable change of things, which, if it had been foreseen, the promise would not have been made; because a promise made is always presumed under such a tacit condition" (III, 720). Cf. the things said n. 1060.

IT IS ASKED. Whether a promise obliges if before execution the promisee or the promisor DIES?

1. If the PROMISEE dies, it must be distinguished thus: the promise was made either principally in his favor, or principally or at least equally in favor of his family or heirs. If the former, the obligation of the promise vanishes, because the end intended in the promise ceases. If the latter, the obligation presses toward the family or heirs of the deceased (cf. n. 1068).

2. If the PROMISOR dies, the heirs are held to fulfill his real promise, whether toward the promisee or toward the latter's heirs, in the same mode and by the same title by which the deceased was held. But otherwise if it is established that the promisor wished to obligate only himself personally (Lugo, l. c., n. 98). The Codes also are to be consulted here: for example Austrian Code, 955.

Note. But if the promise was made through a mandatary, the promise will have force after the death of the promisor, so that the heirs of the deceased are obligated, provided the mandatary could not yet know of the death of the deceased (cf. Lehmkuhl, I, n. 1287).

With respect to the promise which an heir ab intestato made to a dying man, see n. 1083, fin.

1063. DEFINITION. Donation is the bestowal of one's own thing made from liberality, accepted by the donee. - Therefore three things are required for donation: on the part of the donor, liberality, to which no right compels; on the part of the donee, acceptance, which renders the act perfect; on the part of the thing, transfer of ownership.

Transfer of ownership to the donee is not perfected everywhere in the same way. For in some places it is perfected by the delivery of the thing itself, and elsewhere even before delivery.

a) From Roman and German Law it is perfected by the delivery alone of the thing; and if the donor refuses to make this delivery, an action against the donor is conceded to the donee, since he has a right to the thing.⁰²

b) From Austrian Law the transfer is perfected either by delivery of the thing or by an authentic document subscribed by a notary (Austrian Code, 943).

c) From French, Italian, Spanish Law it is perfected even before the delivery of the thing. Nevertheless, if movable goods, after a donation has been made, are donated or sold and delivered to another, this latter, provided he is in good faith, can retain them, since law thus disposes on account of the public good. - But the unfaithful donor is held concerning damage toward the donee.⁰³

From this you will infer: the donee, as soon as he has acquired ownership of the thing, can use it so that it becomes fruitful, even if, for example, it is a question of money for Masses which were to be said after the death of the donor, provided the possessor furnishes security. Ami du Cl., 1910, p. 111.

The FORM in which donation must be made is accurately indicated by Positive Law.⁰⁴ Yet let the things which we said above n. 1054 be recalled. From the law of nature no form is required. Also, no solemnity is required by Positive Law for manual donations, which are perfected by delivery alone.

From this you will conclude: if parents secretly donate to illegitimate children, for example through manual donations, fideicommissum, something not conceded by law, they are not to be troubled, and much less the children accepting, provided such disposition is illicit under no other title (III, 952).

DIVISION. Donation is distinguished: 1. simple, which is made without limitation, and qualified, which is made under condition or mode; 2. purely liberal, which supposes no obligation in the donor, and antidoral or remuneratory, which supposes an obligation of gratitude; 3. donation between the living, by which someone actually and irrevocably transfers the ownership of his thing to another accepting; and donation on account of death, by which ownership is not transferred into the one accepting unless the donor has died (cf. n. 1068, q. 2).

Note. Civil law favors donations as little as it can; for it restricts the donor's capacity, limits the disposable matter, and prescribes a solemn and therefore more difficult form. Yet in Roman Law donation for pious causes, and in modern Law donation on account of marriage, enjoys peculiar privileges (cf. Spanish Code, § 1327 ff.).

1064. PRINCIPLES. I. All can donate who are impeded neither by nature nor by right. Now, by nature those lacking the use of reason are impeded; but by Right⁰⁵ minors, wives, interdicted persons, etc., are impeded (cf. n. 1037, 1038). Moreover, in various places relative incapacity is in force, for example of spouses toward each other; concerning this incapacity the Law of one's own region must be consulted.⁰⁶

1065. II. One's own and present goods can be donated, by whose cession neither the rights of creditors nor the legitimate of necessary heirs are injured. Thus from Law partly natural, partly positive.

Therefore it is required: 1. that the goods be one's own; wherefore administrators of communities cannot make donations from the patrimony of these communities, unless they are remuneratory, or unless they are expended in alms; - 2. that the goods be present; for future goods are commonly prohibited by Positive Law from being donated, except in the determined circumstances described there;⁰⁷ - 3. that the rights of creditors not be injured; for goods are not understood unless debt has been deducted, as the axiom bears: "No one is liberal unless liberated." But the donee accepting becomes a participant in the donor's injustice, and is held to restitution, provided he knows that the donor is made unequal to restoring (III, 722); - 4. that the legitimate remain intact, or the portion of goods owed to necessary heirs (cf. below n. 1081).

Yet it must be adverted that remuneratory donations are not computed among donations properly so called, when they are made according to the quantity and quality of merit, according to the estimation of prudent men; nor manual donations, which are usually made among relatives and friends, as little gifts, etc. - Nor does civil law prohibit donations from mere revenues; for the legitimate portion owed to necessary heirs consists only in the patrimony, that is, only in the capital, which parents are held by no right to increase.

1066. III. Donation is always revocable before acceptance, even if it has been firmed by oath; it is sometimes revocable after acceptance. The reason for the former is that no obligation can be contracted without the mutual consent of the parties, and because an oath follows the nature of the act. The reason for the latter is that such a change of circumstances can be given that revocation of the donation becomes licit. See other things n. 1068.

As to the first, note: a) Tacit acceptance suffices, for example if a donation is made to one present and silent; because in favorable things silence is held for consent. Otherwise French Code, 894 and 932. Indeed, a donation made to infants has force before the acceptance of the donee, because the law itself accepts for infants (III, 725).

b) But acceptance is not necessary, at least in Roman Law, if donation is made immediately to God, for example in these words: I promise God to give to such a church, etc.; because, since the intention is borne toward God, the donation has force as a vow. But if it is made immediately to a church, hospital, etc., the acceptance of the prelate, administrator, or at least of some private person who accepts in the name of the church, is more probably required. "In doubt concerning the intention of the donor, he is presumed to have had the mind of vowing, because, in pious causes, when a promise is made in absence, commonly the intention is borne toward God" (III, 726).

c) From several Codes,⁰⁸ a donation made in a nuptial pact cannot be impugned on account of defect of acceptance.

As to the second, observe: The causes on account of which a donation, even one accepted, can be revoked are the following: a) If the conditions under which the donation was made are not fulfilled. b) If the donation is inofficious, that is, if it injures children in the legitimate; in which case, it is the common disposition of Law that the donation be reduced to the disposable part. c) If the donee has become enormously ungrateful, for example if he has attempted to bring death on the donor, if he has inflicted grave injuries on him, if he has refused him necessary food. d) If offspring is born to the donor who previously lacked it. But how far the faculty of revoking extends itself in these cases, and what must be observed by the donor, Positive Law recounts, which admits the greatest variety in this matter.⁰⁹ Cf. Pruner, de Jure, I, § 144.

In GERMAN Law (l. c.), the birth of offspring is not a cause of the revocability of donation; on the other hand, another cause exists, namely, if the donor does not have power to support himself according to his condition, namely to procure support owed to spouse or relatives.

1067. IV. All who are capable of possessing can acquire donations. Wherefore it suffices that the donee at the time of the donation is conceived; but a donation made to one to be born is considered made under the condition that he be born alive and viable (cf. n. 741).

By Positive Law, communities are commonly prohibited from accepting donations without the consent of civil authority; and this disposition, insofar as it is a question of communities subject to ecclesiastical jurisdiction, is plainly unjust (cf. n. 874).

Likewise, by relative incapacity, several are prohibited from accepting donations from determined persons, or in peculiar circumstances. The disposition of laws in this matter is not everywhere the same. Yet rather commonly, incestuous and adulterine children cannot accept from their own parents except food alone, and recognized natural children only the legitimate.¹⁰

1068. • Questions. QUAER. 1. If before acceptance the donor or donee DIES, what is the right?

Resp. 1. If the donor dies, the matter is doubtful: some deny that the donation can be validly accepted, "because, after the death of the donor, his will cannot be united with the consent of the donee, as is required for acceptance" (III, 729). But others affirm it, "from the fact that the will of the donor virtually perseveres in the letters, or in the messenger sent, or in the legation given to him of making the donation."

"Supposing that each opinion is probable, I say that if the donee in good faith accepted the donation, and has already accepted the thing donated, he can lawfully retain it." Otherwise if in bad or doubtful faith (H. Ap., X, 130). - But if the donation was made through a messenger, when the messenger and donee were still ignorant of the donor's death, the donation certainly is valid (III, 730).

2. If the donee dies, it is more probable that his heirs cannot accept; "because an heir succeeds in the real rights of the deceased, but not in personal ones, such as is the right of accepting a donation. Yet Lessius concedes that, if the heir is the son of the donee, from equity he could accept, since such a mind of the donor is to be presumed" (III, 731).

QUAER. 2. What must be observed with respect to donations made ON ACCOUNT OF DEATH?

Resp. Donation on account of death has this as proper to itself, that ownership of the thing is transferred to the donee neither immediately nor irrevocably; but only under a double condition, namely that the donor die and that he not revoke the donation. Therefore it differs from donation between the living in that it is revocable; and from testament in that the acceptance of the donee is required (H. Ap., X, 134).

In ROMAN Law, likewise in SPANISH Law,¹¹ donation on account of death has force, provided it is made concerning the disposable part, between capable persons, and is confirmed by the death of the donor. It is revoked by the fact itself if the donee dies, nor does it pass to his heirs (III, 741).

In FRENCH and ITALIAN Law, donation on account of death is not admitted. Concerning it those things have force which were said of contracts entered upon without due form (n. 1054).

In AUSTRIAN Law, donation on account of death has force as a contract if it is accepted and declared irrevocable; concerning which a public document must be handed over to the donee. But if it has the conditions of a testament, it has force as an inheritance or legacy.¹²

In GERMAN Law,¹³ donation on account of death is not admitted; but promise of donation on account of death is recognized, that is, a promise of donation made under this condition, that the donee survive the donor; it has force as a last will.

But here it must carefully be noted that not all donations made by occasion of death are donations on account of death. Thus, for example, a donation made irrevocably, even if under the condition of death, for example I give you this thing, if I die in this danger, is truly a donation between the living, since the condition does not depend on the will of the donor. A fortiori, a disposition is to be held as a donation between the living by which a sick man actually and irrevocably donates a thing, whether movable or immovable, to a friend or relatives.

We shall treat: 1. of hereditary succession in general; - 2. of legal succession; - 3. of testamentary succession.

1069. DEFINITION. Hereditary succession is the acquisition of the right which the deceased had at the time of death, or in other words: it is the mode of acquiring ownership of the goods and rights of the deceased.

INHERITANCE, or the hereditary estate, is the whole right, or universality of goods, of the deceased, and comprises all his rights and burdens which are not merely personal. - Heir is called the one to whom belongs the right of entering upon the inheritance.

DIVISION. Hereditary succession is twofold. One is LEGAL, which is also called succession ab intestato; through this the goods and rights of the deceased are acquired from the disposition of law, without a testament. Another is TESTAMENTARY, and through this the goods and rights of the deceased are acquired from his last will, or legitimate testament. Of testamentary heirs, some are necessary: these cannot be excluded by the testator; others are voluntary, namely those who, from the free will of the testator, obtain hereditary right (III, 945).

In certain places, pactual succession is also admitted, through which the goods and rights of the deceased are acquired by a pact which he, while living, entered upon with the heir. To such succession what we are about to say concerning either legal or testamentary succession can easily be accommodated. Cf. German Code, 2274-2300; Austrian, 1217.

1070. PRINCIPLES. I. Hereditary succession is a mode of acquiring ownership which is rooted in Natural Law and is more distinctly defined in Positive Law. Thus the more common and more probable opinion. - The reason for the first is that domestic society cannot consist nor be perpetuated without the right of succession. For the perpetuity and vigor of families requires that children be able to perceive some benefit from the labors of their fathers. Now, when the right of succeeding is taken away, the principal stimulus which compels men to labor is taken away; every zeal for progressing in arts and in sciences is taken away; care for the family estate itself is taken away, since there is no one who would wish to treasure up for unknown persons. Similarly, when the right of making a testament is taken away, the father is reduced to the condition of a mere administrator, and his authority, so very necessary in his own family, decreases. - The reason for the second is that many things pertaining to successions are obscure or litigious, so that they can be defined by supreme authority alone. Likewise, there are many things which, on account of the common good, must be diverse for diverse circumstances of time, place, form of government, etc. But for the ordering of these, supreme power is required.

1071. II. Succession is opened at the very moment of death, in the place of the last domicile of the deceased; and possession of the goods is deferred immediately to the heir.⁰¹ Yet if the testator has appended a condition concerning the future, one must wait until it has been fulfilled, for example if a legacy has been made under this condition, that the legatee enter Religion.

In other places,⁰² the heir declaring the acceptance of the inheritance before a judge can immediately enter upon it. In others,⁰³ judicial immission is required. Let each one consult his own Law.

1072. III. When the inheritance has been opened, the heir is not held to accept it,⁰⁴ as the common axiom bears: NO ONE IS HEIR UNLESS HE WISHES. But acceptance, unless judicial immission is required, can also be made tacitly,⁰⁵ for example if the heir mixes himself in the affairs of the succession. But to decline the quality of heir, express renunciation is required, since this is never supposed.⁰⁶

So that the heir may be able freely to determine himself to acceptance or renunciation of the inheritance, a twofold benefit is conceded to him by law: 1. The RIGHT OF DELIBERATING for a certain time;⁰⁷ and when this has elapsed, from French, Italian, and Spanish Law, he can be compelled judicially by those whose interest it is, so that he may open his mind; but when no one contradicts, the time is prolonged to the years of the longest prescription.⁰⁸ From German Law, if the heir, after the six weeks conceded for deliberating, has not repudiated, he is considered to have accepted.⁰⁹ And here it must be noted that someone can renounce the quality of legitimate heir, and reserve to himself the quality of instituted heir; likewise, refuse a legacy offered under universal title and accept a legacy conceded under particular title. Renunciation effects that the quality renounced, and therefore the rights and burdens annexed to the same, are held as if they had never existed.¹⁰ - 2. The RIGHT OF INVENTORY, that is, the right of describing all the goods, credits and debts, of the deceased,¹¹ so that thus the state of the inheritance may be perfectly known. If among several heirs one demands an inventory, the others are held to consent;¹² indeed it must always be completed if the inheritance is deferred to an interdicted person, a minor, an absent person, or a moral body.¹³ Likewise, in Germany, it must be done if one of the creditors postulates this.¹⁴ Ordinarily nevertheless, in German law, there is no place for the use of inventory, since the heir can provide for himself in other ways. Cf. also what must be said n. 1084 ff.

1073. IV. The heir by entering upon the inheritance transfers into himself not only the benefits and rights of the deceased, but also his debts and real burdens. We say:

1. Benefits and rights, namely real rights; for personal rights, by which the deceased enjoyed, as usufruct, right of habitation, etc., are extinguished with him.

2. Debts and likewise real burdens, which each of the heirs is held to bear pro rata, unless the testator has determined otherwise.¹⁵ St. Alph., III, 961.

Let it be noted: 1. He who uses the benefit of inventory and duly and without fraud completes it obtains: a) that he is not held to pay debts beyond the powers of the inheritance, and that he can cede all the goods to creditors; b) that his own goods are not confused with the goods of the inheritance, and therefore that he can, like any other creditor, reclaim his credit and the expenses of his administration from the inheritance; c) that he has power to sell the immovables of the inheritance at public auction. The heir, or executor of the testament, is held at the end of his administration to render account to creditors and legatees; but all expenses, even for funerals and for appending seals, belong to the inheritance itself.¹⁶

2. He who neglects the inventory is considered by Civil Law to enter upon the inheritance purely and absolutely; and therefore he is held, even beyond the powers of the inheritance, to pay debts.¹⁷ But whether he is held to this also in conscience is controverted. The more common and more probable opinion denies it (H. Ap., II, 26; Marres, n. 271). Indeed grave authors add that the heir is not held to this even after the sentence of a judge, because such a sentence is founded on presumption of fact, namely of fraud on the part of the heir, as if he had omitted the inventory in bad faith, so that he might better hide everything. Cf. Lehmkuhl, I, n. 1398. Yet the creditor can use the favor of the law.

1074. V. If there are several heirs, partition of the inheritance is made: 1. amicably among those of age, present, and concordant, either through a private act or through an authentic act before a notary; - 2. judicially, if minors, interdicted persons, absent persons, etc., are present, or if litigation concerning the inheritance is moved.

On account of the excessive diversity of Laws it would be too long to explain each thing. We touch lightly on the more common things, referring to the Codes for fuller knowledge.¹⁸

The principal rule to be observed in partition is EQUALITY among the heirs. But equality would be injured in a threefold case: 1. in the case of anticipated acceptance, namely if one of the heirs had already accepted certain things from the deceased, by which his portion would increase beyond right; 2. in the case of lesion, namely if some object had not been estimated at a just price; 3. in the case of eviction, namely if one of the heirs were disturbed from the goods received in the partition. So that this threefold inequality may be excluded, against the first there is place for collation, against the second for rescission, against the third for assurance (Carriere, II, 535).

a) COLLATION is the act by which individual heirs refer to the sum of goods left to be divided those goods which they received from the deceased through donation between the living.

Hence, if a father has donated fields or a great sum of money to one or several children, for example by occasion of marriage, the other children, enriched by no similar gift, can demand that, in the division of the inheritance, account of donations of this kind be had (III, 954-960). Likewise it must be said if the father redeemed a son from military service, provided he did not do this for his own utility, that is, the father's, or for the family's utility.

Yet from collation are exempted: 1. Those things which the deceased gave by expressly exempting the heir from collation. 2. Ordinary expenses of education, that is, what was spent for food, clothing, instruction, books, academic degrees, benefice, nuptial costs, liberation from the penalty of prison or death, and customary little gifts. For these are considered less gifts than payment of a debt, since parents are held to supply these things to children. 3. Fruits of things to be referred which came to the donee before the death of the donor; for from the civil Code they are not owed except from the day of the opened succession. 4. An immovable good which perished by fortuitous chance without fault of the donee.¹⁹

b) RESCISSION is the act by which, on account of lesion of some party, a preceding partition is irritated, so that a new one may be instituted.²⁰ A simple passing over of some object in partition does not give place to rescission, but only to a new partition.

In the forum of conscience, every damage culpably inflicted must be repaired; but in the external forum, only that which is beyond the fourth part, if it is a question of mere lesion, force or deceit being excluded. But if force or deceit was present, any lesion of some moment suffices for obtaining rescission.

c) ASSURANCE is the obligation which lies upon all the heirs pro rata and in solidum, of making unharmed the coheir who has suffered eviction in the portion obtained. Yet it is required that the cause of eviction existed before the divided inheritance.²¹

1075. Things to be noted beforehand. 1. A legitimate heir can succeed either by his own right, that is, on account of the right which the personal degree of consanguinity confers, for example when a son succeeds a father; or by right of representation, that is, on account of the right which he obtains because, substituted in the place of another, he is held as taking the place of that person's person with respect to the succession to be occupied. Thus grandchildren are called in place of a deceased father to the succession of the grandfather.²²

Commonly, the right of representation is admitted only in favor of descendants, both from the deceased himself and from his brothers.²³ In AUSTRIA, however, it is extended to all heirs;²⁴ in GERMANY to the first three orders.²⁵

2. Succession is either by heads, when namely the inheritance is divided equally according to the number of persons, or by stocks, when the division is made according to the number of stocks, which then happens when someone comes by right of representation; or finally by lines, when the inheritance is divided into two parts, one of which is allotted to the blood relatives of the paternal line, the other to the blood relatives of the maternal line.²⁶

1076. The RULES of legal succession are chiefly the following:

I. When a valid testament is lacking, the law itself determines the mode of succession, with consideration both of the common good and of the presumed will of the deceased.²⁷

II. Commonly the right of succeeding belongs to all who are joined to the deceased by a bond of kinship, not only natural, but also civil, that is, through adoption.²⁸

III. Those joined are divided into various orders,²⁹ of which the prior excludes the later, so that heirs of a subsequent order do not come unless any heir of a preceding order is lacking.

IV. Among heirs of the same order, division is made according to special rules, which among various peoples are established variously, just as the constitution of the orders itself is various.³⁰

Here are the more common rules:

1. Descendants³¹ constitute the first order; if they are lacking in the first degree, their children come by right of representation. Parents³² come in the second order, in some places alone, in others together with the brothers of the deceased, or the children of these, by right of representation. - Ascendants in a more remote degree³³ come in some places in the same order with parents, elsewhere in a subsequent order.

2. Brothers³⁴ are privileged among all collaterals: they come in a special order, and those who descend from them enjoy the right of representation. Full brothers,³⁵ or bilaterals, have broader privileges than consanguine or uterine brothers, or unilaterals.

3. The surviving spouse³⁶ is regularly computed among legitimate heirs, not in a determined order, but with heirs of any order, for his or her own part. Thus, for example, in ENGLAND a wife receives the third part of the goods of her intestate husband if he leaves descendants; otherwise half.³⁷ - In GERMANY she receives in the first case only the fourth part, in the second half.³⁸ In AUSTRIA a spouse, if there are three or more children, succeeds with them into an equal part, but only with respect to usufruct. If, in defect of descendants, a legitimate heir is present, the spouse receives the fourth part in ownership; if none, he or she succeeds into the whole inheritance.³⁹

4. Natural⁴⁰ and spurious children do not enjoy the same rights as legitimate or legitimated children. With respect to the father, they are either restricted to food alone or obtain a greater or lesser portion according to the diversity of the order in which heirs come from legitimate kinship. With respect to the mother, natural children succeed as legitimate, and spurious children can probably retain what they accepted from the mother.

5. Everywhere the treasury⁴¹ comes after all, that is, when any other heir is lacking (cf. n. 884).

6. As incapable, he who at the time of the opened succession was not conceived, or was not born viable, is excluded from legitimate succession; similarly he who is civilly dead. Cf. n. 1042, 3. A child whose parents are related in an indispensable degree likewise, by common Law, is not admitted to succession as incapable. Pruner, Moraltheol., p. 634 and 638.

7. As unworthy, he who is proved guilty of an enormous offense against the deceased is excluded.⁴²

1077. Things to be noted beforehand. A disposition concerning goods of fortune can be made: by testament, by codicil, by legacy, or finally by substitution.

1. TESTAMENT, from modern Law,⁴³ is a disposition concerning those things which someone wills to be done concerning all his goods or concerning a certain part of them, for the time following his death.

Formal institution of an heir is not required, but any denomination is admitted, provided it is clearly expressed how the testator intends to dispose of his goods for the time following his death.

2. A CODICIL is a declaration of last will, less solemn, by which someone, without the direct institution of an heir, decrees something concerning his succession.

In modern Law, a codicil is commonly held in the likeness of a new testament, and in it the prescriptions of a holographic testament must be observed. Otherwise, however, in some provinces of Spain: in Catalonia, Aragon, and Vasconia.

3. A LEGACY is a disposition of last will by which the testator, from goods coming universally to the heir, leaves something to another, in words directed to him, to be furnished by the heir.

It is said: in words directed to him, for example I leave to Titus, etc.; for if the words were directed to the heir, in favor of Titus, it would be FIDEICOMMISSUM.

In FRENCH Law⁰¹ there is no distinction between an heir from testament and a legatee. In testamentary dispositions, three species are distinguished which have the same effects, whether they are made under the name of institution of heir or under the denomination of legacy, namely: 1. Universal legacy, by which the testator donates the universality of his goods, either with the burden of furnishing particular legacies or without this burden. 2. Legacy made under universal title, by which the testator donates an aliquot part of the goods, for example a half or third part, all movables or immovables, etc. 3. Legacy made under particular title, by which a determined part of the goods is donated, for example one thousand gold coins, a library, a statue, etc.

In ITALIAN,⁰² SPANISH,⁰³ and GERMAN Law,⁰⁴ the first and second species of disposition bestow the quality of heir, the third disposition the quality of legatee.

4. SUBSTITUTION is a disposition of last will by which another is subrogated into the place of an heir. It is vulgar or direct, and fideicommissary.

Vulgar substitution is a disposition by which, into the place of an heir who cannot or does not wish to accept the inheritance, another, indeed even a third and fourth, is substituted.

Fideicommissary substitution, or fideicommissum, is a last will by which the testator commits something to the faith of an heir or legatee, to be handed over to another. But the thing committed must either be handed over immediately, or be preserved by the fideicommissary heir for some time, generally until death, and afterwards be handed over to another (cf. 1068, 2).

In modern Law, fideicommissum is either altogether excluded⁰⁵ or is subject to peculiar laws.⁰⁶ But it must be recalled that fideicommissary substitution for pious causes has force in the forum of conscience; for from Canon Law, by which they are governed, they are held valid.

These things having been set forth, we must treat: 1. of the requisites for the value of a testament; 2. of the execution of a testament.

For the VALUE of a testament, some things are required on the part of the testator, others on the part of the heir, others on the part of the form.

1078. PRINCIPLES. I. On the part of the testator there are required: the power of making a testament and a free will of making a testament once had, and not retracted at the time of death.

We say: 1. The power of making a testament is required. - Now: a) From the law of nature, the faculty of making a testament concerning one's own things belongs to all who enjoy integrity of mind and labor under no vice of body by which they are impeded from declaring what they wish to be done concerning their things after death. Therefore by nature the incapable are infants and the perpetually insane, drunk persons, the furious, and all who actually lack the use of reason (III, 942). - b) From Positive Law, some who would be capable by Natural Law are legitimately prohibited; because it belongs to law to provide for the public good.

From modern Law, minors, interdicted persons, and the guilty of certain crimes enjoy no faculty or a restricted faculty. Wherefore the particular laws of various peoples must be consulted. Here we shall add only a few things about the faculty of minors, as being of more frequent use.

From French Law,⁰⁷ one who has not yet been born for sixteen years cannot make a testament. From the seventeenth year to the completed twenty-first year, a minor can, by testament, dispose of half of those goods about which, if he were of age, he would have power to dispose absolutely. From Italian Law,⁰⁸ one who has not yet completed eighteen years cannot make a testament. But when this year has been completed, he can be a testator, like all others. - From Austrian Law,⁰⁹ the impubes cannot make a testament. But those who have attained the years of puberty, but have not yet been born for eighteen years, can make a testament only orally and before a judge. But from the nineteenth year they enjoy full faculty. From Spanish Law, minors of either sex can make a testament after the completed fourteenth year.¹⁰ From German Law, minors not yet born for sixteen years cannot make a testament; from this age then up to majority they can make a testament orally before a notary.¹¹ From English Law, minors are altogether prohibited from making a testament (Crolly, II, 334).

2. A free will of making a testament is required, etc. The things which can be opposed to liberty were said above (n. 1045 ff.), where we treated fear and error.

1079. Points to be noted. a) Any testator can at will, either in part or in whole, revoke a testament made by himself. "For the will of the deceased is ambulatory up to the supreme end of life."¹² But revocation is made either expressly through a new testament or another authentic act, or tacitly through cession of the thing legated. A testament deleted or torn is held as revoked, unless it is established that the violation of the writing was made contrary to the will of the testator.¹³

b) Several testaments made by the same person can subsist together, insofar as namely the earlier does not contradict the later.¹⁴ Yet this is not admitted in Roman, Austrian,¹⁵ and Spanish Law,¹⁶ unless in the subsequent testament express mention is made of the preceding, and unless it is declared whether, either in part or in whole, one must stand by it.

c) A testament is revoked by the law itself if, after it has been made, a necessary heir appears who was altogether passed over.¹⁷ - Yet French Law and Austrian Law do not admit this disposition, but each Law reduces the testament to the disposable part. From German Law, the testament can be impugned by this necessary heir.¹⁸ From Spanish Law, the testament is revoked, but the legacies remain firm unless they are inofficious.¹⁹ In place of this disposition, in English Law this other disposition is in force, namely that a testament, whether of a man or a woman, is rescinded by subsequent marriage (Crolly, II, 363, 2).

1080. II. On the part of the heir, it is required that an incapable person not be instituted, and that a necessary heir not be injured.

We say: 1. That an incapable person not be instituted. Moreover, the capacity of the heir is not required for the time at which the testament is made, but for the time at which the testator dies. But since no natural incapacity is given, anyone who is not prohibited by Positive Law can be instituted as heir, even if he lacks the use of reason.

From modern Law,²⁰ commonly, those intervening in the making of the testament are prohibited from being instituted in the goods left through this testament. In Germany, besides those, no other is declared incapable. - From other Codes, rather commonly, those are prohibited to whom it is not conceded to accept donation between the living, namely: those not yet conceived, unless insofar as substitution is permitted, and those not born viable, as abortive fetuses (cf. n. 741); certain guilty persons, as a penalty of delict; illegitimate and spurious children, who can accept nothing beyond the portion determined by law from their own parents. In French²¹ and Spanish Law,²² a special inability is pronounced in a tutor with respect to the goods of the pupil; in a physician and a minister of worship, with respect to the goods of the deceased to whom, in the last illness, they furnished the work of art or ministry, with respect to confession.²³ Likewise,²⁴ a wife without the consent of her husband, and public institutions without the consent of the government, cannot accept an inheritance deferred to themselves. - From English Law,²⁵ subjects of a nation which actually moves war against the English nation are prohibited from being instituted; likewise, a cessor of goods whose cession is not approved.

2. That a necessary heir not be injured; that is, that he not be excluded, or be frustrated of his legitimate part. A necessary heir cannot be excluded unless on account of causes stated in the law. In this case, the one excluded has a right to food alone, if he does not have this from elsewhere; otherwise, to a determined part of the goods, which is called reservation or legitimate portion.

1081. a) Necessary heirs, from both Roman and modern Law, commonly are legitimate or legitimated descendants; and when these are lacking, ascendants, whether paternal or maternal, but only in the nearer degree.²⁶

From Italian, Spanish, and German Law, the surviving spouse is also computed among necessary heirs.²⁷ In English Law, necessary heirs are not given, and, unless it is a question of the transmission of lands, the testator enjoys full liberty.

b) Causes of exheredation are the most grave offenses of children against parents, for example if a son attempts to kill his parents, acts against them in criminal causes of death, perpetual exile, etc.

The same causes are not everywhere admitted; let each see them in his own Law.²⁸ In French and Italian Law, a son cannot be exheredated except on account of unworthiness declared by the sentence of a judge; by which law jurists advert that paternal authority has been not a little injured. But in German Law, for exheredation it suffices that at the time the testament was made the cause existed and is expressed in the testament.²⁹

c) The legitimate part owed to necessary heirs is that portion of goods which supplies the faculty of living honorably according to one's proper state. The matter is more accurately defined in various Laws.

From French Law:³⁰ the portion reserved to legitimate children, if there is one, is half of the goods; if there are two, two-thirds; if three or more, three-fourths. - To ascendants in defect of descendants, if they are present in each line, half; if in one line only, a fourth. To recognized illegitimate children is owed the part which is allotted to them by law in succession ab intestato.

From Italian Law:³¹ to legitimate descendants is owed half the part, whatever be their number. To illegitimate children is owed the part which the law assigns to them in succession ab intestato. Ascendants, without distinction of lines, have right to the third part. The surviving spouse, if he or she comes with legitimate children, is computed in their number and obtains his or her portion not indeed in ownership, but only in usufruct; if he or she comes with others, he or she obtains in the same mode, that is, in usufruct, a third part.

From Austrian Law:³² half the part is owed to descendants, and a third part to ascendants. Natural children have a definite reservation in the goods of the mother alone. To the surviving spouse, although he or she is not a necessary heir, if poor, suitable support is owed, as long as he or she has not flown to second nuptials.

From German Law:³³ heirs have right to half of the portion assigned to them in legal succession, whatever be their number.

From Spanish Law:³⁴ parents are conceded power to dispose at will concerning a third part of their goods; a third part is owed to descendants; the remaining part is owed to the family, yet in such a way that, with the right of the wife preserved, they can assign it at will to one or more children, the others being set aside. To ascendants, if descendants are lacking, half the part from the goods of children is owed.

1082. III. On the part of form, nothing determined is had by Natural Law; but by Positive Law various formulas are prescribed according to the diversity of testaments.

By reason of form, a testament is: 1. Common or privileged, according as the ordinary form is observed, or by privilege one is dispensed from it. Privileged are testaments of soldiers waging war, of those laboring under plague, of those sailing, etc.³⁵ But when the circumstance which was the cause of the privilege ceases, a certain time is conceded for making a common testament, and the privileged one falls. 2. Solemn or private, according as it is made with determined solemnities, for example with a notary or judge and witnesses, or without them. But a solemn one is public, or mystic or closed.

We shall say nothing about the form of a solemn testament. For in modern Law, commonly, a public minister is required, who intervenes in the name of society; but he will have care for the dispositions of law to be observed.

A private form, and indeed the simplest, is had by a holographic testament: namely that which is written entirely by the hand of the testator, with indication of year, month, day, in Germany also place,³⁶ and with the apposition of the name, in the form of a chirograph. As these three conditions are required for its validity, so they also suffice. - You will note besides: 1. the addition of day, month, and year can be made by arithmetical notes, and placed in any part of the testament; yet it is safer to write these in whole letters at the end of the testament; 2. the inscription of the place where the testament is made is considered by no means necessary, except in Germany; for the testament has force wherever it has been drawn up; 3. any paper, even if not sealed, suffices.

In FRENCH, ITALIAN, SPANISH, GERMAN, and AUSTRIAN Law, a holographic testament is admitted.³⁷ And in AUSTRIAN Law, an allographic testament, written by another, and a nuncupative testament are also admitted; see their form in the Code itself.³⁸ - In ENGLISH Law it is required that the name of the testator be appended to the written testament, or be recognized as duly appended, in the presence of two witnesses, who themselves also must subscribe their names (Crolly, n. 338).

1083. • Questions. The various questions which can be posed regard either the licit and illicit in making testaments, or informal testaments. Hence there are questions of diverse genus.

QUAER. 1. Whether parents sin by injuring the legitimate of children?

Resp. Affirmatively, of itself; and indeed against legal justice alone.

For it belongs to civil society to determine the order of successions, according to the mode which the common good requires. - They do not sin more probably against commutative justice, because they dispose concerning their own thing. For a necessary heir acquires strict right in the goods only after the death of the testator. St. Thomas, 2. 2, q. 57, a. 4; Genicot, I, n. 677.

We said of itself; because: 1. Parents do not seem to sin in any way who, for a just cause, partially injure the legitimate of children in some particular case. For the end of the law ceases when a disposition in itself inofficious, by reason of circumstances, profits the family and is not opposed to the common good: for example, if a father should allot certain remuneratory goods to an upright son, whence less would come to a dissipating son; - or even if he should allot more to one of his children, so that he could more safely continue the paternal commerce, etc.

And this ought to be admitted the more easily, the more modern laws restrict paternal authority. - 2. Parents also do not seem to sin who would spend their goods on pious works, even if they injure the legitimate of children, provided these do not lack honorable support (III, 740, 750). This opinion was already held probably by the ancient Doctors (cf. Genicot, I, n. 677, note; Lehmkuhl, I, n. 1392).

From these things conclude: a) After the fact, children who have received a greater part than owed are not to be troubled when, from the adjuncts of things, it can be conjectured that the parents favored them for a just cause. This has force especially if they are in good faith, and it can deservedly be feared lest they refuse to yield anything.

b) Heirs whose legitimate part has been injured use their own right if before tribunals they attack dispositions harmful to themselves, even if it is a question of dispositions for pious causes. Cf. Genicot, l. c.

c) Parents can secretly make legacies to illegitimate children, even those not legally recognized, although these have no right to them, with the rights of legitimate children nevertheless preserved and scandal excluded (Genicot, I, n. 679).

d) The following question is more difficult: in the case in which a testator, while the first wife was living, entered upon a new civil marriage, can the possible children born from this adulterine concubinage accept the legitimate part assigned to them as also to legitimate children; - or, if nothing was assigned, claim the legitimate part?

Resp. To the first, affirmatively, because according to the path of Positive Law this part has been left to them; nor does Natural Law stand in the way, because the testator, disposing all things in this way, did not injure the strict right of the legitimate children, as was said above.

To the second, negatively, namely if the last will of the deceased is clearly expressed in the testament. Reason: the children born from the first marriage, in the case, immediately after the death of the testator obtained strict ownership of the part assigned to them. Moreover, it is against piety to impugn the expressed will of the father. Civil law indeed receives the second marriage into an equal condition of right with the first, but it cannot in the case favor the illegitimate children, since it is evidently inequitable.

We said: if it is expressed in the testament, etc.; for in doubt concerning the will of the testator, impugnation could licitly be made. Similarly, if the deceased did not make a testament; for then he is considered to have wished that all things be distributed according to the norm of Positive Law. Cf. Genicot, II, 562, IV, against Lehmkuhl (I, n. 1396), who expresses himself rather doubtfully.

QUAER. 2. To what is the testator held toward blood relatives who are not necessary?

Resp. 1. Toward brothers and sisters, and likewise toward the spouse, if he or she is not a necessary heir, the testator is held under grave sin to leave by legacy that which is necessary for relieving their grave want. Yet this obligation presses from charity alone.

2. Toward remote blood relatives, even if they are constituted in grave necessity, and toward brothers, sisters, or spouse who are not situated in grave necessity, the testator is held only under light sin (III, 946; H. Ap., X, 237; l. El. qq. ref., n. 39). Cf. what we said n. 702.

QUAER. 3. Whether a testament or legacy lacking legal forms has force in conscience?

Resp. 1. If it is a question of profane causes, for example of legacies directed to blood relatives or friends, the question must be solved according to the principles explained above (n. 1054).

Hence for practice: a) The heir ab intestato can, with safe conscience, use the benefit of the law by seeking the rescission of an informal testament; and similarly a legatee from an informal testament can licitly claim the goods legated to himself, if the heir does not wish to use his right, or even if he is ignorant of the vices of the testament. b) Before the sentence of a judge, neither is the heir held from justice to pay merely liberal and profane legacies, unless by force or fraud he impeded the validity of the testament, or unless with an oath he promised to pay them; nor is the legatee held to restore goods which he has already accepted or which he already possessed by the right itself. But after the sentence of a judge, they cannot either accept the thing or retain the thing accepted (III, 927).

2. "With respect to pious dispositions, it is certain that, if the will of the testator is established to the heir, whether by words, or by nod, or by writing, the heir is held in conscience either to yield the inheritance to the pious place, or to pay the legacies" (III, 923).

A PIOUS CAUSE is called every work which of itself, from the end of the work, or from the intention of the faithful, is ordered to a supernatural end. That supernatural end can regard not only the worship of God or the glory of the Saints, but also the spiritual or temporal utility of one's neighbor. In this last case nevertheless, there must be present the motive of exercising charity, as befits a Christian, and a merely philanthropic motive does not suffice.

Therefore pious causes are: the sacrifice of Mass, churches, monasteries, confraternities, works of mercy, schools, orphanages, even secularized ones, associations of young men for promoting in them love of the faith and good morals. Cf. Aichner, § 143. - Pious causes are not theaters, societies instituted solely for performing gymnastic exercises; indeed hospitals, orphanages, schools which evidently were founded from a merely philanthropic end are not pious causes, whence also their administration was totally withdrawn from the ministers of the Church.

In doubt concerning the nature of the work, one must attend to the end of the one operating.

Pious causes are subject exclusively to ecclesiastical laws. This is clearly demonstrated by positive monuments; nor is D'Annibale, II, n. 339, to be heard, who almost alone among the moderns teaches the contrary opinion. Cf. Genicot, I, n. 675. - The opinion is confirmed by the Rescript of the Sacred Penitentiary, 19 Jan. 1901 (A. S. S., 34, p. 384), where it is said: "The practice of this Sacred Tribunal is ... that generally pious legacies be held as valid and obligatory in the forum of conscience. Yet heirs are easily admitted to composition with the Church or the pious cause to which the legacy was made." Cf. also the Response of the same Congregation, 23 July 1844 (ap. Gury, Casus, I, n. 861) and 23 June 1884 (ap. Genicot, l. c.).

Yet it must be noted: a) If the will of the testator is not established through his undoubted writing, or through words heard from him, or in another similar way, the heir is not held to believe one witness alone, although most approved, for example the pastor or confessor; because there must be at least two witnesses, from Canon Law itself and by reason of the common good, so that frauds may be avoided (III, 924). - b) If someone, as frequently happens in places where civil law is opposed to Canon Law, is completely ignorant of his obligation, and it is feared that he will not obey the admonition of the confessor, he will have to be left in his good faith, as we have already often warned. c) If the matter is entangled with difficulties, let it be referred to the judgment of the Bishop, to whom, from the Council of Trent (Sess. 22, c. 8, de Ref.), the care of the execution of pious dispositions has been entrusted, and who, for this end, has also been instructed by the Holy See with peculiar faculties.

Corollary. An heir ab intestato who PROMISED the deceased that he would certainly fulfill his last wills is held to this, sometimes from justice, sometimes from fidelity alone.

1. From justice, if the deceased abstained from making a testament on account of this promise. For if, in making the promise, the heir intended not to fulfill it, he committed deceit, and thus unjustly impeded a third party from obtaining a good, and therefore he is held to reparation. But if he promised sincerely, he would commit fault by changing his purpose; because he would infer true damage on him who otherwise would have been instituted legatee (Crolly, II, 394).

2. From fidelity alone, if the deceased did not abstain from making a testament on account of this promise. The last manifestation of will then is a testament lacking legal form, and the things noted in the preceding question have force. But there will be an obligation under grave sin from religion if the promise was firmed by oath (cf. n. 1059, Quaer. 2 and 1062).

1084. I. The execution of a testament is committed of itself to the heir, unless the testator or judge, or the heirs themselves, have constituted an executor. This office belongs to him alone who was designated, and therefore does not pass to his heirs.

But so that this office can be undertaken, it is required that the one undertaking it possess the faculty of obligating himself. Hence minors cannot undertake it, even if the license of the tutor accedes; nor a wife, unless the husband consents, which also has force for a wife legitimately separated from her husband. As concerns religious, they can be executors, provided the consent of the Superior accedes and the rule does not stand in the way (III, 936).

1085. • II. The executor must be held as the mandatary of the deceased, and is held to fulfill gratis the office which he has accepted, otherwise in Germany,⁰² while nevertheless his expenses are compensated.

But he must watch: 1. that judicial seals be appended, if among the heirs there are minors, interdicted persons, or absent persons; - 2. that an inventory be made, with the nearest heir present or duly summoned; - 3. that movable goods be sold, if money is lacking for payment of legacies; - 4. that he urge the execution of the testament, especially with respect to pious legacies, which must be paid immediately or at least within six months if a time was not determined by the testator (III, 941).

1086. III. In the execution of a testament, the expressed will of the deceased, where it is had, must be religiously observed; or the will deservedly presumed, where the expressed will is lacking.

Hence: 1. If the words admit a manifold sense, let the mind of the testator be attended to, according to the nature and object of his last will. 2. If any added condition appears either unintelligible, or impossible, or contrary to good morals or laws, let it be held as not appended. 3. If some disposition of the testator rests on a final motive either false or contrary to laws or good morals, let it be held as null (cf. n. 1057, toward the end).

1087. • Questions. QUAER. 1. Who has power to INTERPRET the will of the testator concerning legacies to be made from a testament?

Resp. Any prudent person can make this interpretation, with due account had of the circumstances.

1. A legacy left to virgins is owed even to a corrupted one, if her corruption is occult. 2. A legacy left to virgins originating from a place is not to be given to virgins born there by chance. 3. Legacies left for dowering determined girls so that they may marry can be given to the same ones already married or about to enter or having entered Religion; otherwise, if they are indeterminate. For in the former case the testator is considered to have wished to benefit such persons; in the latter, to free poor girls from the danger of seduction. 4. Things left to the poor, under which name pious causes also are understood, must be distributed according to the order of charity, as was said n. 484. 5. Things left to poor orphans can be given to wretched persons having useless parents, where orphans properly so called are lacking; otherwise in the concurrence of these (III, 930, 938). 6. Things left to a Religious Order can be given also to a Congregation with simple and perpetual vows.

QUAER. 2. Who can CHANGE legacies?

Resp. Civil authority, for a just cause, can commute a profane legacy into another profane legacy; a fortiori, into a pious one. But only the Supreme Pontiff, when a just cause intervenes, will be able to commute a pious legacy into another pious use.

But Bishops, as Laymann and others probably say, can only then interpret the will of the testator and apply legacies to another pious use, when such a cause supervenes which, if it had been known, certainly would have induced the testator to dispose otherwise concerning his things (III, 931; Lucidi, Visit. sacr. lim., c. VII, a. 4).

QUAER. 3. When does the lapse of a testament OBTAIN?

Resp. A testament becomes lapsed when, although valid from the beginning, it cannot attain execution on account of certain circumstances.⁰³

This happens if the thing legated perishes while the testator is living, or if an heir or legatee is lacking. But a legatee is lacking if he dies before the testator, or before the condition has been fulfilled on which the execution of the testament depends; likewise, if the legatee does not wish or is unable to accept the legacy. If the legacy was left to several conjointly, then when one is lacking, his part accrues to the others.

1088. • I. Mandate is a contract by which someone commits to another accepting a matter to be managed in his name. - He who undertakes the office of managing the matter is called mandatary; the one mandating, he who commits it.⁰¹

It belongs to the essence of this contract that the mandatary act the person of the one mandating, so that the things which he does by force of the mandate are held as done by the one mandating. But gratuitousness belongs only to the nature of this contract (cf. n. 1032). Therefore a mandate is considered undertaken gratis, unless a price is sanctioned either expressly or tacitly, for example by reason of the office which the mandatary exercises. Nor does a mandate, on account of an added stipend, pass into a hiring of work, since its essence is not destroyed by such a disposition. Cf. nevertheless what we shall say n. 1141.

Mandate is TWOFOLD: 1. special, if it comprises only one business, or certain determined businesses; 2. general, if it extends itself to all the businesses of the one mandating which are of pure administration.

Among MANDATARIES are numbered the vicars of merchants, who buy and sell wares; those placed over factories, who hire craftsmen and complete agreements; representatives of commerce, brokers (cf. n. 1140), procurators, syndics in cession of goods, etc., etc.2

1089. The one MANDATING is held: 1. to furnish the things necessary for the execution of the mandate, and to pay expenses made; 2. to fulfill obligations contracted by the mandatary and consonant with the mandate; 3. to preserve the mandatary unharmed concerning damages.

1090. The obligations of the MANDATARY are: 1. not to exceed the limits of the mandate; - 2. to manage the business diligently; - 3. to render an account to the one mandating concerning the matter managed, and to restore to him whatever he perceived by force of the mandate, whether by title of gain or by title of gift; because he does not acquire for himself.

A mandate is extinguished: a) when the business committed is finished; b) by revocation of the mandate, which the one mandating can make at will; c) by renunciation of the mandatary notified at the due time; d) by natural or civil death, or interdiction, either of the one mandating or of the mandatary; but in Germany, only by the death of the mandatary.⁰²

1091. • II. Management of an affair is a certain quasi-contract by which someone undertakes the useful management of the affair of an absent person, without an express or tacit mandate, but from his reasonably presumed commission. It is a presumed mandate.⁰³

1. The manager of the affair IS HELD to administer diligently the matter of another until the owner has provided; to repair damages inflicted from his own fault. Yet in many circumstances the obligation of compensating damages can be tempered, especially when these proceed from the unskillfulness of a benevolent manager, in defect of a more skilled one. - More probably, he has a right to a fitting wage; otherwise few would be found who would wish to manage the affairs of absent persons. Cf. Ami du Cl., 1912, p. 927.

2. The absent person whose business is managed well IS HELD to observe agreements duly made by the manager, and to repay to him expenses and damages arising from such management, even if, notwithstanding the good management, the matter had an evil success.⁰⁴ See the things said above n. 885.

1092. • Deposit is a contract by which a movable thing is handed over to be kept, so that it may be restored whole. - He who deposits the thing is called the one depositing or depositor; but he with whom it is deposited is the depositary.⁰⁵

It is a real contract, which is perfected only by the handing over of the thing. It is, by its nature, gratuitous; but if a price is sanctioned for the keeping of the thing, the rules of deposit nevertheless have force.

Deposit is TWOFOLD: 1. voluntary, which is perfected by the spontaneous will of the contracting parties; and this can be express or tacit; - 2. necessary, called in ancient Law "miserable," which is made when some necessity urges, for example in the case of shipwreck, fire, etc. In modern Law, things deposited with innkeepers and drivers are considered as a necessary deposit.⁰⁶

1093. PRINCIPLES. I. The depositary is held to keep the thing deposited, and to restore it at the judgment of the one depositing. Thus all Laws.

1. He is held to keep the thing diligently;⁰⁷ indeed, he is held to special diligence if he promised it, or if he spontaneously offered himself, or if he sought a wage for the care of the thing, or if he accepted the thing solely for his own benefit, or finally if an express stipulation intervened concerning avoiding any fault whatever. His carelessness induces the obligation of restitution (cf. n. 920). - The depositary cannot watch what sort of thing has been deposited when he accepted it enclosed in a chest or sealed.⁰⁸ Similarly, he cannot without sin use the thing deposited, without at least the presumed consent of the owner; yet the sin will not be grave unless there is grave damage of the one depositing or danger of damage. But if he negotiates with the thing deposited, for example a pastor with the money of confraternities, the fruits belong to the negotiator, unless it has been otherwise established (Ami du Cl., 1910, p. 111; Lehmkuhl, Cas. consc., I, n. 854).

2. He is held to restore the deposit immediately to the one asking for it; and indeed with the fruits perceived from it; otherwise he would retain another's thing. Except unless he certainly knows that the thing is stolen, or unless he would have a certain cause of compensation, or unless he prudently fears lest the owner is going to abuse it (III, 753). Cf. the things said n. 1020.

1094. • II. The one depositing is held to preserve the depositary unharmed. For the axiom bears: "His own office ought to be damaging to no one." Hence, he must warn the depositary of a vice of the thing from which damage could arise to him, and repair all necessary or useful expenses made for keeping the thing (Porpora, tr. I, n. 529).

Let it be noted FROM NEW LAW:⁰⁹ 1. Deposit regularly cannot be made except by the owner of the thing deposited, capable of contracting; or by his express or tacit consent. - 2. Proof of deposit must be made in writing if the thing exceeds the value determined by law, unless it is a question of necessary deposit. - 3. Innkeepers are held concerning the theft or detriment of things deposited, whether the theft or detriment is done by servants or by strangers; but not if it is done with arms or by greater force. But see the things said n. 988.

1095. • II. Sequestration is a species of deposit by which a disputed thing is handed over to another third person to be kept, so that afterwards it may be returned to him to whom it has been adjudged by the judge or by arbitration. It is conventional when it is made by the mutual agreement of the contestants; judicial when it is decreed by the sentence of a judge.

Sequestration is governed by the same principles as deposit. But its object can be not only a movable thing, but also an immovable. It is not dissolved except by the sentence of a judge or by the mutual consent of the parties (Austrian Code, 968).

875. Definition. - The contract of donation, or of gift-giving, is an agreement by which someone gratuitously grants to another, accepting it, the dominion of his own thing or of his own right. - Whence for the contract of donation a promise of giving is not sufficient, but actual giving is altogether required, and that gratuitous, i.e. a giving which, without debt on the part of the giver and without burden of repayment on the part of the receiver, is voluntarily granted from liberality; indeed in such a way that the giving, insofar as it recedes from liberality, so far also falls short of the perfection and notion of donation.

876. Division. - It is divided 1° into strictly so called or merely gratuitous, and remunerative or antidoral. The former is that which is made with every obligation whatever, both of justice and of gratitude, altogether excluded on the part of the giver, and therefore is wholly founded in his liberality. The latter is that which is made from some obligation, not indeed of justice, but of gratitude, namely for remunerating some benefit received from the donee. - Therefore each donation agrees in this, that it is not owed from justice, and consequently cannot be rigorously or legally exacted. And in such a broader sense each donation can be called gratuitous. But the difference of each is in this, that a donation strictly so called or merely gratuitous excludes every debt, even of gratitude, and therefore proceeds from mere liberality; while a remunerative donation is founded in a debt of gratitude, and therefore falls short of mere liberality. Whence according to the opinion of many, a remunerative donation, properly speaking, is not a donation. Hence it will be permitted more probably to infer:

a) That, when in law, whether Ecclesiastical or our civil law, donation simply is prohibited, as for example the donation of Religious is prohibited in Ecclesiastical Law and the donation of spouses between themselves in civil law, a remunerative donation is not on that account judged prohibited of itself. For a prohibition of this kind, as odious, according to common rules of interpretation, must be restricted to donation properly and strictly such; but merely gratuitous donation alone is properly and strictly donation, not remunerative donation.

b) That, when in Law some certain formality is prescribed for donation simply, the same formality does not on that account of itself seem prescribed for a remunerative donation; for such a prescription, like the prohibition mentioned above, is odious and consequently must be restricted to donation strictly so called, unless the contrary is sufficiently expressed by the legislator. Yet it will be safer to observe the formalities, since the sentence of the judge very often depends on the mode in which he considers the case in fact.

Finally, as to remunerative donations it deserves to be noted with Cardinal de Lugo² that "there can also be a remunerative donation when you give nothing to him from whom you received the benefit, but with regard to him you give to others who pertain to him."

877. • It is divided 2° into pure and non-pure or qualified. Pure is that which is made without any limitation; non-pure or qualified is that to which some limitation accedes, namely some condition (n. 869, 870) or some mode (n. 868), by which word the imposition of some burden is usually understood, for example, of paying certain debts of the donor.

A non-pure donation is for the most part called mixed, i.e. partly gratuitous and partly non-gratuitous, and in truth it is such whenever it is made under a mode or under a condition burdensome to the donee.

Yet it must carefully be noted here that the burdens imposed on the donee cannot be so great that they compensate his advantages; because then every species of donation would vanish, as is clear from what was said above under n. 875; but those burdens ought to be so moderate that, notwithstanding them, the giving itself can morally be called, at least from the beginning, gratuitous and profitable to the donee.

878. • It is divided 3° into perfect, which is also called real in English and our Law, and imperfect, which is also verbal. Perfect is called a donation joined with the handing over of the thing donated, which is as it were the consummation of the donation; imperfect is called a donation not joined with the handing over of the thing donated, but only with the obligation of handing it over in its own time. Yet here for practice it must be noted that an imperfect donation often seems to be present, when it is not really present. Namely it happens more frequently that he who, the words used being considered, at first sight seems to donate, in reality simply wishes only to promise. But if he wishes only to promise, there will indeed be a contract of promise, regularly obligating from fidelity to donate; but not a contract of donation, not even of an imperfect donation.

879. • Donation is divided 4° into donation inter vivos and donation in prospect of death; this division is very celebrated in Jurisprudence, and therefore claims great attention for itself.

A donation inter vivos is that by which someone so donates that he wills the thing donated, while he is living, to become irrevocably the property of the donee. The word irrevocably imports that the donor cannot seek back the thing donated at his own pleasure, but only in cases expressed by law.

A donation in prospect of death is that by which someone, with regard to his own death, so donates that he wills the thing donated, while he is living, to be able to be sought back at pleasure, and therefore to become irrevocably the property of the donee only when he has died.

Whence donation inter vivos and donation in prospect of death agree in this, that each is a contract, as defined above in n. 828, namely an agreement by which someone gratuitously grants to another, accepting it, the dominion of his own thing or of his own right; but they chiefly and essentially differ in this, that donation inter vivos of itself is irrevocable, while donation in prospect of death can of itself be revoked by the donor at pleasure up to his death. Therefore, in order to discern in practice whether some gratuitous giving, made by the donor and accepted by the donee, is inter vivos or in prospect of death, it matters not so much to attend whether the donation was made in the time of illness or while the donor's death was imminent (for it is certain that a donation inter vivos can be made even by a dying man); but it suffices to attend carefully whether the donation was made irrevocably, or revocably up to the donor's death. In the first hypothesis there will be a donation inter vivos, even if a dying man donates; but in the other there will be a donation in prospect of death, even if a healthy man were to donate. - For a clearer understanding of these things let the following questions be set down.

880. Questions. - Query 1° What sort of donation is present in this case: Titius, dangerously sick, gives to Caius, consenting and accepting, a certain sum of money on this law, that it ought to be returned to himself if he seeks it back before his death; but he gratuitously cedes it to Caius if he has not sought it back before death?

Resp. Without doubt it is a donation in prospect of death, since it is revocable at the pleasure of the donor up to his death.

Query 2° What sort of donation is present in this other case: Peter, laboring under a grave illness, gives to John, consenting and accepting, $100, but with a resolutory condition added, that the thing donated is to be returned to himself if by chance he recovers?

Resp. It seems it must be resolved that such a donation is inter vivos, because it is truly made irrevocably (i.e. not revocably at the will of the donor), and a resolutory condition is simply added, whose fulfillment (namely recovery) does not depend on the will of the donor.

Query 3° In what chiefly do a donation IN PROSPECT OF DEATH and a LEGACY, or donation through testament, agree, and in what do they differ?

Resp. They agree in this, that each is revocable at the pleasure of the giver up to his death; but they differ especially in this, that a donation in prospect of death, since it is a contract, requires that it be accepted by the donee before the death of the donor; while on the contrary donation through testament is neither properly a contract, nor requires any acceptance before the death of the testator.

These things having been premised, now we shall strive to explain individually and with attention to our civil Law the several requisites of a valid donation, which are six in number, namely: a) that the donor be capable of donating, b) that the donee be capable of acquiring, c) that the thing be apt matter of donation, d) that the donation be made in due form, e) that it be accepted in the due mode, and f) that it be of itself irrevocable. Whence:

881. • Anyone can donate who is incapable of it neither in fact nor in law.

But he is incapable in fact who, when the donation is perfected, either is not sound in mind, or does not act with sufficient liberty.

Incapable in law are:

1. For donation inter vivos: a) minors not emancipated according to what was said in n. 837, unless it is a question of things of small moment. b) Wives according to what was said in n. 840. c) Spouses between themselves, unless either the donation is moderate, or certain solemnities are employed, and the rights of creditors are saved. Thus a husband can hand over his goods to some persons for the wife's use, for an equitable cause. In what manner a wife can donate to her husband was said in n. 840, 1°. d) Interdicted persons according to what was said in n. 843. e) He who is not solvent, if he donates in fraud of creditors.

2. For donations in prospect of death, all and only those who cannot make testament, concerning whom below, where Testaments are treated, n. 911.

882. Questions. - Query 1° Do the aforesaid dispositions of our law obligate in conscience?

Resp. Excepting the case of one donating in fraud of creditors, negatively, at least in practice and gravely, whenever those incapable by donating do not notably injure anyone and unjustly damage him. Yet Moralists rightly warn that wives donating without the consent of their husbands regularly furnish grave scandal to their husbands. Whence a confessor must most carefully beware lest he indulge too much wives who are liberal beyond measure, but rather should exhort them that, as much as can be done with justice, charity, and the good and honor of the family saved, they accommodate themselves to the will of their husbands.

Query 2° Does civil law concerning donations also touch FOR THE INTERNAL FORUM donations TO PIOUS CAUSES?

Resp. A donation to pious causes is spiritual matter and therefore subject to the jurisdiction of the Church; hence in practice the following rule holds: In pious dispositions for the internal forum Canon Law is to be observed, in which regularly in this matter account is had only of natural and divine right, as La Croix notes.¹

Yet here in particular it is necessary to note: from the Council of Trent,² Novices in a Religious Order are incapable of donating their goods by donation inter vivos, whether to the monastery or to others, unless with the permission of the Bishop or his Vicar within the 2 months immediately before solemn profession; indeed even their donations made within that time with due permission are not otherwise understood to obtain their effect unless profession follows. - The Holy Synod wisely established this, lest perhaps a Novice, once despoiled of his goods, emit profession unwillingly.

Say the same, according to the opinion which is called truer and common by St. Alphonsus,³ concerning those who, in bad faith, receive from one who is not solvent, with damage to creditors; and these are bound to compensation of the damage which thence comes to the creditors. For just as the one donating in the case injures justice by rendering himself unequal to paying his debts, so also the donee injures it, who positively cooperates in the unjust action of the donor with the prejudice of the creditors. For donation does not consist in the will alone of the donor, but also in the will of the receiver, without which the donation cannot be perfected; and therefore, although the donee is not the motive cause, nevertheless in reality he is a truly influent and efficacious cause of the alienation of the thing to the damage of creditors.

But if donations of this kind were performed altogether in good faith, and did not fall under the dispositions of the law concerning cession of goods, then I would not wish to blame one who would retain what had thus been received; since civil law in favor of commerce indulges many things to those acting in good faith.

883. • Those are capable of acquiring from donation who are not constituted incapable by law of receiving donations. Nor are infants, the insane, or others lacking the use of reason to be held incapable, since they are capable of dominion, and can accept or occupy things through others, for example through parents, guardians, etc., according to what was said in n. 600, 3°. Hence the following cannot acquire from donation:

a) All receiving from those who, whether in fact or in law, are incapable of donating, n. 881. But those receiving from those who are incapable in fact do not acquire from donation in either forum. The others are to be treated for the internal forum according to what was said in n. 882, Query 1° and 2°.

b) Those who were not conceived at the time of donation, or, as to testament, at the time of the death of the testator.¹ Concerning the exception of substitution it will be treated below (n. 898).

c) Communities, unless they have been endowed by civil authority with the right of acquiring, and only to the extent to which they have been endowed with it. But Colleges (corporations) cannot acquire by testament, unless and insofar as this is specially granted to them in the Charter by which they are constituted.² (n. 617, 2°). The things which we say here concerning communities are not to be attended to for the internal forum if it is a question of communities which are subject to the Church; for neither can laws of amortization, such as are those by force of which those communities are incapable of acquiring unless they are endowed with that right by the civil authority, prevail over the rights of the Church. See what is to be said below where informal testament to pious causes is treated, and what was said in n. 882, Query 2°.

d) In Louisiana "doctors of physic or surgeons, who have professionally attended a person during the sickness of which he died, cannot receive any benefit from donations inter vivos or mortis causa made in their favor by the sick person during that sickness. To this, however, there are the following exceptions:

1. Remunerative dispositions made on a particular account, regard being had to the means of the disposer and to the services rendered.

2. Universal dispositions in case of consanguinity.

The same rules are observed with regard to ministers of religious worship."¹

884. • Generally speaking, all goods can be donated, i.e. things or rights of the donor.

It is said: generally speaking; for in certain hypotheses they are not valid, or at least not licit, matter of donation; and thus:

1. In the hypothesis that the donor has children, that which is required for their necessary sustenance will be illicit matter of donation by natural right.

2. In the hypothesis that the donor is a married man, the dowry of the wife will not be apt matter of donation. Cf. n. 605.

3. In the hypothesis that the donor is unequal to paying his debts, none of his goods will be apt matter of donation, since no one, as they say, can be liberal unless he has been freed. Cf. n. 881, 1), e).

885. • 1. For donation inter vivos a perfect or real donation is required and suffices; but an imperfect or verbal donation does not suffice.² Cf. n. 878.

2. For donation in prospect of death there is required either a solemn contract (n. 828, 3°) or writing, or the handing over of the thing, or a trustworthy document of this handing over.³

Query. What must be established for the internal forum concerning the value of an informal donation?

Resp. Distinguish. Either it is a question of a donation to pious causes, and it is valid for the internal forum (cf. n. 882, q. 2°), or of a donation to profane causes, and it seems that the sentence of the judge is required for it to be invalidated for the internal forum; for it scarcely seems able to be supposed that the law wished to impose so hard a burden on subjects, that they should be bound in conscience, of their own accord, and without any intervention of the judge, to renounce favors offered to themselves, and this only on account of defect of some formality. Whence for practice, and unless a verbal or imperfect donation is a promise rather than a true donation (n. 878), we think it must be established that donees, with every fraud excluded, can licitly acquire from an informal donation and retain what has been accepted, until those whose interest it is juridically seek the invalidation of such a donation.

886. Preliminary Notes. - From the very definition of the contract of donation it is manifest that, for its essence, it is altogether required that the donation be accepted; indeed in such a way that before acceptance it produces of itself no obligation, and consequently can be revoked by the donor at pleasure. What has not been accepted is not judged donated. Thus, St. Alphonsus testifying,¹ the common opinion, founded especially on this argument: that no one can transfer his right or dominion into another unless the other wills to accept it and in fact accepts it. For although anyone by his will alone can lose his own right or dominion, nevertheless he cannot by his will alone effect that it pass into another, since for this the consent of the other is necessarily required, i.e. the union of the will on the part of the one accepting with the will on the part of the one transferring.

887. • These things having been noted beforehand concerning the necessity of acceptance for a valid donation, the legitimate requisites of acceptance must now be set forth.

The 1st is, that the donation be accepted by the donee himself or by a third party who legitimately conducts his place. The 2nd, that acceptance be made while the donor is living.

888. Questions. - Query 1° What is required that a donation in favor of an absent person be valid?

Resp. Donation, just as also promise, made to an absent person through letters written expressly to him, or through a messenger or procurator, ought to be accepted before the messenger or him who represents the donor, or through other letters sent to the donor on the part of the donee; otherwise it cannot be established that there is mutual consent of donor and donee into the same agreement.²

Query 2° What if the donor, a messenger having been sent, has revoked the donation?

Resp. 1° 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 all power of offering or handing over has been taken away from him.¹

Resp. 2° But if the revocation does not become known to the messenger before execution, then it must be distinguished: either he behaves 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 voided, because consent on the part of the donor is altogether lacking. If the latter, his acts are valid, and the donation can be validly accepted. For one mandating is bound to hold ratified that which, by force of the mandate, has been done in good faith in his name.

889. • Query 3° What must be held concerning the acceptance of donation TO PIOUS CAUSES?

Resp. Abstraction being made from merely civil dispositions, which do not touch the value of a pious donation for the internal forum, the proposed question must be solved with a distinction, namely:

Either it is a question of a donation which is made immediately to God and which therefore puts on the nature of a vow and is usually called from a vow; for example, I promise or donate to God this sum of money for an altar to be erected in a Church for the celebration of Mass;

Or it is a question of a donation which is made immediately to the Church itself or to a pious cause; for example, I donate this sum of money, not immediately to God Himself, but to the Religious Institute itself for the care of the sick.

If the first: the donation is valid of itself without any acceptance on the part of the Church or the pious cause, because then the donation, as was said, behaves in the manner of a vow, which is judged to be accepted at once by God Himself.

If the second: more probably, according to the opinion of several Authors, acceptance is necessary for the value of the donation; because then the donation behaves in the manner of a contract, which is not perfected without the consent of each party. Yet they add that this acceptance can validly be made in the name of the Church by any particular person whatever.

But if, concerning donations of this kind to pious causes, a doubt occurs about the intention of the donor, namely whether the one donating wished to donate immediately to God, or to the pious cause, in practice this rule, handed down by St. Alphonsus¹ from Lugo, is to be held: in such a doubt it must be presumed that the one donating had the intention of donating immediately to God, or the intention of vowing; because according to what commonly happens in pious causes the will of the donor is borne primarily into God, and from what commonly happens a solid presumption stands.

Moreover, where such are the circumstances of things that a place remains for obscurity, the Ordinary is to be consulted, to whom from the Council of Trent belongs a special care of pious dispositions.

890. • Query 4° Is a donation valid if the donor dies before acceptance?

Resp. Negatively, if he gave only a mandate of making a donation. But St. Alphonsus does not judge the opposite improbable.² Affirmatively, probably, if the donation has already been made, and the one donating before death sends a messenger or letter to manifest it.

Query 5° If the donee has died before acceptance, can his heir accept the donation?

Resp. More probably negatively, because the heir indeed succeeds to the real rights of the deceased, but not to personal rights, of which kind is the right of accepting a donation; unless perhaps he is the son of the donee, because then it would be presumed that such was the mind of the donor, as some admit, if not by strict right, at least from a certain equity.

Query 6° Does a sworn donation, but not accepted, obligate?

Resp. Negatively, because an oath follows the nature of the act; but a donation before acceptance is not firm. Therefore³ ...

891. • 1° Any donation inter vivos whatever can be revoked before acceptance.⁴ (e), p. 471.

2° A donation in prospect of death can be revoked a) if the donor repents; b) it is revoked ipso facto if the donor either donates the thing to another, or if he gave it with regard to some imminent danger from which he feared death, for example in grave illness or when battle was imminent, and escaped the danger; c) it is revoked by law itself if the donee dies before the donor.

3° A donation inter vivos perfected and accepted cannot be revoked by our law; but by natural right it is revocable if the conditions adjoined to the donation are not fulfilled, which, as is clear of itself, is valid concerning donation to pious causes. Yet here for practice it deserves to be noted that a pious donation which can truly and properly be called conditional occurs more rarely, although perhaps some burden to be fulfilled has been adjoined to it, say: the burden of celebrating certain Masses. The reason is: because a pious donation of itself and from its nature is usually made primarily and principally on account of the worship of God, the good of the Church, etc., indeed in such a way that the burden adjoined is only a secondary motive, on which the consent of the donor does not depend nor is limited. Whence a pious donation with a burden adjoined regularly will not be a donation under a condition, nor therefore can it be revoked by title of a condition not fulfilled; but ordinarily it will be only a donation under a simple mode, which does not render the pious donation revocable, although that mode ought to be observed from justice, as will be clear from the things now following. See n. 868.

892. • By donation under a mode is understood a donation made with the addition of some burden, to be fulfilled by the donee in its own time, without nevertheless that fulfillment being a sufficiently expressed and properly so-called condition. Now, it is certain that the donee, once such a donation has been accepted, is bound in conscience to observe the mode imposed, and that he is bound to restore proportionately if by his own fault he has not observed the mode.

But, the mode not having been observed, the donation is neither invalidated nor can it be revoked by the donor. Yet one must insist by remedies of law that it be observed.¹ See n. 868. (w) p. 476.

893. • By allective donation here is understood a donation made by the donor for this end, that the donee not indeed be obligated, but nevertheless be excited and enticed to furnish something, for example, a donation made to a girl for eliciting her consent into illicit intercourse. - As regards the value of such a donation, see what was said in n. 834, q. 7°.

894. • By donation on account of a false cause is understood a donation made on account of a cause, whether present or past, which is thought certainly to be present, although in reality it is not present; for example, a donation made to Peter as to a poor man, while he is not poor, or a donation made to Peter as to a poor and upright man, while in reality he is indeed poor, but by no means upright. - As to the value of such a donation, it will be permitted to establish these things:

a) If the principal cause is false, the donation of itself is invalid, and the donee ought to restore the thing donated, unless perhaps it can reasonably be presumed that the donor after the fact is no longer unwilling that the donated things be retained. And thus, in the first example adduced, a donation made to Peter as to a poor man, so that poverty is the principal cause, when poverty is lacking, of itself falls, and therefore the things accepted by Peter must be restored to the giver or at least to others truly poor, unless it were permitted to presume otherwise concerning the will of the donor after the fact (n. 736, q. 5°).

b) If the secondary cause is false, the donation of itself does not seem invalid, but it can be revoked by the donor; but the donee himself, if he was the cause of the error, is bound to disclose the error, unless the donor is so affected that he can be judged not to wish to revoke, even if he knew the error. And thus, in the second example adduced, a donation made to Peter, principally as to a poor man and secondarily as to an upright man, poverty existing but uprightness lacking, of itself does not seem void, but only revocable; but Peter, if he was the cause of the error, namely by pretending that he was upright, while he is by no means upright, ought to disclose the error, unless it is permitted to presume otherwise concerning the will of the donor, as ordinarily happens in the matter of alms, in which poverty alone, but not uprightness, is usually considered as cause or condition (n. 736, q. 5°).

From what has been said it is clear that, for resolving cases of this kind of donation on account of a false cause in practice, one must carefully notice: a) what was the expressed intention of the donor in making the donation, and b) what is, or at least what is rightly presumed to be, his will after the fact. Cf. St. Alphonsus.¹

Note. - Here it would have been necessary to treat only that hereditary succession which exists from TESTAMENT, since this alone can be referred to donation; but concerning that which is called LEGAL or FROM INTESTACY, it would have been necessary to treat in the Treatise ON RIGHT AND JUSTICE in that place where discourse is had concerning the various modes of acquiring dominion. But, since one is intimately connected with the other, and many things are common to each, it has pleased us to treat each in this place.

895. Notion. - Hereditary succession (hereditary succession) is a mode of acquiring, either from the disposition of law, or from the last will of the deceased (legitimate testament), the dominion of the goods and rights which the deceased had at the time of death. - There is no inheritance of a living man.

The very universality of goods and rights which are acquired through hereditary succession is called inheritance; the part of individual heirs: portion.

Division. - From the adduced description of hereditary succession there spontaneously flows its very well-known division into legal and testamentary.

Legal succession, which is also called succession from intestacy (succession by operation of law, or ab intestato), is that by which the goods and rights of the deceased are acquired from the disposition of law, without the cause of testament.

Testamentary succession (by testament or will) is that by which the goods and rights of the deceased are acquired from his last will, or legitimate testament.

896. Notion. - By the name of heirs (heirs), in our law, come those who from law or testament succeed to the goods and rights of the deceased by universal title, i.e. who from law or testament acquire either the whole inheritance or at least some quota of the inheritance, say a half, a third part. But those who from testament succeed to the goods and rights of the deceased by particular title, i.e. who from testament acquire only some determined things, for example, a house, a field, all movable goods, all immovable goods, the usufruct of all or certain goods; these are not called heirs, but legatees (legatees). -

897. Division. - Heirs are usually distinguished:

a) Into legal heirs or heirs from intestacy (heirs by operation of law, or at law, or right heirs, or lawful heirs or by descent or ab intestato, or simply heirs), who are called to the inheritance from law; and testamentary or instituted heirs (heirs by will), who are called to the inheritance from the last will of the deceased himself, declared through a legitimate testament.

b) Into necessary heirs, who cannot be passed over by the testator as to a certain part of the goods, determined by Law (which they call the legitimate portion or reserved portion); and voluntary heirs, who can be passed over or instituted by the testator at pleasure.

These things having been premised, now we shall strive to present summarily those things which ought not to be unknown to Moral Theologians concerning hereditary succession, by discussing:

In the first place, hereditary succession in general, i.e. those dispositions of Law which are common to every succession, whether legal or testamentary; yet it must always be carefully distinguished between heir and legatee; for the things which will be said concerning heirs cannot of themselves be applied to legatees.

In the second place, legal succession, i.e. those dispositions of Law which are proper to legal heirs.

In the third place, testamentary succession, i.e. those dispositions of Law which pertain to instituted heirs and to legatees.

898. What is generally required so that someone can be an heir. - It is required 1° That he be at least conceived at that moment at which he dies whose heir or legatee he is. Yet by substitution even one not conceived can be called to an inheritance or legacy. Thus, for example, a disposition is valid by which someone leaves his goods or some good of his to someone with the burden that someone from the descendants of this one inherit them.

2° That he not be incapable by law.

899. Rights of heirs. - 1° They acquire dominion of all goods, rights, and actions of the deceased by the very moment in which the latter dies, and without its being necessary that they declare that they wish to acquire that dominion, and even if they are ignorant that they are heirs. Yet this acquisition of dominion is not to be confounded a) with actual possession of the same, which is procured through the executor or administrator of the inheritance; b) with acceptance of the inheritance; for it can be repudiated.

2° They have the right to seek the inheritance (i.e. to recover the goods and rights of the deceased) from all who detain it or part of it.

900. On the adition and repudiation of inheritance. - According to the axiom of law: "No one is an heir unless he wills it." Therefore no one is bound to enter upon or accept an inheritance. Among us, with common law considered,¹ no act is required by which someone repudiates an inheritance; it suffices that he neither seek nor enter upon the inheritance within the time established for the prescription of his right; and when this time has elapsed he falls from his right, even if he did not know that he was an heir.²

901. What pertains to the inheritance. - To the inheritance pertain:

1. As burdens: a) debts and real burdens of the deceased; expenses of burial and funerals; and also those which are joined with the execution of the testament or administration of the inheritance. b) Legacies.

2. As goods: a) goods and rights of the deceased; b) all things which are subjected to collation. But collation is the act by which one of the heirs brings back to the sum of goods which the testator left to be divided among the heirs those goods which he received from the deceased by donation inter vivos, so that they may be divided equally among all. "If therefore a father handed over to a daughter, on the occasion of marriage, fields, or houses, or a great abundance of money," or a dowry sufficiently notable so that she might enter a monastery; "or if he conferred gifts of this kind on a son, in order to provide for him; the children who remained with him, increased by no gift, can require that account be had of them in dividing the inheritance. Those who received those things from the father will indeed be able, by renouncing every right, to abstain from entering upon the division; but if they wish to claim anything beyond for themselves, only that will be owed which must be added so that the portion of all may be equal."¹

Yet from collation are exempted a) those things which the deceased gave, by expressly exempting the heir from collation, or by title of special right (by benefit); b) expenses of nourishment, education, nuptials (wedding), learning an art or science, and similar things, unless the contrary intention of the deceased is clearly established; c) manual donations, unless they are of greater moment; d) fruits of things to be brought back, which the donee perceived before the death of the testator up to the day on which the succession was opened; e) money used for redeeming a son from military service; for since this has place among us only in time of war, and it would be hard for a son to be exposed to the dangers of war before the other co-heirs, as if at his own expense, the father must be presumed, unless the contrary is clearly established, to have exempted this money from collation; f) those things which the son dishonorably spent from paternal goods, for example in games, drinking-bouts, etc., if he did not spend more than the father would have been content that he expend on honorable recreations. L. IV. 954-959.

For Louisiana see, if you wish, Civil Code of Louisiana.²

902. Original force of hereditary succession. - Much agitated among Authors is the question concerning the original force of hereditary succession; namely whether succession, whether from intestacy or from testament, repeats its force of transferring dominion originally from natural right; or rather from positive human law, so that, this law being excluded, the goods and rights of the deceased would of themselves become things of no one. - It suffices for us here to explain in a few words what seems more probably to be held about this matter.

A) As to succession from intestacy. - With attention both to the nature of property, and to the character of parental society and family, and also to the exigency of public order, we judge that it must altogether be resolved that this succession borrows its original force from the law of nature, especially indeed where it is a question of succession by which the nearest blood-relatives succeed to deceased blood-relatives, say, by which children succeed to deceased parents.¹ - Yet, since the law of nature directs succession from intestacy only in general and as it were indefinitely, and consequently leaves many things in this matter to be more specified and determined by positive law; hence you will also rightly say: succession from intestacy repeats its force of transferring dominion principally from the law of nature, and secondarily from positive human law, as that by which the natural force of succession seems to have become better ordered and much more valid.

B) As to succession from testament. - We defend with Grotius,² whose opinion is called by many the more common and more probable, that any man, not legitimately impeded, can by natural right validly dispose of his goods through testament, and consequently also that testamentary succession borrows its force of transferring dominion principally from the law of nature, and not from human law alone; although nevertheless it belongs again to the human legislator in this matter to order those things which are necessary so that affairs may be carried out in the due mode and order. "Although," says Grotius in the place cited, "a testament, like other acts, can receive a certain form from civil right; yet its very substance is cognate to dominion, and, this being given, is of natural right. For I can alienate my thing not only in a pure manner, but also under a condition; and not only irrevocably, but also revocably, and also with possession and the fullest right of enjoying retained meanwhile. But an alienation for the event of death, revocable before it, with the right of possessing and enjoying retained meanwhile, is a testament.... By this right Abraham, if he had died without children, would have left his things to Eliezer, as the place of Genesis indicates.³ But that in some places it is not conceded to foreigners to make a testament is not from the law of nations; but from the proper law of that state, and, unless I am deceived, coming from that age in which foreigners were held almost as enemies: and thus among the more civilized peoples it has deservedly fallen out of use."

903. • Indeed it is necessary to confess that the proposed opinion concerning the natural force of testamentary disposition is not admitted by some Theologians and Jurists, who on the contrary contend that a testament, or last will, does not have the force and efficacy of transferring dominion from natural law, but only from positive human law; and they strive to prove their assertion by the following argument, sufficiently celebrated today:

For the translation of dominion, by natural right, it is required that the owner will and be able to transfer his thing into another;

But a testament, from its character, excludes this requisite, since the testator does not will to transfer his thing into another before death, and after death he is not able;

Therefore a testament, by natural right, is inept for the translation of dominion; and therefore if any force is to be ascribed to a testament, it must be repeated from positive law alone.

But in truth these Authors seem to effect nothing by aphorisms of this kind, since they do not at all attend to the nature of donation under a suspensive condition, concerning which Grotius speaks in the place cited; for when this is attended to, it would rather be necessary to argue thus in favor of our opinion:

For the translation of dominion, by natural right, it is required that the owner be able and willing to transfer his thing into another, either absolutely and actually, or under a condition;

But a testament, from its character, includes this requisite, since the testator at that very moment at which he makes the testament is able to transfer his thing into another and in fact also wills it, namely: under the suspensive condition of death.

Therefore a testament by natural right is not inept for the translation of dominion.

But the aforesaid Authors insist by producing this other argument:

At least, for the translation of dominion, by natural right, it is required that the will of the one accepting be united with the will of the one transferring;

But, in the case of testament, the will of the one accepting is not united with the will of the one transferring, who, at the time of acceptance, is dead;

Therefore, in the case of testament, by natural right there is no translation of dominion.

But this argumentation also seems very weak, as not distinguishing between actual and virtual union of wills. For suppose that in the case of testament an actual union of wills is not given; certainly, nevertheless, a virtual union is given, since the will of the one transferring, in the testament itself, according to common estimation (which I think is founded in faith in the immortality of the soul) is judged to persevere at least virtually. But it can by no means be proved that such a virtual union, in the case of testament, does not suffice by natural right; indeed, that this union in reality suffices is sufficiently established from the fact, most worthy of note here, that the usage of Nations and the very natural inclination of all men have always judged the last will of the deceased to be sacred and to be pursued with special honor.

Moreover, whatever may be the value of the opinion impugned by us, this still deserves to be noted at least for history:

All supporters of Communism have eagerly embraced the doctrine of deriving the force of succession from human law alone, as favoring their system more. For once this doctrine has been admitted, they seem to demand for themselves by so much greater right that the Civil Power at last take away from succession the force and efficacy which it previously attributed to it, and thus finally at some point recognize and promote the desired community of all goods. But what, I ask, would be the voice of all Theologians, as many as there are, if the civil power were to satisfy this wish of the Communists? Would not all with one mouth declare that an indulgence of this kind of the civil power is utterly to be condemned and injurious to citizens? But by what reason could that indulgence be called injurious, unless it is admitted that the force of succession is principally derived from the law of nature!

Thus acutely the distinguished Van Egeren, from whose illustrious Notes I have copied almost word for word these and many other things concerning Donations, Hereditary Succession, and Buying-Selling.

904. • Who are called to the inheritance FROM INTESTACY, and what part of the inheritance individual heirs obtain. "In the United States... each State has established a law of descent for itself.... There is no entire, though there is an essential, uniformity on this subject.... It will be sufficient to state those leading principles... which are of the most general application."¹

The debts of the intestate having been paid, and the dowry of the wife (see n. 605), if she survives, subtracted, the rest of the inheritance passes to the heirs according to the following rules.

905. • I. Rule. The inheritance "shall descend to" the "lawful descendants in the direct line of lineal descent; and if there be but one person, then to him or her alone, and if more than one person, and all of equal degree of consanguinity to the ancestor, then the inheritance shall descend to the several persons as tenants in equal parts, however remote from the intestate the common degree of consanguinity may be."²

II. Rule. "If a person... leaves lawful issue of different degrees of consanguinity, the inheritance shall descend to the children and grandchildren of the ancestor, if any be living, and to the issue of such children or grandchildren as shall be dead, and so on to the remotest degree as tenants in common. But such grandchildren and their descendants shall inherit only such share as their parents respectively would have inherited if living."³

III. Rule. "If the owner of lands dies without lawful descendants, leaving parents, the inheritance shall ascend to them, either first to the father and next to the mother, or jointly, under certain qualifications" for which you may consult Kent.⁴

IV. Rule. "If the intestate dies without issue or parents, the estate goes to his brothers and sisters, and their representatives. If there be several such relatives, and all of equal degree of consanguinity to the intestate, the inheritance descends to them in equal parts, however remote from the intestate the common degree of consanguinity may be. If they all be brothers and sisters, or nephews and nieces, they inherit equally; but, if some be dead leaving issue, and others living, then those who are living take the share they would have taken if all had been living, and the descendants of those who are dead inherit only the share which their parents would have received if living. The rule applies to other direct lineal descendants of brothers and sisters, and the taking per capita when they stand in equal degree, and taking per stirpes when they stand in different degrees of consanguinity to the common ancestor, prevails as to collaterals, to the remotest degree, equally as in the descent to lineal heirs."¹

V. Rule. "In default of lineal descendants and parents, and brothers and sisters, and their descendants, the inheritance ascends to the grandparents of the intestate, or to the survivor of them."²

VI. Rule. "In default of lineal descendants, and parents, and brothers and sisters, and their descendants, and grandparents, the inheritance goes to the brothers and sisters equally, of both the parents of the intestate, and their descendants. If all stand in equal degree of consanguinity to the intestate, they take per capita; and if in unequal degrees, they take per stirpes.... The rule is controlled in... some... States by the following rule."³

VII. Rule. "If the inheritance came to the intestate on the part of his father, then the brothers and sisters of the father, and their descendants, shall have preference, and, in default of them, the estate shall descend to the brothers and sisters of the mother, and their descendants. But if the inheritance came to the intestate on the part of his mother, then her brothers and sisters, and their descendants, have the preference; and, in default of them, the brothers and sisters on the father's side, and their descendants, take."⁴

VIII. Rule. "On failure of heirs, under the preceding rules, the inheritance descends to the remaining next of kin to the intestate."⁵

IX. Rule. "If there be no remaining next of kin, or if none lay claim to it within the time required in every State for the prescription of inheritances, the State is heir."

X. Rule. "The next of kin is" generally "determined by the rule of the Civil," and not of the Canon "law."¹ See Treatise on Marriage, concerning the impediment of consanguinity, n. 1582.

XI. Rule. "In a majority of the States the descent of real and personal property is to the same persons and in the same proportions."²

906. • Who are excluded from the inheritance FROM INTESTACY.

1° He who, at the time when the intestate lays down life, has not yet been conceived; or (which nevertheless is not valid in all States), although he was conceived at that time, afterward is not born alive.

2° Aliens as to immovables are altogether excluded in certain States; in others, as citizens, they can be heirs; finally, in others, they obtain the rights of heirs if by oath they have proved an intention of always remaining in the Federated States, or inhabit them at that moment at which the intestate dies.

3° Illegitimates on the part of the father, but not on the part of the mother, nor toward one another.

But who are to be held among us as illegitimate is generally to be defined not from Common Law, but from the laws of individual States. See Kent.³

907. Questions. - Query 1° Are parents bound in conscience to recognize, or, on the occasion of nuptials, to legitimate their illegitimate offspring, so that thus they procure for the same the favors conceded by civil law?

Resp. Although parents can remove the injury caused to their illegitimate offspring by extra-matrimonial procreation only by recognition and legitimation of the same, and therefore, if a grave impediment does not stand in the way, they are to be carefully induced to this recognition and legitimation; nevertheless they do not seem able to be obligated to this under grave sin, provided they otherwise satisfy their natural office, by which they owe their offspring at least the necessities for the sustenance of life, for Christian education, and for a decent state.

Query 2° Do those about to marry act UNJUSTLY who on the occasion of marriage (as not rarely happens) falsely recognize and legitimate illegitimate offspring, which is not the offspring of both, but only of one or the other?

Resp. With the warning premised that here the doubt is moved solely concerning strictly so-called injustice, at least inchoative, toward future heirs, it must be said: concerning strict justice toward future heirs, in the proposed case, at least in those States where children are not necessary heirs, it is not certainly established; and therefore such persons about to marry are not to be compelled to restitution.

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.

DONATION also is as it were a contract, therefore we treat of it after promise; but both are called as it were contracts, because they proceed from mere liberality, and place the obligation on one side only, in whose power it is to annul it, until the thing donated, or promised, passes into the power of the other. But lest there be too great license in giving, or rather in throwing away one's goods, the Laws determine the manners and the persons in which donations are valid.

The action of GIVING is called donation, as the Jurisconsult says leg. senatus. §. Donatio, ff. de donatione causa mortis. Donation is therefore a free gift, and a giving, as D. Bonaventure teaches in the places adduced, at the beginning of disput. 3. and on ad 7. Lucae in these words: Cum non haberent, unde redderent, donavit utrique.

Donation, however, is made in TWO ways. First, by transferring the right by words, saying: I give you my horse, which I have at home. And although this naturally suffices for transferring dominion from the nature of the thing, nevertheless positive law requires the other manner of donation, by the actual handing over of the thing, ex Leg. Traditionibus, Cod. de Pactis, ibi: Traditionibus dominia rerum, non nudis pactis transferuntur. See Bonacina de contr. disp. 3. quaest. 12. part. 1.

That donation is a NAMED contract, the Doctors teach commonly, cited by Fagundez lib. 4. de contract. cap. 1. num. 6.

Donation is DIVIDED, however, into Absolute and Conditional, under which is included donation for a day.

A CONDITIONAL donation is a true donation, where the condition is honest, and does not destroy the substance of the donation, as I said de contractibus in genere, cum D. Bonavent. in 4. dist. 28. quaest. 3. and the Gloss has it in leg. 1. in principio, ff. de donationibus, Curtius the younger in leg. 3. num. 73. ff. si certum petat. Iulius Clarus §. Donatio, quaest. 2. Fagundez lib. 4. cap. 2.

A donation FOR a day certainly to come, but uncertain when it will come, is valid, for instance if I give you my house for the day of my death, which donation induces an obligation to hand over the thing, but not before that day leg. omnis stipulatio, versu in diem, ff. de verborum obligatione, et leg. cedere diem, ff. de verb. significat. et leg. certi condictio in principio, and from the Gloss ibi, V. Caeterum, ff. si certum petatur, Molina disput. 284. § 567. Fagundez loco citato.

HENCE you can draw the difference between a donation for a day and a bequest for a day, for a donation obliges at once, and becomes irrevocable; but a bequest becomes irrevocable only at death, leg. si pupillus, §. qui sub conditione, ff. de donationibus, et ex lib. 12. et 17. tit. 15. part. 5. Molina teaches disp. 284 § illud observa. Therefore if the legatee dies before the testator, nothing of his is owed to the heirs: but if the donee dies before that day fixed for the handing over of the thing, the right passes to the heirs.

Donation is DIVIDED also into merely gratuitous, and remuneratory, or antidotal, which is rather called compensation leg. Attilius Regulus, ff. de donat. and Reinosus observat. 31 Covarr. in cap. cum in offic. de testam. num 10. teach there, Cevallos tract. 1. commun. contra communes, quaest. 273. num. 11. Mascardus de probat. concl. 1236. num. 61.

This donation, however, is valid, even if the merits are unknown from elsewhere, and are proved only by the expression of the donor, for no one can know benefits better than he who received them. So Petrus Barbosa Tom. 2. leg. quae dotis 34. ff. soluto matrim. num. 56. Iulius Clarus §. donatio, quaest. 3. Curtius the younger consil. 142. and thus the Parliament of Delphinatus judged, as Guy Papa attests decis. 95. et Claro already number 2.

Merits obliging from justice, however, are not pre-required, but it suffices if the donation is made by the judgment of a prudent donor from the debt of a grateful mind, as the Doctors teach commonly, Iulius Clarus loco cit. Covarruvas, and Socin. num. 1. Molina disp. 244. Sanchez tract. 1. de matrim. lib. 6. disp. 6. Menoch. de praesumpt. lib. 4. praesumpt. 67. a num. 1.

There is also ANOTHER donation indicated above, which is called Causa mortis, and it is a kind of liberal giving, or disposition of the will, from consideration of death, or of the danger of death, present or future. So Sylvester teaches V. donatio 4. num. 1. and it is confirmed by death alone without the addition of inheriting, as when a donation causa mortis is made to one present and accepting. For then, for its confirmation, the addition is not required; and in this it is distinguished from the other bequests and fideicommissa, which are not confirmed by death alone, but require the addition, as Bartol. teaches in leg. et in mortis, ff. de donat. causa mortis, Molina de primog. lib. 1. cap. 12. num. 14. Alexand. in leg. sciendum, ff. de legatis 1. and the Doctors commonly, cited by Fagundez lib. 4. cap. 5.

This kind differs, however, from a donation inter vivos, because the donor causa mortis wishes the thing rather for himself, while he lives, than for the donee: but in a donation inter vivos, he wishes the thing rather for the donee.

NOTE, however, that this donation ought to be liberal, and therefore not made by one freely striking fear of death in an agent in order to extort the donation; otherwise it will be invalid, as I said disput. 1. quaest. 4.

ALL those, and those alone, can give, who have the faculty of alienating with dominion.

FIRST there is a doubt about wives; whether they can give from their Paraphernalia goods, which they brought with them beyond the dowry, and from those which they acquire by their work and other weavings and industries.

WE RESPOND with D. Bonaventure in 4. dist. 15. part. 2. art. 2. quaest. 1. D. Thomas 2. 2. quaest. 32. art. 8. ad 2. Paludanus, Gabriel, Richardus, Sylvester, Angelus, and others cited by Molina Tomus 2. de iustitia, disput. 274. affirmatively, yet standing on the common law; for by the law of Portugal and Castile it is denied. See Fagundez lib. 4. cap. 5. Tannetum disput. 2. quaest. 5. dubio 2. Bassaeum, Verbo Donatio.

SECOND, concerning gifts between husband and wife, whether they can at least be made causa mortis: for some deny it, as Iulius Clarus lib. 5. sent. §. donatio, quaest. 9. to whom Fagundez gives greater approval lib. 5. cap. 4. num. 21.

The SECOND opinion holds that they are valid. So Emanuel Costa in cap. si pater, 1. part. v. legavit. Molina tract. 2. de iust. disp. 288. Gomez ad leg 50. Tauri, num. 66. It is clear ex leg. eum servum, §. ult. et ex leg. sed interim, §. sed quod, ff. de donat. inter virum, et uxorem.

THIRD it is doubted about gifts made causa mortis by a father-in-law to his daughter-in-law or son-in-law.

Iulius Clar. §. Donatio, quaest. 6. num. 7. proclaims these INVALID, where he cites very many, to whom add Couar. rubric. de testam. part. 3. Molina Tom. 2. disput. 288. The reason is that a father-in-law is deemed one thing with the son or daughter, and therefore while these live, gifts between them are prohibited.

AS REGARDS the son of a family, it is certain that he can give Castrensian and quasi-Castrensian goods: the reason is that, just as he can dispose of these by testament, so he can also give them; as is taken ex leg: marcellus, ff. de donationib. causa mortis.

But concerning adventitious goods the son of a family cannot dispose even by testament with his father's consent. So Molina disput. 138. Vallascus Tom. 2. consult. 108. numero 36. The Gloss of Bartolus and the Doctors on leg. Qui in potestate, ff. de testam. Nevertheless, concerning these he can give causa mortis with his father's consent, if he be pubescent. So Clar. lib. 4. sent. §. donat. 9. where he says all judge thus. The reason, however, why he can validly give these causa mortis but not make a testament with his father's consent, is that a testament, since it is a last will, cannot hang upon another's volition. So Iason on leg. si aiunt, C. d. Qui testamentum facere possint.

For giving, however, the father's consent is essentially necessary, otherwise the gift is invalid. So Couar. de rubric. testam. part. 3. num. 6. Clarus §. Donatio 36. Molina disp 288. Tom. 2. Fagundez loco cit. num. 25.

THERE is moreover a question about minors: whether they can give causa mortis. Minors are those who lack father and mother, and although puberes, are nonetheless under twenty-five years, as Fagundez notes num. 28. These, though puberes, cannot give, even causa mortis, without the consent of curators and a decree of the Judge, although they may dispose by testament. See Molina disp 224. Tom. 1. and disp. 288. Tom. 2. Except, however, Castrensian and quasi-Castrensian goods, for of these they can freely give, both inter vivos and causa mortis, as is clear ex leg. Pupillus, ff. de acquir. rerum dominio. And leg. si curatorem, Cap. de in integro resti. and it is the common opinion, taught by Baldus, Angel. Salicetus, Paulus de Castro, Alexander, Iason, and all, on Cod. qui testament. facere possunt. Authent. et sponsal. larg. cap. ex hoc, where the Gloss on the word testari, and Bartol. collar 9.

But if they have no Curator, or obtain release from the age from the King after twenty completed years for a male; and eighteen for a female, they can make gifts of movables, both inter vivos and causa mortis; but of immovables they cannot without a decree of the judge. See Molina Tom. 2. disput. 277. and 278.

It is DOUBTED also about deportees, who are condemned to perpetual exile, and about the relegated, who are cast into exile for a time, as is had in leg. relegatus, ff. differentiis, ff. de interdict.

I SAY therefore that the deported to perpetual exile cannot [in the common course] give causa mortis, testify, or bequeath, and the same holds for those condemned to death; text of leg. si aliquis, ff. de donat. causa mortis.

THOSE ENTERING Religion cannot make a gift and renunciation of goods while they exist as Novices in Religion, except within two months nearest to profession, with the license of the Bishop; which renunciation has no effect unless profession follows, as the holy Council of Trent defines, sess. 25. de Regular. cap. 16. Yet this decree does not impede gifts made before entering Religion, even with the intention of entering religion, as the sacred Congregation declares, 18. May 1598. and many follow, Sanchez sum. Tom. 2. lib. 7. cap. 5. num. 4. citing ten Doctors. Add Dianam Tom. 1. tract. de dubiis regular. resol. 55. who brings others.

OTHERS, however, hold that a gift made before entrance, with the intention and view of entering Religion, is also included. So Fagundez lib. 5. cap. 6: Molina Tom. 1. disp. 149. Guttier. cap. quamvis pactum, de pactis, in 6. Lessius lib. 2. cap. 41. dub. 4. num. 40. Azor tract. 1. lib. 13. cap. 9. quaestio 2. who also cites Sanchez, citing sixteen Doctors.

This seems to me to be the mind of the Council, which prohibits the renunciation of goods, lest being impoverished they be forced to defer profession, as Fagundez notes. The sacred Congregation, however, follows the first opinion.

I wish it to be NOTED, that for the renunciation above from the Council to be valid, a male must have sixteen completed years, as many adduce apud Fagundez numero 12.

FINALLY, the general rule concerning persons who can validly give is this, and it is [the] general rule, that those persons who are under the power of another, although they have dominion over goods, yet lack their free administration, cannot validly give: such are wives, the insane, prodigals, those lacking reason, the impuberes, sons of a family, and minors under twenty years, as all concede apud Fagundez num. 13. with D. Bonavent. in 4. dist. 15. part. 2. art. 2. quaest. 1. ad 4. Husbands indeed can make moderate gifts against the will of their wives; yet if they dissipate goods common to themselves and their wives, they are bound to impute that consumed faculty to themselves in a third of their part, upon dissolution of the marriage or upon divorce being made, with a division of the goods. So Molina tract. 2. disp. 275. Lessius tract. 1. lib. 2. cap. 12. dub. 14. n. 87. Fagundez n. 16. whom see. I have sufficiently explained this Tract. de Charitate, disp. de eleemosyna, et in hoc tractatu, disp. 1.

GIFTS merely liberal and simple, made by a father to his sons placed under his power, are regularly invalid, and must be brought into the partition. So the Doctors commonly apud Fagundez lib. 4. cap. 7. de contract. The reason is that the son is one thing with the father, leg. finali, Cod. de impuber.; but in gifts there must be, at least, two persons, the giver and the recipient. Yet a gift made to an emancipated son is valid, as the text has it in leg. Donationes, quae parentes, Cod. de donat. inter virum, et uxorem, and the Gloss. ordin. and the Doctors commonly on leg. 2. Cod. de ineff. dof. donat.

A gift made by a father to his son under the title of dowry is also valid, nor is he bound to bring it into the division with his brothers or other heirs after the father's death, leg. Pomponius, ff. familiae erciscundae, et ff. et Cod. de collat. bonorum, throughout.

CONCERNING gifts, however, which are made by a bridegroom to the bride, or by the parents of the bridegroom, so that he may appear more honored, see Fagundez cap. 7; yet the custom of the region must always be kept, for men are not held to give except according to such a custom, leg. penult. ff. soluto matrim. and the Law adds: Indeed, prodigal garments, which modern abuse has introduced, I do not think are to be held as gifts, nor pearls, nor precious stones, because no one is presumed to wish to use his substance with such enormity of loss to himself. See also Matthaeum de Afflictis decis. 315.

SIMILARLY, what was said of the dowry for corporeal nuptials must also be said of the dowry for spiritual nuptials to Religion; for the argumentation holds in favorable matters from one to the other, c. inter corporalia, de translat. Episcop. Bartol. on leg. 1. §. si parentes, ff. si quis a parente, Vallascus in praxi de partit. cap. 13. num. 31.

A gift of ALL present and future goods cannot be made. So the Doctors commonly, Bartol. on leg. stimulatio hoc modo concepta, ff. de verb. oblig. et in lege ult. Cod. de pactis, and others apud Fagundez lib. 4. cap. 10. The reason is that one thus takes from himself the power of making a testament, which cannot be taken away, since it is of the law of nations. The same is signified, if you give an inheritance.

WHETHER, however, one can give all present goods: I hold it more probable that it is invalid, with Iulius Claro, Couar. and Gamma, apud Fagundez lib. 4. cap. 10.

A GIFT, however, of all goods, even future ones, if the usufruct be reserved, or something by which one may be sustained, is valid; so Bartol. on Leg. stipulatio hoc modo concepta, ff. de verb. oblig. Iulius Clar. lib. IV. sent. §. Donatio, quaest. 19. Socinus iunior consil. 142. num. 39.