546. Its nature. 1. Promise signifies a contract by which someone gratuitously obligates himself toward another to doing or omitting something.

a. Promise must first be distinguished from purpose: for one proposing does not intend to assume some new obligation, but one promising intends to bind himself by a new obligation.

b. He who promises something is called the promiser, but he to whom something is promised is called the promisee.

c. Here there is question of a promise which is made to man, not of a promise which is made to God. But a promise which is made to man is either simple or mutual. Promise, whether simple or mutual, of entering a contract is accustomed to precede onerous contracts, especially real contracts, for example, a promise of giving a loan for consumption, of buying and selling a house, of entering marriage. In this place there is speech of simple promise.

2. In order that a promise have force, the conditions are required which are necessary for the value of a gratuitous contract: a. that the will of obligating oneself be present, which he who seriously wishes to promise is considered to have implicitly, even if he does not advert to the obligation; b. that the promise be externally manifested and accepted; wherefore the promiser before acceptance can always still revoke the promise made by natural law.

547. Its obligation. 1. It depends on the intention of the promiser whether the promise obliges from fidelity or from justice.

a. If the promiser intends to obligate himself only from fidelity, he is indeed bound in conscience to fulfill the promise, but only under light obligation, even in a thing of great moment, because fidelity of itself does not oblige under grave obligation; but per accidens, by reason of grave damage which is foreseen to arise for the promisee, it can oblige even under grave obligation.

b. If the promiser intends to obligate himself from justice, he is bound to fulfill the obligation under grave obligation in grave matter. Yet for constituting a grave sin matter four times greater is required than in theft, because not to give one's own thing promised to another is much less opposed to justice than to take away or retain another's thing.¹

c. If doubt exists concerning the obligation of the promise, one must stand for the minimum, because an obligation about which there is no certainty must not be imposed. Hence if someone makes a promise in a grave matter, not attending whether he obligates himself under grave or under light obligation, he must be considered obligated only under light obligation.

d. Obligatory promises ordinarily do not oblige from justice, because those promising rarely have the intention of obligating themselves so strictly. But he is considered to obligate himself from justice (and in the external forum is presumed so to obligate himself) who promises with some solemnity, for example, under oath, or adds a written note to the promise, or makes the promise before witnesses.

e. Between the obligation of fidelity and of justice this distinction intervenes: that the obligation of fidelity gives the promisee no right in the thing promised, but obliges only because everyone is bound to conform his deeds to his promises; but the obligation of justice gives the promisee a right to receiving the thing promised, so that from strict right what was promised is owed to him. Yet it does not give a real right in the thing promised, but only a personal right against the promiser or his heirs; therefore it is not licit for the promisee secretly to seize the thing promised for himself.²

2. A promise even obliging from justice ceases: a. if, after the promise has been made, a notable change of things becomes known or supervenes, which, if it had been known or foreseen before the promise, would have impeded it: for any gratuitous promise is considered made under this tacit condition: if it can be fulfilled without grave inconvenience; b. if before execution the motive cause of the promise ceases, by which the promiser was truly moved either uniquely or principally to promising; c. if the thing promised without fault of the promiser has become impossible, illicit, or useless to the promisee.

3. Whether a promise must be fulfilled if before execution the promisee dies depends on the intention of the promiser: if the promiser intended either uniquely or primarily the person of the promisee, the obligation ceases, because when he is dead the motive cause of the promise ceases; but if he chiefly intended the family or heirs of the promisee, the obligation does not expire.

4. If before execution the promiser dies, a real promise passes to the heirs, unless it is established that the promiser wished to obligate himself alone; a personal promise does not pass to them (n. 210, 3).

¹ Cf. St. Alphonsus, n. 720.

² Cf. Lugo, disp. 23, n. 12 ss.

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 SIMPLE promise is a unilateral and gratuitous contract by which the promisor binds himself to do something for another.

English law will not enforce a simple promise for which no valuable consideration was given and which was not entered into by deed. In truth, a simple promise is hardly considered to be a contract, inasmuch as this term is confined to such agreements as the law will enforce. However, in the forum of conscience a simple promise begets an obligation to fulfil it, for an honest man is faithful to his promises.

The mere expression of an intention or of a purpose to do something must be distinguished from a true promise. No new obligation is created by the former, whereas a promise imposes on the promisor a new obligation. This obligation arises from his intention to bind himself by his promise which must be made known to, and accepted by, the promisee. Until acceptance there is merely an offer, which may be revoked at will by the offeror; when the offer is accepted the promise becomes a binding contract.

There is a dispute among theologians concerning the kind and quality of the obligation imposed by a simple promise. An onerous promise for which consideration is given by the other party and mutual promises bind in justice, and consequently under pain of grievous sin in serious matter. Similarly, where the promisee has been led to rely on a promise, and would suffer serious loss unless the promise were fulfilled, the promisor will be under a grave obligation to fulfil it. Apart from these circumstances the obligation of a simple promise will depend on the intention of the promisor. If he intended to give the promisee a strict right to what was promised, he will be bound in justice; otherwise he will only be bound by the virtue of fidelity, which is a self-regarding virtue, and imposes an obligation to make the fact agree with one’s word. The virtue of fidelity of itself only binds under pain of venial sin.

A promise will cease to bind if some event takes place or becomes known subsequently which would have prevented the promisor from making the promise if it had happened or been known beforehand. For a simple promise is essentially conditional; the promisor binds himself to do something under certain suppositions and in certain circumstances; if those suppositions are not verified, or if the circumstances become changed, the obligation of the promise ceases. All the more will a promise cease to bind if what was promised becomes unlawful and wrong, or useless, or impossible. It is obvious that release by the promisee, and other causes, which are sufficient to discharge contracts according to what was said above, will also suffice to do away with the obligation of a promise.

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,

A WILL is a legal declaration of a person’s intentions which is to take effect after his death. In English law a will is not necessarily a disposition of property; the appointment of a guardian for one’s children, or of an executor who will distribute the estate according to law, is a will if accompanied by the proper legal formalities. Ordinarily, indeed, a will is a disposition of property, but it frequently contains other provisions as well, as to the place of one’s burial and other matters.

A will is not, strictly speaking, a contract, for the consent of the beneficiaries under it is not required for its validity, but it partakes of the nature of a unilateral contract, and is usually treated as such by theologians.

Lawyers and theologians are by no means agreed as to the source whence a will derives its effect. Some hold that the power of testamentary disposition is derived from the law of nature, inasmuch as there is nothing to prevent a man from doing some act and at the same time suspending its effect until after his death. Others maintain that the will of a person cannot produce its effect when that person is already dead; no disposition of property can be made by a human will that has ceased to act as far as outward manifestation is concerned. Nor does a will produce its effect until the testator be dead. They conclude, then, that the power of testamentary disposition is derived from positive law. We may, perhaps, hold as certain that the law of nature gives owners of property the right to dispose of it in some way in view of death, but that it does not determine of itself the method of disposition by will. This precise method is a result of the determination of the natural by positive law.

To be valid in English law a will must be made according to the provisions of the Wills Act (1 Vict. c. 26, sec. 9), which enacted “ that no will shall be valid unless it shall be in writing and . . . signed at the foot or end thereof by the testator or by some other person in his presence, and by his direction, and such signature shall be made, or acknowledged, by the testator in the presence of two or more witnesses, present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”

By section 11 of the same Act an exception to the rule that a will must be in writing is allowed in the case of any soldier, being in actual military service, or any mariner or seaman, being at sea. These may make a valid nuncupative will of their personal estate by word of mouth, even if they be minors.

We saw above that it is a disputed point among theologians whether an informal will is valid in the internal forum of conscience, though it be invalid in law. Probably it is valid if it express the intentions of the testator, until a party interested moves to have it set aside. All parties must stand by the decision of the court. A codicil, according to the terminology of modern English law, is a testamentary instrument altering or modifying a will. It requires for its validity the same formalities as does a will, and it may take effect without a will, if no will be forthcoming. A codicil to a particular will, or which refers to the provisions of the will, republishes the will and makes it speak as of the date of the codicil. But a testamentary instrument which is not described as a codicil to a will, and does not refer to a will, has not the effect of republishing the will.

A legacy is a gift in the form of a direction by testamentary instrument that the legal personal representative of the testator shall pay, transfer, or provide some money or thing to the recipient or legatee. The legatee derives his legacy from the executor, not immediately from the testator.

Anyone may bea legatee. A legacy bequeathed to a creditor of the testator is presumed to be in payment of the testator’s debt, but the courts look with disfavour on this doctrine, and are quick to discover reasons for setting it aside. A legacy to an infant may be paid to him if the testator so direct; otherwise the legacy must be retained until the infant attains the age of twenty-one, or paid to his testamentary guardian, or paid into court.

A legacy may be given on condition, either precedent or subsequent. Conditions against change of religion are valid in English law.

A legacy may fail from invalidity of the instrument conferring it, from uncertainty or vagueness of the terms of the bequest, or uncertainty of the person designated; from insolvency of the testator’s estate; from the testator having disposed of the object in his lifetime if the legacy be specific; or from his having paid the legacy in his lifetime; and from the non-fulfilment of a condition on which the legacy was given. ‘The legacy also lapses on the death of the legatee in the testator’s lifetime.

If a legatee has been paid, and the estate subsequently proves to be insufficient either from the discovery of further debts or the loss of assets, he may be compelled to refund his legacy in favour of creditors, and similarly a residuary legatee may be compelled to refund in favour of general legatees.

Legacies ordinarily become due on the death of the testator, but they are not payable for a year, that period being allowed executors in order to collect the assets and to pay the debts.

To secure the safety of trusts and bequests to Catholic objects, attention must be paid to various provisions of English law. The rule against perpetuities is designed to prevent property from being tied up permanently, and to obtain this end it requires that every use or trust must be so limited as necessarily to vest within a life or lives in being and a further period of twenty-one years. A tolerably large class of objects technically called ‘ charitable’ has, however, been exempted from this rule. Among these objects are the promotion of any form of lawful religion, the relief of the aged and poor, the maintenance of the sick, the establishment of free schools, and others of a similar kind. Such trusts and bequests as English law considers to be “ charitable ” are therefore upheld, though they may infringe the rule against perpetuities. According to the English penal laws, bequests for prayers and Masses for the dead were void as being bequests for ‘‘ superstitious uses,” and trusts and bequests for the benefit of religious communities of men ‘‘ bound by monastic or religious vows ”’ were also void, but these relics of penal times have now been abolished. ‘The Irish courts hold bequests for Masses to be for “ pious uses ” and not void, but subject to the rule against perpetuities as not being “‘ charitable ” in the technical sense. Trusts and bequests of land or of money to be laid out on the purchase of land are also subject to the Mortmain Acts.

These legal provisions do not bind the conscience with regard to legacies left to Catholic pious causes, nor is a Catholic justified in invoking them to make a pious legacy void for his own gain, but they should be known so that property left for Catholic purposes may be expended in accordance with the will and intention of the testator or donor (Can. 2348).

Wills and bequests for pious purposes among Catholics are governed by canon law, which requires nothing more than certain proof of the intention of the testator in order to make a testamentary disposition of property valid. It follows from this that bequests to pious causes contained in an informal will are valid, if there is morally certain evidence that it was the intention of the testator to make them. This doctrine has been frequently confirmed by answers of the Roman Congregations to questions proposed to them (Can. 1560, SEC. 43 1513, SEC. 2).

Those who have not yet attained the use of reason and persons of unsound mind are incapable of making a will by the law of nature. Religious who are solemnly professed are incapable of making a valid will by the law of the Church. Minors under the age of twenty-one cannot make a valid will, according to English law.

A will that has been made under duress and undue influence will be set aside if appeal be made to English courts. Women married after December 31, 1882, can by will or otherwise dispose of their separate property whether real or personal, and women married before that date can by the Married Women’s Property Act, 1882, dispose in the same manner of all property which accrues to them after that date.

A person who is capable of making a will may bequeath his property, both real and personal, to whomsoever he wishes; the legitim or reasonable part is not recognized by modern English law. This, of course, does not do away with the moral obligation of providing for those who have claims on the testator by reason of kindred or other ties. Still, for just cause, the testator may take advantage of the law, and leave nothing to one who otherwise would have been benefited under his will.

If a person dies intestate, his property will be distributed among his next of kin according to the statutes of distribution.

A person may be under a moral obligation of making a will from the command of a lawful superior, or because quarrels and dissensions about his property will be the consequence of his dying intestate.

A will is revoked by the subsequent marriage of the testator, by the due execution of a subsequent will which is inconsistent with the former, or by some writing declaring an intention to revoke the same and executed in the manner in which a will is required to be executed; or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction, with the intention of revoking the same. Such are the provisions of section 20 of the Wills Act, 1837, and section 21 should also be noted. It is as follows: ‘“‘ No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect (except so far as the words or effect of the will before such alteration shall not be apparent) unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin, or on some other part of the will opposite or near to such alteration, or at the foot or end of, or opposite to, a memorandum referring to such alteration, and written at the end or some other part of the will.”

The execution of a will is usually confided by the testator to a person or persons named by him and who are called the executors. Anyone who is capable of making a will may be made an executor, as may even a minor, though he cannot act until he attains full age. One or several may be appointed, but no one is bound to accept the office. If a person dies intestate, or if no executor was appointed in the will, or if he who was appointed refuse to act, an administrator will be appointed by the court to administer the estate. The widow or widower or the next-of-kin of the deceased person is as a rule the person to be selected. The will must be proved in the Probate, Divorce, and Admiralty division of the High Court. Probate in common or non-contentious form may be granted in the district registry within whose district the deceased had a fixed place of abode. Where the assets are small the county court has jurisdiction in contentious cases, otherwise these must be settled in the High Court.

An executor is the legal representative of the testator, and his duties are:

(a) 'To bury the deceased in a manner suitable to his estate. There is no property in a dead body, and a direction by will as to the disposition of the testator’s body cannot be enforced by English law. Thus the executor would not be bound to have the body of the testator cremated, though directions to that effect were contained in the will.

Ecclesiastical law forbids cremation under severe penalties, and declares directions for cremation inserted in wills of no effect (Can. 1203; 1240, sec. 1, 5; 2339).

(b) 'To obtain probate within the prescribed time.

(c) To collect the effects of the deceased with reasonable diligence.

(d) To pay the debts of the deceased in the order and manner prescribed by law, and in general in the following order: funeral expenses, expenses of probate, Crown debts, debts having priority by statute, debts of record, debts by specialty and simple contract. The executor may voluntarily pay an inferior debt before a superior one of which he had no notice, and he is not at liberty to pay a debt which by law cannot be enforced against the estate, with the exception of a debt barred by time according to the statute of limitations.

(e) To distribute the estate according to the terms of the will.

Where there is no executor these duties devolve on the administrator appointed by the court, who, after payment of debts, distributes the estate in accordance with the will, if there is one, and if there is no will, then in accordance with the statutes of distribution. To enable the executor or administrator to fulfil these various duties he is allowed a year by law before he can be compelled to pay legacies or to distribute the estate.

I. Notion. A promise is a giving of faith to another concerning something to be given or done. It differs both from a simple proposal and from a donation. It is said:

1. From a simple proposal; this is the mere will of doing or omitting something. Moreover, those things which verbally seem to be promises are often in reality simple proposals, insofar as they are not made with the mind of obliging oneself, but only of testifying to the present will; but a simple proposal does not oblige, not even from truthfulness, but at most from constancy, if there is no reason for changing; which is rare in common and free proposals.

2. From a donation, which is a giving of a right, whether in a thing or to a thing, made gratuitously to another.

II. Division. A promise can be distinguished into a promise properly so called and one improperly so called. A promise properly so called is the one which we have defined. One improperly so called is a promise made with the intention of conferring on someone a right to a thing; but a promise of this kind, strictly speaking, is a kind of donation. Now then:

1. A promise improperly so called is had or is presumed to be had: 1° when someone expressly wills to oblige himself from justice; likewise, if expressly under grave obligation, because a promise properly so called obliges only under light obligation; 2° when an oath, or a public writing, or a promissory note, or witnesses are added to the promise; 3° when neglect of the promise would manifestly tend to the damage of the promisee, as if someone promises to a poor man, wishing to buy a horse, that the price will be given as a loan (St. Alphonsus, III, 720); 4° when a mutual promise has place, as in betrothals.

2. Outside the aforesaid cases, a promise properly so called is had or is presumed to be had; namely: 1° if someone wills to oblige himself expressly from fidelity; 2° if someone wills simply to oblige himself, and does not add an oath, a public writing, a promissory note, or witnesses. Moreover, people commonly will simply to oblige themselves.

3. In doubt as to what kind of promise was present, practically one must stand in favor of a promise properly so called.

III. Obligation. 1. A promise properly so called induces an obligation of fidelity, as is sufficiently drawn out from the notion handed down. But the obligation of fidelity is only light, because neglect of it does not involve the injury of a right properly so called, and therefore brings with it only a light injury of the social order. St. Thomas says thus: "It must be said that according to honesty, from any promise a man is obliged to a man" (II-II, q. 88, a. 3, ad 1).

2. A promise improperly so called induces an obligation of justice, and one grave from its own kind; this is clear from the notion explained. But note that by St. Alphonsus and others, "to constitute grave matter in a promise there is required matter four times greater than in mortal theft; because the promisor deals with his own, the thief with another's" (III, 720).

IV. Cessation of the obligation. The obligation of a promise ceases: 1° by remission of the promisee; 2° if the thing promised becomes impossible, illicit, or useless to the promisee; 3° if in a reciprocal promise the other party does not stand by what was promised; 4° if there supervenes a notable change of circumstances which, if it had been foreseen, would have prevented the promise; for the one promising is not judged to have obliged himself for such an event (St. Thomas, II-II, q. 110, a. 3, ad 5; St. Alphonsus, III, 720). Therefore it ceases if, for example, the promisee becomes rich from being poor; if he shows himself ungrateful, and so forth; likewise it can cease, for example, because of the misfortune of the one promising, and so forth.

Corollary I. The obligation of a promise passes to the heirs of the one promising, and indeed by the same title, if there is question of a real promise; but it does not pass if there is discussion of a personal promise (n. 649).

Corollary II. The right or quasi-right arising from a promise passes to the family, the heir of the promisee, if the promise is judged to have been made with a view not only to the promisee, but also to his family.

Corollary III. A promisee to whom satisfaction is not made cannot use occult compensation, if the promise was properly so called, because such a promise confers no strict right.

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).

What a pious cause is, see n. 826.

I. Governance of donation for a pious cause. A donation for a pious cause is subject to ecclesiastical power alone (826).

II. Capacity of giving to a pious cause. One who by natural and ecclesiastical law is freely able to establish concerning his own goods can leave goods to pious causes by an act inter vivos, that is, by donation (can. 1513, § 1). Therefore it can happen that someone is able to give to a pious cause who, with civil law considered, lacks the capacity of giving. Practically, however, that will not so easily have place, because most who are incapable by civil law, for example minors, are also incapable by canon law (cf. can. 89).

III. Mode of giving to a pious cause. With respect to the mode of giving to a pious cause it is disputed whether civil solemnities have force for these donations. Now the affirmative opinion seems safe in practice. For first, the Code, can. 1513, § 2, admonishes, if there is question of a testament, that the solemnities of civil law be observed, the admonition not being extended to donations; and this is then aptly explained only if you admit that the solemnities have force for donations, so that an admonition concerning them would be superfluous. Then the Code, can. 1513, § 2, declares that heirs are to be admonished to fulfill the will of the testator, even if the solemnities of civil law have been neglected, again with the admonition not extended to donations; and this is well explained if you say that solemnities have force with respect to donations, so that, if they have been neglected, the donation cannot be urged. I said that this opinion seems safe in practice, although theoretically it is not certain; hence I judge that neither he who judges himself not to be bound by an informal donation, nor he who, resting on the contrary opinion, retains something given informally, is to be disturbed.

Objection. Canon 1529 establishes that in contracts the prescriptions of civil law are then only to be observed if there is question of ecclesiastical matter, that is, of ecclesiastical goods. But a donation made to a pious cause is not concerned with an ecclesiastical good.

Response. To someone it can seem that the objector insists too subtly on the letter. It is added that can. 1529 adds: unless something else is provided by canon law. But again, to someone it can seem that something else is sufficiently provided by can. 1513.

IV. The execution of pious wills was explained in n. 876.

Note 1. Unless the contrary is proved, those things which are given to rectors of churches, even of religious, are to be presumed to have been given to the church (can. 1536, § 1).

Note 2. A donation made to a church cannot be repudiated by its rector or Superior without the permission of the Ordinary (can. 1536, § 2). When a donation has been illegitimately repudiated, for damages which have arisen therefrom there is given an action of restitution in integrum or of indemnity (can. 1536, § 3).

Note 3. A donation made to a church and legitimately accepted by the same cannot be revoked because of the ungrateful mind of the Prelate or rector (can. 1536, § 4).

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.

Every valid contract obliges to faithful performance as a duty of conscience, even though it be unenforceable and without civil obligation. We shall discuss the properties of this obligation.

(a) Quality of the Obligation.—Onerous contracts oblige in virtue of commutative justice and under pain of restitution; gratuitous contracts oblige according to some from justice, according to others from fidelity, according to others from fidelity or justice as the obligor intends (see 1692, 1753). In practice one may follow the rule that a liberal promise or wager or other gratuitous contract obliges only from fidelity with no duty of restitution, unless it be certain that the promisor intended to bind himself in justice. One is responsible, however, for damages resultant on breach of promise. The obligation seems to be one of legal justice only when the thing promised is something on which a pecuniary value cannot be set and consists in compliance with law (e.g., in suretyship or bail for keeping the peace or appearing in court).

(b) Quantity of Obligation.—In onerous contracts the degree of obligation depends on the importance of the subject matter, and hence it is a mortal sin to violate a contract in which a grave right is concerned; in gratuitous contracts the degree of obligation depends entirely, according to some, on the will of the person who liberally binds himself, but others hold that it depends on the importance of the subject-matter.

(c) Subjects of Obligation.—The parties to the contracts and those who take their place (e.g., heirs, executors) or who are responsible for the contract (e.g., those who commanded the agreement) are morally bound to fulfill the agreement, while others are bound not to interfere with the fulfillment.

(d) Objects of Obligation.—Directly, there is the duty of observing what is contained explicitly or implicitly in the agreement, and indirectly of making good any losses caused by breach of contract. A rescindable contract obliges until it is lawfully disaffirmed by the party who has the right to break it; a quasi-contract imposes on the party who has benefited by the services or expenses of another a moral obligation of making compensation. If a contract transfers ownership (e.g., contract of sale passing title to buyer, mutuum), the transferee must bear the risks and expenses of the thing transferred; but if it does not transfer ownership (e.g., contract to sell, commodatum) or has not yet done so (e.g., contract of sale in which title will pass later, on delivery or payment), the transferer has the risk and expense (see 1796).

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.

Infidelity and Violation of a Secret.—It remains to speak of the vices of infidelity and violation of secret (see 2388 a). As to the former, since it has been discussed elsewhere (1877 sqq., 1888, 1889; see also the matter on Promissory Oaths), it will suffice here to ask the question: Is the breach of a promise freely given a sin?

(a) If observance of the promise is due from fidelity only, there is no legal fault, but there is moral fault, and hence the breach of the promise is a sin. The malice is essentially the same as that of untruthfulness (see 2395), for both the liar and the promise-breaker show themselves unreliable, the former because his words do not square with his mind and the latter because his deeds do not live up to his plighted word. Breach of promise, then, seems per se to be a venial sin, though there are often circumstances (such as damage done) that make it mortal.

(b) If observance of the promise is not due even from fidelity, on account of the presence of some defect, there is no moral obligation to keep the promise and no sin is committed by not keeping it. The defects referred to are such as make the promise lack force from the beginning (e.g., if it was immoral or extorted by force), or deprive it of the force it had (i.e., inability on the part of the promisor or loss of right on the part of the promisee). The promisor is unable to keep the promise, if the thing promised has become physically impossible (e.g., he no longer has the strength or the means to perform what he promised), or morally impossible (e.g., the thing promised has become unlawful, or a notable change has taken place which, could it have been foreseen, would have prevented the promise). The promisee loses his right if the sole or principal reason that dictated the promise has ceased, or if the promise has become useless to the promisee, or if the promisor has been released, or if the promisee forfeits his claim by his own perfidy towards the promisor (see 2256 sqq., 1889).

1. Leopoldus often says to his servant that he has in mind to leave him a legacy after his death; and to his wife he frequently repeats that he has the intention of leaving to her after his death the whole disposable part of the inheritance. Meanwhile Leopoldus dies, without having in reality disposed anything for the servant and for the wife.

Q. 1. What is a promise, and what is its obligation? 2. What as to the case?

R. To the first. Cf. I. M. 983 seqq. - To the second. Neither the servant nor the wife can compensate themselves by taking money. For it is altogether one thing to have the mind and intention of doing something, another to promise, another to donate and do it in reality. Wherefore to have the mind and intention of donating or of leaving a legacy certainly is not the same as to promise a donation or legacy, nor to donate and bequeath in reality. Since, therefore, there was no donation, no legacy, indeed no promise, by no title would the servant and wife compensate themselves.

But what must be said if Leopoldus had manifested to the pastor his mind and intention of leaving something for his soul, that so many Masses, a thousand Masses for example, be celebrated with an alms for each of ten lire? Can the pastor secretly take, if he can, ten thousand lire for this end, if Leopoldus meanwhile dies without having disposed anything even about this matter? A negative answer must likewise be given, for the same reason. There is no donation in the case, no promise; for a promise is not a mere intention and mere proposal of doing something, but an obligation of one's own faith. I. M. 982 seqq.

2. Simon, sick and near death, openly declares to his servant that he should take the money placed in the desk, which he donates to him independently of salary. The servant accepts the gift; nevertheless he delays taking the money for himself, which he knows is placed in a safe place, from which he himself can always freely take it. The master dies, and then the servant takes the money for himself and keeps it, manifesting nothing to the heirs.

Q. 1. What is a donation mortis causa, and what is its force? 2. What as to the case?

R. To the first. Cf. I. M. 955 seqq. - To the second. The servant altogether by right takes the money for himself and keeps it. For it truly had been donated to him by the master, and the donation had been accepted by him. The donation in the case, as appears from the circumstances, was indeed on occasion of death but not properly on account of death; but it was such that the donated thing was immediately made the donee's, and in this respect it was a donation among the living by a dying man. Nor indeed does it seem that handing over was lacking, since Simon not only says that he donates to the servant the money placed in the desk, but says that he should take it for himself; whence there clearly appears both an actual donation and an actual handing over on the part of Simon. Only the material apprehension of the money was lacking, which was in no way necessary for acquiring perfect dominion of it. - G. 817-819.

3. Privatus, sick, calls Belina his maidservant and says: If I die of this illness, you will receive from my chest a little box filled with a thousand lire. My death occurring, I leave it to you. Belina, accepting the donation, renders a thousand thanks to her master. Privatus had scarcely breathed out his soul when all his goods were immediately sealed by the heirs. Hence it was impossible for Belina to receive the little box. Nevertheless she claims it, but in vain. Whence, since she can accomplish nothing else, she begins little by little, when occasion is given, to use hidden compensation.

Q. What as to the case?

R. By natural law and by common positive law, and also by the more recent law, the heirs are held to pay out the money to the maidservant if the donation is certainly established to them. I. M. 997-999. But if the donation is not certainly established to them, they are not held. Nor indeed are they held to apply faith to the asserting maidservant. For anyone could affirm that this or that had been donated to him by the deceased. - Belina, on the contrary, since she herself is altogether certain of her right, could have received the money immediately after the death of Privatus. But since she could not take the money certainly donated to herself, she can now secretly compensate herself. Elbel 427, 428; G. 811-813.

But if Belina had received the little box after the death of Privatus, and then were compelled by the heirs or by the judge to furnish an oath that she had received nothing from the goods of the deceased, could she swear that she had received nothing? She indeed could, because in reality she then received nothing from the goods of the deceased, but only that which was hers. For, the death of Privatus intervening, dominion of the money was immediately transferred into Belina. The donation of Privatus was by no means indeed a donation inter vivos, which is accustomed to be expressed by the word I donate, but was a donation mortis causa, which is altogether clearly expressed by those words, I leave, my death occurring. Likewise the donation was conditioned, which is also clearly expressed by that clause, if I die of this illness, etc. Therefore, the condition of death from that illness of Privatus having been verified, the donation was made absolute.

Therefore, the donor having died, the donated thing immediately passed into the dominion of the donee, and was made hers. G. 812, 815, 816.

But what if, the little box having been received and the matter having been known, with the sentence of the judge intervening, she were condemned to restore it? Belina would then be held per accidens to restitution: by reason of obedience to be furnished to the judge, and by reason of scandal of those who are ignorant of the donation. Since Belina cannot juridically prove her right, the sentence of the judge is formally just, and therefore she is held to conform herself to it. But, restitution having been made, she will be able to compensate herself secretly. For she herself has a certain right, and the sentence of the judge was materially unjust and founded on a false presumption of particular fact, that a donation from Privatus had not been accepted. But it would be otherwise if the donation itself were made void by the judge. G. 816, 820, 821; I. M. 997, 998.

4. Blasius sends a thousand gold coins by a messenger to Odilla, his absent niece. Odilla dies before the messenger has reached her. The sons and heirs of Odilla altogether in vain claim the gift, first from the messenger, then from Blasius himself.

5. Agoardus sends a thousand gold coins to Drusilla, his blood relative, through Timotheus. But the mandatary unjustly keeps them for himself. Meanwhile Agoardus dies, and, the donation made being known, both the heirs of the donor Agoardus and Drusilla the donee claim the aforesaid thousand gold coins at the same time.

Q. 1. Whether a donation made to an absent person is valid? 2. What as to the cases?

R. To the first. Cf. I. M. 1004, 1001, 1003, 1011. - To the second. Since Odilla died before she could accept the donation, the donation was in no way perfected, and therefore by no agreement could dominion of the gift be acquired for the donee. But if dominion of the gift was not transferred into the donee, it certainly could not pass from the donee to her sons and heirs. Nor indeed can the sons and heirs of Odilla, in the case, accept the donation for her; for they could do this only from the presumed will of the donor, when the donor did not intend uniquely or principally to favor the person herself of the donee, but primarily or at least equally also her sons and heirs; which, speaking generally, must be settled from various circumstances, and in doubt the donor must be questioned concerning his mind. Moreover, in the case, since the sons and heirs of Odilla claim the gift altogether in vain, it is an evident sign that Blasius was unwilling to donate the aforesaid thousand gold coins to them, but wished to make the gift only to the very person of his niece. I. M. 1004, 1011; G. 803.

The donation of Agoardus is not valid; for it was not accepted while the donor was living, and, he having died, it can no longer be a donation inter vivos. Wherefore the thousand gold coins must be restored by the mandatary to the heirs of the donor Agoardus; but he himself is held for damages toward Drusilla the donee, since, unless he had unjustly kept those thousand gold coins, Drusilla certainly would not have sustained such damage. - G. 804.

6. Benno, extraordinarily rich and soon to die, donates to Margarita his wife a thousand gold coins, of the value of 20,000 lire, hidden in a certain chest; she, by command of her husband, immediately receives them. Benno made such a gift to his wife, that he might repay her cares and distinguished offices bestowed on him during the marriage and during his long illness; and Benno signifies this to that same wife by words, also asking her that after his death she diligently take care that a monastery of nuns be built, and that several other pious legacies, expressed in his testament, be fulfilled, which perhaps from the side of the sons would be subject to grave difficulties.

Q. 1. What is to be held concerning manual donations? 2. What as to the case?

R. To the first. The common opinion is that, according to civil jurisprudence itself, customary gifts and gifts by brief hand, if they are freely made between capable persons and in the disposable part, have force in the forum of conscience and in the civil forum, even if the solemnities prescribed by civil law are lacking, as if no act of donation is drawn up, neither public nor private. For civil law, in establishing the aforesaid solemnities, wished only to shut off the way to ill-considered donations, not to just liberalities. And this is confirmed by common custom itself, which is the best interpreter of laws. Indeed, it would be altogether intolerable that someone without a public writing could not licitly and validly donate a ring to a friend, a watch to a servant, five lire to a poor man. And this is furthermore drawn from Cod. Civ. It. 707 itself, C. G. 2279. For with respect to movables, and from C. I. to bearer instruments, possession produces as to third parties in good faith the same effect as title. This disposition, however, from C. I. is not applied to the universality of movables. Wherefore the donation of movables and of the aforesaid instruments will be altogether licit and valid, if they have already been handed over to the donee in good faith. And from this same disposition of the law of the Italian Code, it is drawn that manual donation of this sort, although it is permitted, must nevertheless be restrained within just limits, which belongs to prudent men to define, with account taken of the circumstances. I. M. 1011.

To the second. From C. G. the donation in the case would be altogether valid, as indeed a donation by a dying man, but among the living. For there is nothing whence its invalidity can be drawn; for it is a clear, determinate donation, accepted, made by a man capable of donating among the living to a wife capable of receiving. But it openly appears that the legitime was not injured, for there is question of an extraordinarily rich man.

From C. I. there is difficulty from the fact that a spouse cannot donate to a spouse. But every difficulty vanishes in the case if it is considered first that therefore donations of spouses among themselves, during marriage, are prohibited by law lest by mutual love they despoil each other. For this reason they cannot validly accept them, neither through interposed persons, nor under the species of an onerous contract. C. I. 1054, 1055; I. M. 1008. But, in the case, since Benno is soon to die, by legitimate epikeia the law does not seem to be applied, since in the same law acts of last will are excepted. Besides, the aforesaid donation is a remunerative donation, since it was being made on account of an office furnished and a benefit received; and this donation is rather a certain compensation. Likewise the aforesaid donation is at the same time an onerous donation; Benno, at his request, attached a burden, and this donation also is rather a certain payment or a certain exchange. Wherefore it is not comprehended by that law. Therefore Margarita, even according to C. I., can keep the sum received.

But the difficulty is that the donation seems excessive. Yet, if it is considered that there is question of an extraordinarily rich man, and of a donation not properly such, but of a remunerative and onerous donation, and that there is not question of a maidservant to be remunerated but of a wife, the aforesaid sum of 20,000 lire in this manual donation does not seem altogether exorbitant, although in reality it is not customary. And although a donation of this sort exceeds ordinary manual donations, an excess of this sort in the case does not hinder its validity, since by French law and by Italian law itself it is not invalid. I. M. 1011. Moreover, Benno certainly could have left that sum, the legitime of the sons being uninjured, under the name of a legacy to his wife even from the Italian Code; perhaps Benno did not do this to avoid the inconveniences which could have been present from the side of the sons. Therefore, if it is not valid as a donation, it certainly can be valid as a legacy lacking legal forms, from so certain a will of the testator in the case. G. 802, 814, 817.

7. Lucius donated, in the year 1890, 3,000 lire to Lucianus; he donated, in the year 1891, 3,000 lire to Lucinus; he donated, in the year 1892, 3,000 lire to Lucillus; he donated, in the year 1893, 3,000 lire to Lucidus. In the year 1894 Lucius dies and leaves only 4,000 lire to Lucia, his only daughter.

Q. 1. What is reduction of a donation? 2. Whether the aforesaid donations are to be reduced?

R. To the first. Cf. I. M. 1014. - To the second. Lucia, the sole surviving daughter, has a right to half part of the goods of her father. Moreover, the whole substance of the father was the sum of 16,000 lire. Wherefore Lucia has a right to 8,000 lire. Therefore the aforesaid donations are to be reduced up to the constituting of this sum, beginning from the donation made in the last place. Wherefore Lucia can seek that the donation made to Lucidus be declared null, and that the donation made to Lucillus be reduced to 2,000 lire. If the petition is made within a year from the death of Lucius, the fruits of the excess of the disposable part are also to be restored from the day of the death of the same donor. But if reduction is sought after a year, the fruits are to be restored from the day of the petition made. C. I. 1093, 1094.

8. Paulus donated 24,000 lire to Paulinus. Dying, Paulus left another 24,000 lire, but at the same time a debt of 30,000 lire. Paulianus, son of Paulus, demands reduction and says that half part of that gift is owed to him. But the creditor of Paulus also seeks from Paulinus reduction of the gift received, and consequently full payment of his credit.

Q. What as to the case?

R. Supposing that the donation of Paulus made to Paulinus was not in fraud of his creditor, concerning which nothing is had in the case and therefore it is not to be presumed, the creditor of Paulus cannot seek reduction of that gift. For none can seek it except only necessary heirs. Wherefore the creditors of the heir, because they use his rights, can indeed compel him to demand reduction, or they themselves can demand it in place of him; but the creditors of the inheritance, or of the deceased, cannot seek it; nor can it profit them if it is sought by a necessary heir. Wherefore, if the heir enters the inheritance with benefit of inventory, and himself seeks reduction, it profits the creditor nothing at all. Therefore Paulianus, as a necessary heir, by right demands reduction of that gift, and therefore there are truly owed to him 12,000 lire, or half part of that gift of 24,000 lire by title of legitime. But the creditor of Paulus, since he has no right to demand reduction and consequently cannot enjoy it, ought to be content with only the 24,000 lire left by Paulus. - C. I. 1091, 1092.

9. Titius, while he was living, donated to his paternal uncle an estate of 12,000 lire, and dying left another estate of 24,000 lire, but at the same time left several debts which come to the sum of 30,000 lire. The creditors vindicate for themselves the 24,000 lire left, and seek in addition from those 12,000 donated another 6,000 lire, that satisfaction may be made to their credits. Moreover, the heir of Titius also urges reduction of that donation, and, since that estate after the death of Titius was worth 20,000 lire, he demands for the legitime owed to him 10,000 lire. But the paternal uncle of Titius altogether refuses these demands, because he says that from a benefit would follow a harm; for finally the donation would be turned into a payment to be furnished from his own patrimony, since, 10,000 lire having been given to the heir and 6,000 lire given to the creditors, he would already have had to add another 4,000 lire from his own patrimony to the 12,000 lire received by donation. Indeed, because the value of the estate left decreased at the time the inheritance was entered, the paternal uncle of Titius is forced to add from his own another two thousand lire, as much as that estate decreased.

Q. What as to the case?

R. For reckoning the disposable and the legitime, one mass is brought together, at the time of the death of the testator, for then the legitime is owed, from the goods left by the testator when he died and from those donated by him while he lived. C. I. 822, 1091; C. G. 922. Therefore an estimation of these is made. Things left are estimated from the day of the inheritance deferred, as they were and as much as they were worth then, when the testator died, whether afterward at the time the inheritance was entered they increased or decreased. C. I. 822; C. G. 922. Things donated, if they are movable things, are estimated as they were and as much as they were worth at the time of the donation; if immovables, as they were at the time of the donation and as much as they are worth at the time of the inheritance deferred. C. I. 822. Cf. C. G. 922. As they were; wherefore, if by the diligence or negligence of the donee after the time of the donation they were made better or worse, this profits or harms him. As much as they are worth; and therefore, if after the inheritance was deferred and before it was entered their price increased or decreased, this by no means pertains to increasing or diminishing the legitime. C. I. 1012; C. G. 855. - Since therefore in the proposed case, at the time of the inheritance deferred, the estate left was estimated at 24,000 lire, and the estate donated at the same time of the inheritance deferred is estimated at 20,000 lire, the sum to be computed is 44,000 lire, without computing the two thousand lire of decrease of the estate left, which happened after the inheritance was deferred. Whence it is that by a decrease of this sort the legitime and disposable are not diminished, just as they would not be increased by an increase. Moreover, from the hereditary mass the debt is to be deducted; for goods are understood to be what remains after debt has been deducted. But debts are to be deducted not from the whole mass, namely from things left and from things donated, but only from things left, and therefore donated things remain entire. For donated things are no longer in the patrimony of the debtor. Since in the case the things left were 24,000 lire, and the debt 30,000 lire, the debt absorbs all the things left, and 6,000 lire still remain unpaid, which the creditors cannot obtain by reduction of the donation. Indeed 8,000 lire remain unpaid because of the diminished value of the estate. For reduction of a donation cannot be invoked by creditors of the inheritance, but only by heirs; and that in favor of the heirs. Therefore in the proposed case there remain 12,000 lire of the donated estate, indeed 20,000 lire, which was the value of the estate at the time of the inheritance deferred. Therefore the legitime is 10,000 lire, and the disposable is likewise 10,000 lire. Wherefore it is false that the paternal uncle of Titius must pay from his own 4,000 or 6,000 lire to the creditors; but he keeps 10,000 lire from the received donation, and must hand over the other 10,000 to the necessary heir, who is thus helped by favor of the donation carried out by his father. For, if that donation among the living had by no means been carried out, once the debt of 30,000 lire had been paid, the hereditary mass would have been only 14,000 lire; the legitime would have been only 7,000 lire, and the disposable also 7,000 lire, which Titius likewise could have left to his paternal uncle by testament. - D'Annib., 3rd ed., p. 2, n. 387 seqq.

10. Titius donated to a stranger more than the disposable part, namely three fourths. But dying he left a brother and one son, who renounced the paternal inheritance. Can the brother seek reduction of those things which were donated to the stranger?

R. Affirmatively. For from C. I. 1092 reduction can be sought only by those to whom the law reserves the legitime or another quota of succession, and by their heirs and those having cause. But from the same C. I. 805, for establishing and defining the legitime, the children left are considered, not the heirs. Cf. C. G. 921 and the following case; D'Annib., l. c., n. 347.

11. Gabinius donated to Fabritius, his friend, a house of the value of 12,000 lire; but dying he left a field of the value of 6,000 lire, leaving at the same time one son, a spouse, and a brother. The son declares that he wishes no part in the paternal inheritance. Hence the widow of Gabinius and the brother of Gabinius first contend with Fabritius, that the donation made to him be rescinded or at least reduced, because it diminishes their inheritance. Then indeed they contend among themselves, because, the son abstaining from the inheritance, the widow of Gabinius, the mother, claims a greater portion for herself.

Q. What as to the case?

R. From C. I. 1092, reduction can by right be sought by the spouse, because the spouse is a necessary heir to whom the law reserves a legitimate portion. Whether the brother also can seek reduction is a question. But it seems that it must be answered affirmatively from the cited article. For there it is said that reduction can be sought by those in whose favor the law reserves the legitime, as is the spouse, or another quota of succession, and a quota of succession is reserved by law to the brother, and by their heirs and those having cause; wherefore in the case the spouse and the brother can seek reduction.

But the widow of Gabinius cannot vindicate for herself a greater portion from the fact that the son of Gabinius abstains from the inheritance. For from C. I. 812, 815, the part is assigned to the spouse, not the quota which belongs to the individual sons, but the quota which would belong to them, including the spouse also among the sons.

Hence, the 12,000 lire donated to Fabritius having been brought into the inheritance, the patrimony of Gabinius is 18,000 lire. The legitime is 9,000 lire and the disposable likewise 9,000 lire, to which portion the donation is to be reduced. Consequently to the spouse belongs the usufruct of half part of that legitime, that is, of 4,500 lire, which namely would belong to her if the son entered the inheritance. C. I. 753. Moreover, the son abstaining from the inheritance, his portion devolves to the legitimate heirs, C. I. 883. These in the case are the spouse and the brother, to whom belongs two thirds, one third being left to the spouse. C. I. 754. Wherefore 6,000 lire belong to the brother, 3,000 to the spouse as to ownership; because this ownership which would belong to the son, he renouncing the inheritance, passes to the legitimate heirs, but the spouse besides retains the usufruct of the aforesaid 4,500 lire. Wherefore the usufruct of the other 4,500 lire belongs in two third parts to the brother and in the other third part to the spouse.

What is the order of matters to be treated? Having explained the general doctrine of contracts, we now make a step toward their various species. We shall speak first of gratuitous contracts; then of onerous ones.

What is a promise? A promise is a deliberate and spontaneous obligation of fidelity, made to another concerning some good and possible thing. - Deliberate and spontaneous: because through it we freely assume an obligation toward another, so that we may confer some benefit on him. Hence an indeliberate or half-deliberate promise, extorted by fear or fraud, gives birth to no obligation. S. Th. 2. 2. q. 89. a. 7 ad 3. Obligation of fidelity; for by a promise we ordinarily oblige ourselves only from faith, or the virtue of fidelity, by which deeds correspond to words. Concerning some good thing: for a promise concerning a bad thing gives birth to no obligation, according to R. 60 of Law in the Sixth: In evil promises it is not expedient to keep faith. This is to be understood even if the promise had been firmed by oath; for according to R. 58 of Law in the Sixth: An oath furnished against good morals is not obligatory. And possible; for according to R. 6 of Law in the Sixth: No one can be obligated to the impossible. - C. A. 861.

You will resolve: A promise differs from a simple proposal in this, that one promising obliges his fidelity to another, or himself from the virtue of fidelity, or even of justice; but one proposing does not oblige himself to another, but only determines himself in the present to do or omit something in the future. Hence he who does not keep a simple proposal, for example of fasting or of paying certain prayers, per se does not sin, unless he is obligated from elsewhere to doing something similar; but only the ugliness of inconstancy follows, beyond and against his intention. S. Th. 2. 2. q. 88. a. 1; Lugo q. 22. n. 1.

Does a promise not yet accepted oblige? A promise does not oblige before acceptance by the promisee, that is, of him to whom the promise is made, or without it. It is proved: Because an active right on the part of the promisee must result from his own acceptance; and therefore without this, neither can a passive obligation in second act result on the part of the promisor. Moreover, every pact must be perfected by the consent of each party making the pact. Therefore also a promise. C. A. 861.

You will resolve: Therefore before acceptance a promise is revocable by the promisor, because before acceptance it gives birth to no obligation and still remains in the power of the promisor. From C. A. 862, if the promise is verbal, it must be accepted immediately; if written, acceptance must be made and notified in the time established by law; before that time it cannot be revoked, but after it has elapsed it is no longer obligatory. But someone can accept through another chosen for this, or through another who has care of him, for example a father for a son, a religious for a monastery, a Prelate for his Church, a wife for a husband. For he is considered to constitute one person morally with him. From C. A. 881, no one can make or accept a promise through another, except in cases determined by law. A promise, whether made through a messenger or through a mandatary, if revoked before acceptance, does not hold.

But if it is made through a mandatary, it is necessary that the revocation become known to the mandatary; and if it could not become known, the revocation has no value, and the promise holds just as if it had been made by the mandator himself. If the promisor dies before acceptance, a promise through a messenger or through a mandatary does not hold, for the mandate ceases. If the promisee dies before acceptance, the promise can still be accepted by the family and by the heirs, if the promisor intended these persons also per se and principally; otherwise, however, the promise remains altogether invalid. Cf. 991, 1002.

How does a promise oblige? A simple and gratuitous promise, speaking per se, obliges only under venial sin. It is proved: Because the obligation of a simple promise arises only from the virtue of fidelity, which per se obliges only under venial sin. Hence by the common judgment of men, violations of simple promises are customarily esteemed little. L. 837.

Speaking per se; for by accident even a gratuitous promise could oblige under mortal sin, as would happen: 1. When the promisee, because of the promise not fulfilled, would incur grave damage. 2. When the promisor would confirm the promise by a promissory oath; for thus he would at the same time be obligated from the virtue of religion. 3. When the promisor would confirm his promise by a handwritten document, so that the promisee could act civilly; for thus he would at the same time be obligated from the virtue of justice. Therefore someone can oblige himself from justice, and then he is gravely obligated in grave matter. "It does not appear," says Lugo d. 23. n. 91, "why you could not gratuitously and without any preceding debt wish to oblige yourself from justice to another to give or do something afterward in his favor. For just as you can gratuitously donate to him a house, and therefore transfer into him some real right in the house, which is the object of proper justice, why could you not also gratuitously transfer into him a right, not in the thing, but to the thing, and constitute yourself his debtor from a debt of justice? Indeed, all that which can be given for a price can also be given gratis, and just as you can sell a house for a price, so you can also donate it gratis; and thus in each case equally you give a proper right of justice in the house. Therefore, just as, with a price accepted, you can oblige yourself from justice to doing or giving something afterward, from which obligation you give a right from proper justice against yourself, so you will be able to give this very right gratis, and constitute yourself debtor from justice, just as if you had received a price for this obligation." "And here Sanchez, Sporer, and others commonly with Tournely note that to constitute grave matter in a promise, matter four times greater than in mortal theft is required, because the promisor acts concerning his own, but the thief concerning another's." L. 720; S. Th. 2. 2. q. 88. a. 3 ad 1.

L. Si pollicitus ff. de Pollicitat.; Gousset 782.

Is a right to the thing given through a promise? If by a promise someone obliges himself from justice, although a right in the thing is not given, nevertheless a right to the thing is given. For justice obliges to not harming another's right; therefore if at least a right to the thing is not transferred to the other, that promise no longer obliges from justice. But if by a promise someone obliges himself only from fidelity, no right to the thing is given to the other in any way... "For fidelity does not oblige to that which I owe to another, but to that which I owe to myself." Lugo l. c. n. 14. One failing faith injures no right of the promisee, because he has bound not the thing, but merely his own fidelity; hence he is not unjust, but lying and unfaithful.

Does an onerous promise, once the condition has been fulfilled, oblige under mortal sin? R. Affirmatively, per se. It is proved: Because a promise under an onerous condition, once the condition has been fulfilled, obliges from justice; but the obligation of justice per se, and from its genus, is grave. Hence, when the condition is gravely onerous and the promisor would subtract much from the reward, he would sin mortally; but when the condition is only lightly onerous and the promised reward is great, the promisor would sin only venially, even if he subtracted more, because as to the excess he seems to have obligated himself only from fidelity. C. B. 780, 782.

What about promises as they are generally customarily made? - Simple promises, as they are commonly made, do not urge even from fidelity, because commonly there is not in the mind of the promisor an intention of obliging his faith; therefore they enunciate a mere proposal. - Gousset 781, 783.

Whether, or how far, does a promise oblige if before execution the promisee or the promisor dies? R. To the first: It obliges in no way if the promise was made principally in favor of the promisee; because, with him dead, the end intended in the promise ceases. But otherwise if the promise was made chiefly in view of the family of the promisee, or of his heirs.

R. To the second: When the promisor has died, if the promise was to be fulfilled from justice, furnished with the due conditions, it must be fulfilled by his heirs; because every real obligation must pass to the heirs in the same mode and by the same title by which the promisor was obligated. Therefore, under grave or under light obligation, from justice, the heirs will be bound just as the promisor, while he was living, was bound. This same thing seems to have to be said of a donation, if the donor, after the donation has been made, dies before delivery of the thing. Cf. 994. If the promise was to be fulfilled only from fidelity, then the heirs per se are freed from every obligation; since such a promise involves a personal obligation, which does not pass to the heirs. Per se; unless, namely, the contrary will of the promisor is established. C. A. 900-955.

How does the obligation of an accepted promise cease? - It ceases on account of the following causes: 1. On account of condonation by the promisee; for anyone can renounce his own right. - 2. On account of change of the object, namely if the thing promised meanwhile became impossible, illicit by laws, or harmful or useless to the promisee, for whose utility and advantage it was made. C. A. 936. - 3. On account of a supervening change of state of the promisor or of the promisee, so that the promisor would not have promised if he had foreseen this change; as, for example, if someone promised one hundred florins to a poor person, and meanwhile he himself falls into poverty, and needs them for sustaining himself or his family honorably; or, if someone promised marriage to a girl who afterward becomes poor, very deformed, or is corrupted by another. - 4.

On account of ingratitude of the promisee; for this not only takes away the obligation of the promise, but also, if it is grave, makes a donation revocable, as is had in C. ult. de Donat. 5. Through compensation, namely when two persons promised something to each other, and one does not wish to stand by the promises; for, as is said in R. 75 of Law in the Sixth, In vain does someone ask faith to be kept to himself by him to whom he refuses to keep the faith furnished by himself. 6. On account of defect of the condition, or of the principal cause of the promise itself; as if someone promised something to another on account of poverty, whom afterward he finds not to be poor. For a promise is always considered made under such tacit conditions. Struggl 23; L. 720; S. Th. 2. 2. q. 110. a. 3 ad 5; Gousset 784.

What about promise from civil law? Promise is admitted in Roman Law, Dig. 1. 50. t. 12; likewise C. A. 861 ff. And it is also admitted in C. B. For in a. 780, a promise of some prestation in a contract is admitted, which must be established in writing; in a. 518, a promise of donation is admitted, which must also be established by a legitimate act; in a. 610, a promise of loan for consumption is had; in a. 656, a promise of salary for negotiation of marriage, which promise nevertheless gives birth to no obligation; however, what was paid on that account cannot be sought back. In a. 657 ff., there is question of public promise of some reward, which induces the obligation of payment. And promise is had several other times in the same Code, especially promise of a prestation to be paid to the bearer, concerning which there is question in a. 693 ff. From C. I. and C. G. nothing special is had concerning promise. From C. G. 893, it is drawn that no civil action is given from a simple promise. From C. I. 710, promise does not seem to be excluded from the various modes by which one's own rights can be transferred to others. The same must be said of C. H. 1089, 1254. But specifically there is question in C. G. 1589, 1590 concerning a promise of sale, and it is not distinguished from sale itself. But cf. here n. 1129. There is also question of it in C. H. 1451, and those contracting have the right to reclaim execution of the contract. In C. I. 53, 54, there is specific question of a reciprocal promise of marriage, which produces no legal obligation. Nevertheless if it was made by public act or private writing, or if publications were made by a civil magistrate, the one promising, who without just motive refuses to execute the promise, is bound to compensate expenses made by the other party in view of the promised marriage.

The same is prescribed in C. H. 43, 44. Likewise there is question in C. I. 1129; C. G. 1120; C. A. 881 concerning promise of the act of a third person; for example, that Titius will give surety for you. A promise of this kind gives a right to obtaining indemnity from him who obligated himself, or promised the ratification of the third party, if that one refuses to fulfill the obligation. Besides, if he promised only that he would take care that the other give or do, if he took care of this in vain, he is bound to nothing further. The same can be drawn from C. H. 1254. Lugo d. 23. n. 114. C. H. 836; C. G. 1326.

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.

797. • A promise is a contract by which someone freely and spontaneously obliges himself to furnish or omit something gratuitously in favor of another. The conditions required for the obligation of a promise are: 1. That there be present a will of obliging oneself, at least virtual and implicit, which anyone is judged to have who seriously wishes to promise, even if he does not advert to the obligation.

2. That the consent of the same promisor be fully free and spontaneous, and therefore that all error and fraud concerning the substance and final cause, and all coercion or unjust fear, be absent.

3. That the promise itself be outwardly manifested and accepted, since every pact must consist of the mutual consent of two or more persons concerning the same object; and from another side no one is judged to wish to oblige himself toward someone unless that person accepts.

798. Questions. - It is asked, 1. What and how great is the obligation of a promise once accepted?

I reply. It is controverted among Theologians. A threefold probable sentence is given, according to St. Lig., n. 720 ¹.

¹ Certainly this distinction of three diverse sentences is seen in St. Alphonsus (book 3, n. 720), just as also among the Salmanticenses (tract. 14, ch. 4, nn. 78-83), from whom the Holy Doctor took it. Nevertheless, among these the three sentences are proposed in another order. For they place first the one which the Author has in second place; second, the one which the Author relates last; but third, the one which the Author exhibits first.

Moreover, the Salmanticenses all but destroy this their own construction. For the first sentence (the second according to the Author) they propose thus (l.c., n. 79): The first sentence says that it is a mortal sin not to fulfill an accepted promise, and that the promisor is obliged from justice, even if no other damage comes to the promisee. But then, where they discuss the second (the third according to the Author), they add (l.c., n. 81) that very many cited for that sentence rather stand for this one. Thus they say: "And from the authors of the first sentence several in reality adhere to that one (that is, the second), since they reduce that same grave obligation in a promise to the intention of the promisor, and we ourselves, many times in this Course when treating this matter incidentally, have conformed ourselves to this most probable opinion." But if the matter stands thus, why therefore do the Salmanticenses allege those authors for that first sentence, and why did they not rather cite them for the second? Add further, that others alleged by them for that first sentence dispute concerning promise insofar as it also has place in an onerous contract, as, e.g., Sylvester (v. Pactum, q. 4), Soto (De Iust. et Iur., book 7, q. 2, art. 1, ad 1), St. Antoninus (part 2, title 10, ch. 1, sect. 4), and Covarruvias (In C. Quamvis pactum, part 2, sect. 4, n. 15), which last two allegations St. Alphonsus adopted, just as also the others which he has (l.c.). But indeed, since in a true onerous contract the obligation of justice necessarily intervenes, while the Salmanticenses are not disputing concerning promises proper to an onerous contract, now these authors also are cited beside the point. And so that first sentence, as it is exhibited by the Salmanticenses, appears almost as a fiction devised by them.

But again, when they come to the third (it is the first according to the Author), they describe it thus (l.c., n. 82): "The third sentence, which we now embrace, ... asserts that, speaking of itself, a simple and gratuitous promise obliges only under venial sin." Nevertheless behold (l.c., n. 83), they add: "Nor do the things which the second sentence adduces for its part stand in the way; for we do not deny that anyone can oblige himself from justice, no debt preceding, just as he can gratuitously go surety for another, because suretyship in becoming is gratuitous, and once made obliges to payment from justice." Therefore here they confess that a promisor can oblige himself from justice, which of its kind imports a grave obligation, and whose violation of its kind is a grave sin. Therefore finally the Salmanticenses fall back into the second sentence (the third according to the Author), which is thus described by them (l.c., n. 80): "The second sentence says that it depends on the intention of the promisor whether an accepted promise in grave matter obliges gravely or not; for if the promisor wished to oblige himself from justice and gravely, he will remain bound by this obligation; if only from honesty and fidelity, as frequently happens, he will be bound only lightly; and thus it asserts that one must judge whenever the contrary is not established."

Therefore it will finally be permitted to conclude that both the first (the second according to the Author) and the third (the first according to the Author) sentence of the Salmanticenses, from their own confession, fall back into their second (the third according to the Author); whence it follows that this distinction of three diverse sentences is a certain fiction, which its own fabricators destroy with their own hands.

That seemed difficult to the Salmanticenses (l.c., n. 83), that someone would wish to promise nakedly, nothing else added, and that he would wish to oblige himself further than from fidelity. But this did not seem likewise difficult to Lugo, who explains the matter thus (disp. 23, n. 91): "It does not appear why you cannot gratuitously and without any preceding debt will to oblige yourself from justice toward another to give or do something afterwards in his favor. For just as you can gratuitously give him a house, and therefore transfer to him some real right in your house, which is the object of proper justice, why will you not be able to transfer to him gratuitously a right, not in a thing but to a thing, and constitute yourself his debtor from a debt of justice? The whole question is: what can be given for a price can also be given gratuitously; and just as you can sell a house for a price, so also you can give it gratuitously, and so in each case you equally give a proper right of justice in the house. Therefore, just as after a price has been accepted you can oblige yourself from justice to do or give something afterwards, from which obligation you give a right from proper justice against yourself, so you will be able to give this very right gratuitously and constitute yourself a debtor from justice, as if you had accepted a price for this obligation."

But the same Lugo had proposed the distinction between a promise which obliges from justice and one which obliges from mere fidelity in this way (l.c., n. 14): "I reply that there is a great difference as regards this (namely, the force of a promise according to the diverse intention of the promisor) between justice and fidelity. For justice obliges only to not injuring another's right, or to not usurping that which is another's without his consent. But when there was not a will in the promisor of giving a right to another, such a right was not transferred, because our thing cannot be transferred without our consent; whence justice cannot oblige one to preserve another's right which in reality does not exist, because I owe him nothing when the promise was merely gratuitous and without other prejudice to the promisee. But fidelity, as it is commonly said, does not oblige me to that which I owe to another, but to that which I owe to myself. For it is usually said that God, who is obliged not from justice but from fidelity, does not owe anything to another from His promise, but to Himself; because that obligation does not arise from a right which the promisee has and which the promisor must preserve uninjured, but from the obligation which he himself has of preserving fidelity in promises. For just as the obligation from veracity to speak the truth does not arise from the right of neighbor, but from the debt which I have of not impeding human commerce for myself, and of not taking away faith from myself in assertions; so the obligation from fidelity does not arise from another's right, but from the debt by which I owe it to myself not to impede human commerce for myself, and the trust of others from my words." The same Lugo elsewhere expresses this more briefly in this way (l.c., n. 91): "We have shown that the difference between fidelity and justice is in this, that fidelity gives no right to the promisee, but obliges only from this, that each one must conform his deeds to his promises, insofar as it is necessary for human living together, not only that words agree with the mind, which pertains to veracity and is opposed to lying, ... but also that deeds agree with promises, which pertains to fidelity and is opposed to infidelity."

And indeed this doctrine must be called truly most common, as it was also permitted to gather above from the Salmanticenses. For if any disagreement appears among the Doctors, it is to be referred rather to the manner of speaking than to the substance of the matter. Namely, there are some who call a true promise, as they say, or one properly or strictly so called, only that promise which obliges from justice and therefore brings in an obligation grave of its kind; but they distinguish this from a promise not true, or less properly and broadly so called, which they also call an assertion, which binds the promisor from fidelity only. Thus, e.g., Laymann (book 3, tract. 4, ch. 12, n. 1): "Promise is twofold: one improperly so called, when the intention of the one saying that he will do something in favor of another man is only to oblige himself from the virtue of fidelity and veracity, according to which we ought to be constant, truthful, and faithful in words; the obligation of constancy and fidelity of this kind of its kind and speaking of itself is light, only under venial sin.... But the other is a promise properly so called, when the intention of the promisor is to oblige himself from justice, so that to the other accepting the promise there is acquired a right and action, as of demanding something truly owed, at least in the forum of conscience...; and such a promise of its kind obliges under mortal sin." You have nearly the same things in Lessius (book 2, ch. 18, nn. 55 and 58), Sanchez (De Matrim., book 1, disp. 5, n. 20), Palaus (De Matrim., disp. 1, part 2, n. 14), Trullench (book 7, ch. 16, dub. 6, nn. 2, 3), etc.

The first sentence holds that a promise, of itself, obliges only under venial sin, from mere fidelity. The reason is that a gratuitous contract obliges only by the bond of fidelity, and fidelity does not seem to oblige under mortal sin if other inconveniences are absent. - Salmant. - Saettler, and others.

The third sentence, more common and more probable, teaches that the obligation of a promise depends on the intention of the promisor. Hence if he intends to oblige himself from justice, he is obliged under mortal sin in grave matter; but if he intends only to oblige himself from fidelity, he is obliged only under light sin. - Lugo. - Billuart. - Sporer. - etc. Moreover, for grave matter in a promise they require a quantity four times greater than in mortal theft. - St. Lig.

And indeed these things concern promise properly taken. For often promises, such as are commonly made, oblige neither from justice nor from fidelity, because the promisor does not intend to bind his faith strictly, but merely to state his purpose.

799. • It is asked, 2. What is to be said in doubt whether someone wished to oblige himself under grave or under light sin, according to the patrons of the third sentence?

I reply. More probably one must stand for the least part, because in doubt a certain burden is not to be imposed, especially in a promise, which requires the greatest spontaneity. - St. Lig., n. 720. Besides, it is certain that a promise seriously made and accepted in a grave matter can, per accidens, oblige under grave sin from justice, as if there should intervene the reason of enormous damage coming to the neighbor from the promise not kept. - Scavini.

It is asked, 3. Whether someone can accept a promise through another?

I reply affirmatively. Someone can accept a promise through anyone chosen for this, or through a familiar, because he is judged morally to constitute one person with him. He can also accept a promise through another who manages his care, e.g. a father for a son under paternal power, a Religious for a monastery, a Prelate for his Church, a wife for her husband.

It is asked, 4. When does the force of an accepted promise cease?

I reply. 1. If the promisee spontaneously condones it or cedes from his right. - 2. If the thing promised becomes illicit or useless. - 3. If the promisee does not stand by his own promises. - 4. If the state of things or persons is so changed that the promise does not seem to comprehend that event. - 5. If the cause which moved one to promise does not subsist in any way ². - St. Lig., ibid.

² This last point, if taken universally, is not true. For a past cause, however false, generally speaking does no harm and is held as not added. See Voet, In Pand., book 35, title 1, n. 9.

800. • It is asked, 5. Whether, or to what extent, a promise obliges if before execution the promisee or the promisor dies?

I reply to the first by distinguishing. It obliges in no way if the promise was made principally for the sake of the promisee; because, when he has died, the end intended in the promise ceases. But it is otherwise if the promise was made chiefly with a view to the family of the promisee, or his heirs.

I reply to the second. When the promisor has died, a promise clothed with the due conditions must be fulfilled by his heirs; because every real obligation must pass to the heirs in the same way and by the same title by which the promisor was obliged. Therefore the heirs will be held under grave or under light sin, from justice or fidelity, just as the promisor, while he was living, was held. Nevertheless, they will be able to be freed from every obligation if, from the circumstances of the thing or from signs, it is manifest that the promisor wished to oblige only himself personally. - Lugo. - Reuter, etc.

Case. Sylvinus sometimes says repeatedly to his maidservant Perpetua that he will pay to her, beyond the annual wage, a hundred scuta, or that in his testament soon to be drawn up he will leave the same sum of money as a legacy. But behold! Sylvinus is seized by sudden death before he could complete his purpose. But Perpetua without delay hastens secretly to take the money promised to her. Was this rightly done? I reply: By no means. For a promise does not give a right in the thing, nor therefore any faculty of occupying the promised thing by one's own authority ³. - See above, On Justice, n. 521. - Moreover, commonly these promises are nothing except a mere signification of purpose, and only state the will of giving something. - Gousset. - See Cases, n. 797 and following.

³ Nevertheless, a promise, if it is made from justice, gives the promisee a right to the thing (De Lugo, disp. 23, n. 100). See besides the things which the Author has below, n. 836. But in the case, this too must be observed, that the promise of Sylvinus is judged remunerative; and remunerative donations (which the Author also notes below, n. 828) display rather a certain payment of a debt than a gratuitous cession.

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.

675. The principal gratuitous contracts are promise and donation; to these is added testament, which, although properly it is not a contract, but an act, is nevertheless so akin to donation that it is opportune to discuss it immediately after donation; and since successions are intimately connected with testaments, we shall likewise treat of them in this article: -

On promise.

On donation.

On testaments.

On those things which are common to donations and testaments.

On successions.

There are other gratuitous contracts, such as loan for use, loan for consumption, deposit and sequestration, mandate and management of affairs, concerning which the civil Codes can be consulted, in which are set forth rules having force also in the forum of conscience.

I. Preliminary Notions. Three things, in the first place, are to be distinguished: a resolution, a promise of fidelity, a promise of justice or contract of promise. A resolution is merely a decree of the will by which, with respect to another, nothing has been taken away from the freedom of the will; a promise, an obligation having been undertaken with respect to another, differs from a resolution. But to another there can merely be pledged fidelity, or a right can be conceded to the promised performance. Fidelity, here, means the quality which makes a man worthy to be believed and trusted. He who pledges fidelity wills that the other to whom he promises believe and trust him: then commerce among men, which rests upon mutual fidelity, requires that the one, by carrying out what has been said, avoid the deception of the other. This is the obligation of fidelity, which is not grave.

But he who concedes a right to another has alienated his own liberty, i.e. he has permitted into another's hands the liberty of doing otherwise. This is the obligation of justice, to which satisfaction must be made, by execution of the promise, under grave or light obligation, according to the capacity of the matter and the intention of the parties.

But there can be promised an act or an omission, or a thing. Hence promise is distinguished as personal and real. A personal promise is of one's own act; a real promise is of a thing, or even of an act with respect to which it does not matter by whom it is performed.

II. Definitions. 1. A simple promise can be described in a confused way as: a deliberate declaration, made to another who knows and does not resist, of a gratuitous performance useful to the other.

We call the description confused, because it does not distinguish the contract of promise from a promise obliging from fidelity.

It must be deliberate, because, as was said concerning a vow, n. 209, a semi-deliberate promise induces no obligation: that deliberation is required which is sufficient for sinning mortally.

To another who knows: as long as the other is ignorant, not even an obligation of fidelity has been undertaken. For this obliges one not to deceive the other; but he who is ignorant of the declaration can suffer no deception from a changed intention.

And not resisting. For he who positively refuses the declaration expects no execution, and therefore cannot be deceived.

It is called gratuitous, insofar as it is not made because of another's promise or debt.

Useful to the other. For the law of nature itself, by its positive prohibition, invalidates a promise harmful to another; and it does not sanction one that is wholly futile.

Among harmful promises we must place also dishonest and illicit promises.

But it is repugnant to the divine holiness that it acknowledge a bond of iniquity.

Indeed, a prodigal promise, as such, is judged so illicit that it probably does not oblige (St. Alphonsus, L. 6, n. 851, against Lugo, Iust. d. 18, n. 60. 61).

Standing by the law of nature, the other to whom the promise ought to be useful can be the contracting party or even a third party. For the bond of charity effects that what is done for my neighbor ought to be judged as done also for me.

The promised performance can be real or personal.

2. The contract of promise can be described as: a deliberate and gratuitous concession of a right, made to another accepting, for obtaining a useful performance. For by contract a right is transferred. But because no one acquires a right except willingly, the obligation does not arise before the other's acceptance. But when a promise made by letters is judged perfected, we saw above, n. 419. 420.

Positive laws, since they do not attend to the general bond of nearness, are not accustomed to sanction promises which are not useful to the other contracting party. But that utility can be created by an added penal clause or by a donation made to the promisor. Nor do laws directly consider a promise from mere fidelity.

III. The Obligation of a Promise. 1. As to the nature of the obligation: a) a strict obligation of justice is not to be presumed; it is more easily had in mutual promises and in written promises than in gratuitous verbal ones; b) if the execution of a definite promise, already at the very moment at which it is promised, seems necessary for avoiding notable damage, even a verbal promise will be judged to oblige from justice: as if you promise a determined sum for making some expense. But even then the force of the promise is reasonably, and rather strictly, to be taken. He who, for example, has promised definite money for the education of some young man, unless he has expressly promised more, is not judged to have bound himself to pay that money through several years (until the education is completed); c) a promise little defined, or one which can be a courteous response, will not oblige the promisor even under fidelity. Tanquerey, III, 678.

You will ask whether an obligation of fidelity can be converted into an obligation of justice by reason of damage that will follow from non-execution. There are those who seem to affirm this. But we think it must be said thus. Fidelity fictitiously given, with foresight of damage of this kind, would be a harmful act whose consequences would have to be repaired from justice. But if I sincerely interposed my constancy, the other who relies on it knows that I can change my intention without injury. If that harms him, let him impute it to himself, because he gave faith to me. My obligation is not changed on that account. But after I have changed my will, I shall be bound from justice to make the other more certain, if my silence would be the cause of a harmful deception. In this respect even the judge of the external forum can judge concerning a promise by which someone's mere fidelity has been pledged.

2. As to the gravity of the obligation, this of itself is light if the obligation is of fidelity; but even when it is of justice, they estimate grave matter as four times greater than grave matter of theft.

Only an obligation of justice permits occult compensation.

IV. Cessation of the Obligation. 1. Besides the general modes by which the obligation of a contract is taken away, it must be noted that the obligation of a gratuitous promise ceases because of an inconvenience on account of which, if it had been foreseen, the promise would not have been made. Here again, damages which perhaps will come to the promisee from this cannot be imputed to the promisor; yet it is equitable that, in weighing the inconvenience, he take account of the grave damage which the other will suffer.

2. When the promisee has died, the promise will be extinguished if the intention of the promisor regarded only the promisee; but the contrary, if he wished to be beneficent to the family itself. But when the promisor has died, a promise of a personal act has become impossible, and therefore is taken away. But a real promise, if it was one of justice, burdens the patrimony and therefore the heirs. Otherwise if it was one of fidelity, unless the promisor absolutely willed that the things promised be completed by execution. For then he is judged to have bequeathed the performance to the promisee, so that the heirs must fulfill the promise from justice. That legacy, which for pious causes could be valid because of canonical form, will nevertheless, from positive civil law, be invalid, unless it is contained in a testament of civilly suitable form, or unless the law itself sanctions transmission of the obligation to the heirs. Thus we said that what Lugo, Iust. d. 23, n. 98, says too absolutely, in our judgment, concerning the translation to heirs of every real promise, must be tempered.

How matters stand if, before the promise has been accepted, the promisor or the promisee dies, was said above, n. 421.

3. Concerning positive law we shall note only this, that in more than one law it is now sanctioned that a promise holds the one making the declaration even before acceptance. Cf. what was said above, n. 418; cf. also Pacifici-Mazzoni, IV, p. 252, note b), Colin and Capitant, II, 270.

Jurists also labor in explaining the certain obligation which promises made publicly through newspaper announcements or in a similar way, and also titles to the bearer, bring forth, because the declaration has been made to persons not determined. Cf. Pacifici-Mazzoni, IV, p. 78 ff.

The Brazilian Code assigns title VI to obligations which arise from unilateral declaration. Chapter I treats of titles to the bearer; chapter II of promised reward (cf. art. 1505-1532).

V. Corollaries. 1. Unless a promise has been made from justice, the promisee, neither while the promisor is living nor after his death, can satisfy himself secretly. If, however, the promisor has been overtaken by death after an absolute promise was made, the promisee who secretly took the thing promised to him seems able to be excused from restitution, on account of the probability which St. Alph., L. 6, n. 720, ascribes to an opinion of this kind. Cf. Aertnijs-Damen, I, 881. Yet the reason is not to be sought from this, that every promise would oblige from justice (which opinion St. Alph., l. c., undeservedly ascribes to Laymann), but rather because Lugo and several after him admit that the object of an absolute promise is virtually bequeathed by the deceased.

2. Let us not confuse a resolution with a promise; an intention of donating or bequeathing, with a donation or legacy. Domestic servants, not rarely, relying on certain benevolent words of their master, think that they have a right either of demanding from the heir, or of taking, what they were hoping to obtain by title of legacy. But unless the master by words formally or equivalently said, "this is yours," "I give this to you," he made no donation by which they acquired a right; unless he said absolutely "I will that after death such money or such a thing be yours," but merely spoke in this or a similar way: "I shall not forget you; you will be satisfied," they cannot rely even on an informal testament so as secretly to take something for themselves as remunerative. Wherefore a servant to whom the master has manifested an intention of a legacy has no right if the master, overtaken by unexpected death, made no testament. Nor is the heir bound to believe a servant affirming an absolute will of the deceased to donate or bequeath; indeed, since there is no question of a pious cause, he can neglect a legacy which is not contained in a testament of civil form.

Yet it would have to be said otherwise if the servant, relying on the words of the master, had asked for or accepted either no wage or only an unequal wage for his labor: for then the services were as if conditionally gratuitous. And it is altogether fitting that the heir, according to the presumed or at least reasonable will of the deceased, compensate faithful services with an equitable remuneration.

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.

¹

Gratuitous contracts are either unilateral, such as promise and donation, or bilateral, such as loan for use, precarium, deposit, sequestration, mandate, management of affairs, and finally loan for consumption, which nevertheless is accidentally an onerous contract. A few things concerning each.

¹ In German: gratuitous contracts (unentgeltliche Verträge).

²

² In German: promise of a gift (Schenkungsversprechen).

267. Notion. A gratuitous promise is a contract by which someone liberally and spontaneously obliges himself to furnish or omit something for another; or more briefly: A promise is the free and spontaneous giving and acceptance of faith concerning a lawful, possible, and useful thing. Nevertheless, an onerous promise is also given,³ which can intervene in other contracts. We do not treat it here. He who promises something is called the promisor; but he to whom something is promised is wont to be called the promisee. The following are required for a gratuitous promise:

1. The intention of truly obliging oneself. Hence a promise differs from a purpose, by which someone indeed intends to do something but does not wish to undergo a true obligation; it also differs from a donation, which is a giving of a thing, while a promise is only a giving of faith.

2. A spontaneous and free will, i.e., free from every error, force, or fear. In a gratuitous promise, even slight fear is excluded, because otherwise it is no longer altogether gratuitous and spontaneous. It is otherwise in an onerous promise.

3. Manifestation and acceptance of the promise. For a promise is a contract. But no contract between men is perfected unless the will of each contracting party is manifested and accepted by each. Authors dispute whether acceptance must always be express. Sometimes, from the circumstances, even the silence of the one to whom the promise is made is sufficient acceptance, since some benefit is conferred upon him from the gratuitous and liberal promise; and then the adage holds: "He who is silent seems to consent."⁴

³ It is sometimes called an offer of reward (Auslobung; cf. German Civil Code § 657) and is had if someone promises some gift to one who produces some determinate result.

⁴ Cf. Billuart, De contract. diss. 2, a. 1.

268. Obligation of a promise. Concina⁵ notes excellently concerning this matter, saying: "The discussion is not about an onerous promise, inducing an obligation on each side; nor about a civil promise, producing, besides the obligation of fidelity, a legal debt. A civil promise (inducing a legal debt) is said to be that which is made before a notary and witnesses, or by means of a signed document, by force of which the promisor or donor can be compelled in the external forum to fulfill what was promised. All agree that these two promises give rise to a grave obligation from justice. The dispute is only about a simple private promise made in words and accepted."

Violation of a legitimate and accepted gratuitous promise is a sin opposed to truthfulness and fidelity. Thus all. If this violation accidentally causes unjust damage to the promisee, it is a sin grave in its genus against justice. Thus also all. E.g., one who culpably does not keep a promised secret and thereby causes grave damage to another sins mortally against justice and is bound to restitution. - But if someone does not keep a promise made without sufficient reason, yet without causing notable damage to the promisee, is this a mortal sin in its genus? There are three opinions.⁶

The first contends that one who does not fulfill an accepted promise sins mortally, and indeed against commutative justice. The reason is that the virtue of fidelity is a potential part of justice and, as the foundation of all obligations, is especially necessary to the republic and to human society. St. Antoninus,⁷ Silvester Prierias,⁸ Dominic Soto,⁹ and Billuart¹⁰ defend this opinion. But if it is asked according to this opinion what matter is grave in the violation of a promise, these authors respond that matter four times greater than in theft is required before a grave obligation of restitution arises.

The second opinion teaches that the gravity of the obligation depends upon the intention of the promisor. For a promise is a certain private law which the promisor freely imposes upon himself. Therefore, he can bind himself gravely or lightly, from justice or from fidelity. Thus Lugo¹¹ (who says that this opinion altogether pleases him), Molina,¹² and others. But this opinion does not reach the point of the difficulty. Certainly a liberal promise does not oblige beyond the explicit intention of the promisor, and consequently the promisor can oblige himself either under grave sin or under light sin, just as the obligation of a vow, which is a promise made to God, can be light or grave according to the particular intention of the one vowing. Therefore the knot of the difficulty is how great the obligation of a promise is from its own nature, abstraction being made from any particular intention of the promisor. A particular intention of gravely obliging oneself is considered to be in the promisor: 1. when he confirms the promise by an oath; 2. when he promises by stipulation, e.g., I promise 1,000 francs to him who discovers such a criminal; 3. when he promises before a notary, or before witnesses explicitly assumed for this, or by a written document; 4. when he says: I oblige myself as much as I can, or something similar.

The third opinion defends that a simple accepted gratuitous promise obliges of itself only under light sin. The reason is that the violation of a promise of this kind is as it were a simple lie. But a simple lie is only a venial sin in its genus, as was proved above, n. 170. Therefore the same is true of the violation of an altogether gratuitous promise. There is added the common estimation of men, who do not think that they have committed a mortal sin when they have broken a simple and wholly liberal promise given, yet without damage to their neighbor. St. Thomas seems to favor this opinion, saying: "According to moral rectitude, from every promise a man is obliged to a man."¹³ Thus also teach Cajetan,¹⁴ Bañez¹⁵ (but nevertheless not so clearly), Peter de Ledesma,¹⁶ John of St. Thomas,¹⁷ and many others. Since every question in which there is question of mortal sin is perilously determined unless the truth is expressly had, and since a sin is not to be asserted as mortal unless it is certainly established, hence this third opinion seems to us to be preferred in practice. Nevertheless, a frivolous violation of a promise made is truly detestable and not rarely causes grave enmities.

⁵ De iust. et iure l. 3, diss. 4, c. 20, n. 6ff.

⁶ Cf. St. Alphonsus, Theol. mor. l. 3, n. 720.

⁷ S. theol. P. 2, tit. 10, c. 1, § 4.

⁸ Summa, s.v. "Pactum," q. 4.

⁹ De iure et iust. l. 7, q. 2, a. 1 ad 1.

¹⁰ L.c., § 2.

¹¹ De iust. et iure disp. 23, n. 90.

¹² De iure disp. 262, n. 11.

¹³ S. theol. 2, 2, q. 88, a. 3 ad 1.

¹⁴ Comm. in 2, 2, q. 113, a. 1, dub. 4.

¹⁵ Comm. in 2, 2, q. 62, disp. 5, dub. 2.

¹⁶ De matrim. q. 45, a. 5, dub. 2.

¹⁷ 1, 2, q. 88, disp. 29, a. 9.

269. Cessation of the obligation. St. Thomas enumerates two reasons on account of which a promise made ceases: 1. when the thing promised is illicit; 2. when the thing promised, or the circumstances of the thing or person, are notably changed.

"Nevertheless, [the promisor] can be excused for two reasons: in one way, if he promised that which is manifestly illicit, because he sinned in promising but does well in changing his purpose; in another way, if the conditions of persons and affairs have changed. For, as Seneca¹⁸ says, in order that a man be bound to do what he promised, it is required that all things remain unchanged; otherwise he was neither mendacious in promising, because he promised what he had in mind, with the due conditions understood; nor is he unfaithful in not fulfilling what he promised, because the same conditions do not exist. Hence even the Apostle did not lie, who did not go to Corinth, whither he had promised that he would go, as is said in 2 Cor. c. 1, and this on account of the impediments which supervened."¹⁹

Modern authors, besides these two reasons, add two others, namely: a) if the promisee freely remits; b) if, a mutual promise having been made, the other did not stand by what was promised. For faith given is also broken with impunity toward one who has broken faith.

You will ask: What are the obligations if the promisor or the promisee dies before the promise has been completed in execution?

a) If the promisee dies and the promise was made principally for his personal favor, then the obligation of the promise also dies; it is otherwise if the promise was made principally, or at least equally principally, in favor of the promisee's family and his heirs. For then the obligation remains.

b) If the promisor dies, a personal promise, i.e., concerning a personal action to be furnished, ceases; but a real promise, i.e., concerning a thing to be given, passes to the heirs. - In practice, however, it is safer to follow the statutes of the civil code.

Note. Since a gratuitous promise does not cause a right in the thing, it is not lawful to employ hidden compensation in a case in which the promisor did not stand by what was promised without sufficient reason. If, however, the promise was from justice or was remuneratory, one who in good faith occupied the thing promised can retain it unless a judge establishes the contrary. E.g., a niece serves, without an explicit contract, a sick uncle who explicitly promised that he would give a gift of 1,000 francs. When through sudden death the uncle cannot stand by this promise, the niece can be left in good faith if she took the promised 1,000 francs.²⁰

¹⁸ De benef. l. 4, c. 34ff.

¹⁹ S. theol. 2, 2, q. 110, a. 3 ad 5.

²⁰ Thus Göpfert, Moraltheol. II, n. 99; Marc, Instit. mor. I, n. 1062; Aertnys, Theol. mor. l. 3, n. 404.

270. Notion. Donation or gift can be defined as "the liberal giving of one's own thing to another who accepts it."²¹ He who gives is called the donor; but he to whom something is given is called the donee.

Divisions. The more principal divisions of donation are the following:

1. A purely liberal donation and an antidoral or remuneratory donation. The first is that which supposes no obligation in the donor, either of justice or of gratitude. This alone is donation in the strict sense; hence, when in positive law several donations are prohibited or invalidated, e.g., those between spouses, donations of religious, or when donations are declared revocable because of the ingratitude of the donee, purely liberal donations alone are understood. The latter is that which supposes an obligation of gratitude.²²

2. A donation inter vivos, in prospect of death, or by testament. A donation inter vivos actually and irrevocably transfers ownership, at least radical ownership, of the donated thing to the donee; e.g., I give you this book. A donation in prospect of death transfers ownership indeed, but revocably until the donor's death; e.g., I give you the sum of 1,000 francs, to be possessed after my death; if, however, I shall otherwise have need of it, you will not have it. A donation by testament transfers no ownership until after the death of the testator, who during life can freely change his will. Therefore, in a donation inter vivos, ownership is transferred immediately and absolutely; in a donation in prospect of death, immediately but conditionally; and finally, in a donation by testament, only for the future.

3. A real or complete donation and a verbal or incomplete donation. The former is the real delivery of the donated thing, and consequently confers upon the donee a perfect right in the thing. E.g., an uncle gives his nephew 100 francs and immediately delivers this sum to him. The latter is that which is not accompanied by delivery of the donated thing and consequently confers only a right to the thing. E.g., I give you the salary which I myself shall have at the end of the month.

4. A pure donation and a qualified donation. The former is an absolute donation lacking every modification. The latter is a donation affected by some modification, of which there was discussion above, n. 261ff.; e.g., a donation under a condition, under a mode, under a demonstration, under oath, etc.

We shall treat: 1. donation in general; 2. donation inter vivos and donation in prospect of death; 3. donation by testament; 4. presumed donation, or intestate succession.

²¹ Cf. Billuart, De contract. diss. 3, a. 3.

²² Reward or remuneration (Belohnung).

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

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

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

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

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

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

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

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

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

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

²⁶ Summula Theol. mor. II, n. 339.

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

²⁸ Cf. L. 36, Code 8, 53.

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

272. A donation inter vivos immediately and absolutely transfers ownership, at least radical ownership, to the donee. Everything said in the preceding paragraph applies to it. But a donation in prospect of death indeed immediately transfers ownership to the donee, yet not absolutely, but only if the donor has not revoked the donation before death. It therefore confers a right in the thing, although a conditional one. A donation in prospect of death differs somewhat from testamentary legacies, because the latter confer only a right to the thing and depend entirely upon the validity of the testament; on the contrary, a donation in prospect of death is valid even if a testament that may have been made is wholly invalid. In most modern laws, donations in prospect of death, insofar as they are distinct from testamentary legacies, are no longer recognized.³⁰ Wherever they are still recognized, the civil law of that region is to be followed.³¹

³⁰ Cf. Swiss Code of Obligations art. 245; Staudinger, Kommentar zum Bürgerlichen Gesetzbuch I, 355; German Civil Code § 2301. Authors do not agree in assigning everything required for a true donation in prospect of death according to ancient Roman law. Lugo discusses this matter quite clearly (De iust. et iure disp. 24, sect. 15, n. 318), saying: "A donation in prospect of death is that by which something is delivered or promised so that, if the donor's death occurs before the donee's death, it becomes irrevocably the property of him to whom it is given.... Sometimes this donation begins with delivery, by which the donor transfers ownership to the donee, but revocably unless he confirms it by death; hence, in whatever way the donation is revoked, both the donated thing and all fruits received from it must be restored.... Sometimes, however, it begins from a promise alone without delivery; and then it is not valid unless acceptance by the donee follows." Cf. H. Vering, Geschichte und Pandekten des römischen und heutigen gemeinen Privatrechts² § 11.

³¹ Cf. Austrian Civil Code § 956.

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.

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).

871. • Promise is a contract by which someone freely and spontaneously obligates himself to furnish or omit something gratuitously in favor of another. The conditions required for the obligation of promise are:

1° That there be present the will of obligating oneself, at least virtual and implicit, which anyone is judged to have who seriously wills to promise, even if he does not advert to the obligation.

2° That the consent of the same promisor be fully free and spontaneous, and therefore that every error and fraud about the substance and final cause, and every unjust coercion or fear, be absent. Cf. n. 853, III.

3° That the promise itself be manifested outwardly and accepted; since every pact ought to consist in the mutual consent of two or several into the same object; and from elsewhere no one is judged to will to obligate himself toward someone unless that one accepts.

872. Questions. - Query 1° What and how great is the obligation of a promise once accepted?

Resp. It is controverted among Theologians. There is given a threefold probable opinion, according to St. Alphonsus.¹

The 1st Opinion holds that a promise, of itself, obligates only under venial sin and from mere fidelity. The reason is that a gratuitous contract obligates only by the bond of fidelity, and fidelity does not seem to obligate under mortal sin, if other inconveniences are absent.

The 2nd Opinion says that a serious promise in a grave matter obligates under grave sin from justice, independently of the intention of the promisor. The reason is that a gratuitous promise is not of a diverse order from an onerous promise by reason of obligation.

The 3rd Opinion, the more common and more probable, teaches that the obligation of a promise depends on the intention of the promisor. Whence, if he intends to obligate himself from justice, he is obligated under mortal sin in grave matter; but if he intends to obligate himself only from fidelity, he is obligated only under light sin. Moreover, for grave matter in a promise they require a quantity fourfold greater than in mortal theft.

But it is certain that a promise by accident obligates from justice if one's neighbor suffers damage from the promise not observed, and that under grave or light sin according to the measure of the quantity of the damage. For example, I promised to give you a loan for consumption, which you gravely need, and you, trusting me, did not provide for yourself from elsewhere; or I took care that my son be educated, because you promised me the expenses, which afterward you refuse.¹

And these things indeed concern promise properly taken. For more often promises, such as are commonly made, obligate neither from justice nor from fidelity, because the one promising does not intend to obligate his faith strictly, but merely to announce his purpose.

873. • Query 2° What in doubt, whether someone wished to obligate himself under grave or under light sin according to the patrons of the third opinion?

Resp. More probably one must stand for the minimal part, because in doubt a certain burden is not to be imposed, especially in a promise, which requires the greatest spontaneity.² Except, as above, a promise seriously made and accepted in a grave matter, which by accident can obligate under grave sin from justice; as if there intervened the reason of grave damage coming to one's neighbor from the promise not observed (n. 872, § But it is certain).

Query 3° Can someone accept a promise through another?

Resp. Affirmatively. Someone can accept a promise through anyone chosen for that, or through a familiar, because he is judged to constitute morally one person with him. He can also accept a promise through another who conducts his care, for example, a father for a son of the family, a Religious for a monastery, a Prelate for his Church, a wife for her husband.

Query 4° When does the force of an accepted promise cease?

Resp. 1° If the promisee spontaneously condones, or cedes from his right. - 2° If the thing promised becomes illicit or useless. But if it was prodigal, it will obligate to observing what is not prodigal; but in an indivisible thing nothing is owed.¹ - 3° If the promisee does not stand by his own promises. - 4° If the state of things or persons is so changed that the promise does not seem to comprehend that event. - 5° If the cause which moved to promising in no way subsists.

874. • Query 5° Whether, or how far, does a promise obligate, if before execution the promisee or the promisor dies?

Resp. to the 1st. Distinguish. It obligates in no way if the promise was made principally in favor of the promisee; because, he being dead, the end intended in the promise ceases; but otherwise, if the promise was made chiefly with regard to the family of the promisee, or his heirs.

Resp. to the 2nd. When the promisor has died, a promise clothed with the due conditions is to be fulfilled by his heirs, because every real obligation ought to pass to heirs in the same manner and by the same title by which the promisor was obligated. Therefore the heirs will be held under grave or under light sin, from justice or fidelity, just as the promisor was held while he lived. Yet they will be able to be freed from every obligation if from the circumstances of the thing, or from signs, it is manifest that the promisor wished to obligate only himself personally. - Lugo, Reuter, etc.

Resolutions. - 1° Those things which are promised by a master to servants, beyond the annual stipend, as to be given at some time or left in the manner of a legacy, are often mere purposes. But if they are promises, they are made either only from gratitude, for example, for service faithfully furnished, or from justice, say, because of undue industry or work. If the master, before the promise is fulfilled, dies unexpectedly, in the former case it will not be licit to carry off the thing promised by occult compensation, since a strict right does not arise from fidelity; but it will be licit in the latter case, because in this case a strict right is born from the promise.¹ Besides, in this case the promise is deservedly judged a remunerative donation, which imports the payment of a debt rather than a gratuitous cession (n. 876).

2° One subscribing to a formula by which money is requested for erecting a church or some pious work signifies, according to the tenor of the formula, either a purpose, or a promise of giving, or a donation afterward to be executed. One not paying the money, in the first case, of himself sins in no way; in the second, venially; in the third, gravely. For the internal forum, the obligation is to be determined from the declaration of the penitent concerning the sense in which he understood or intended it, for example, merely courteously.²

Note. - A promise by our law is a naked contract (n. 828, 5°); but it is clothed if it rests on a consideration estimable by price. (y) p. 476.

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.

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

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

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

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

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

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

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

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

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

Question 2. Who are those who cannot receive donations?

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

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

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

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

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

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

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

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

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

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

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

But a donation between the living:

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

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

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

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

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

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

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

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

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

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

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

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

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

I. QUESTION I. What is assurance? ANSWER. It is a contract by which for an agreed price a man takes upon himself another's danger, being about to compensate it either wholly or in part. The quantity of the price is fixed by the laws of the marketplaces. All grant that this contract is lawful. In the chapter Naviganti the assurance prohibited is in respect of a lender, on account of the danger of usury.

II. QUESTION II. What is suretyship, pledge, hypothec, and composition? ANSWER. Suretyship is the taking upon oneself of another's obligation, by which a man binds himself to fulfil it, the principal debtor failing. That contract is called subsidiary and accessory, because the surety is substituted for the principal debtor. He who constitutes himself a principal debtor for another is not properly a surety. Often nevertheless sureties constitute themselves principal debtors, who are called mallevadori in principalità. These can be directly compelled to payment, the first debtor being left aside.

III. Pledge and hypothec are wont to be taken for the same thing. Strictly taken, nevertheless, those contracts differ: for a pledge is of movables only, a hypothec of immovables. A pledge is defined a contract by which a movable thing is delivered to a creditor for the security of a debt. A hypothec is a contract by which an immovable thing, by a bare convention, without delivery, is obligated to a creditor for the security of a debt, so that if the other do not satisfy, satisfaction may thence be sought. A hypothec is twofold: one general, by which all goods are obligated; the other particular, by which a man obligates some determinate thing.

IV. Composition is an onerous convention by which doubtful and uncertain rights between parties are settled. This, lawfully constituted between the parties, has the same force as a judge's sentence. Wherefore, it being once carried out, restitution in integrum is not granted, unless an enormous injury appear. Would that this contract, useful to both parties, were more frequent, so many lawsuits pernicious even to the victors being dismissed.

V. QUESTION III. What is emphyteusis? ANSWER. It is a contract by which the useful dominion of an immovable thing is transferred for a long time, the direct being retained, with the burden imposed of an annual pension to be paid. The word emphyteusis is Greek, which in Latin signifies grafting or planting: because formerly untilled estates were delivered to be planted.

VI. If an emphyteuta for three years does not pay the agreed pension entire to a lay lord, and for two years to a church, by that very fact he falls under the penalty of forfeiture, and the proprietary lord can deprive him of the emphyteutic thing with all the improvements made.

VII. QUESTION IV. What is a fief? ANSWER. It is a contract by which the useful dominion of an immovable thing is transferred, the direct dominion being retained, under the burden of fidelity and of personal service. It differs from emphyteusis, because a feudatory or vassal does not pay the lord an annual pension, as an emphyteuta does, but only owes personal service of defence, aid, and fidelity, when required by the lord.

VIII. QUESTION V. What is a loan for use? ANSWER. It is the gratuitous granting of some thing as regards its use only for a fixed time. But precarium is the gratuitous granting of some thing as regards its use only, revocable at the pleasure of the grantor. Contracts of this kind are akin; they differ only in this, that a precarium can be demanded back at the pleasure of the grantor, but a loan for use only when the appointed time has elapsed.

IX. QUESTION VI. What is a deposit? ANSWER. It is a contract by which a thing is committed to another's trust for custody alone, that it may be rendered back entire. There is required the mutual consent of the depositor and of the depositary. A depositary cannot use the thing deposited without the depositor's consent. If nevertheless it be money which suffers loss from use, he can use it, provided he be always ready to render it at the depositor's pleasure. He ought to use diligence in the custody. If loss follow, he is held to recompense for grave fault only. Cloistered religious cannot undertake a deposit without the prelate's licence: the monastery is not held to compensation if the deposit perish with a private religious, or with the prelate, unless they had undertaken it with the chapter's consent. The rest, by reason of mind, are capable of receiving a deposit.

X. QUESTION VII. What is letting? ANSWER. It is an onerous contract by which the use, or the fruits, of a thing or of a person is sold for a price. Hiring is a contract by which the use of a thing or of a person is bought for a price.

XI. QUESTION VIII. Do those sin who let houses for the exercising of usuries, for harlotry? ANSWER. All the Fathers affirm it, as I have made plain elsewhere. Fr. Claude La Croix, Book 3, part 2, doubt 1, no. 1042, heaps up opposed opinions — probable, improbable, and lax — and after his manner subjects the same to the discretion of his readers, as if Pyrrhonism were Christian morality. He shows himself nevertheless to incline to the opinion teaching that such letting is lawful: because this, he says, tends proximately to the giving of a habitation, but remotely affords an occasion of sinning. This opinion, as it seems to me, is false. See what has been said where scandal was treated.

XII. QUESTION IX. What is a promise, and what is its obligation? ANSWER. It is the free and spontaneous giving of one's word concerning a thing lawful and possible. For there is required for a true promise an obligation of furnishing, out of the virtue of fidelity, that which is promised; nor does the mere will of doing suffice; and therefore it is called a giving of one's word. It is called free and spontaneous, because a promise is a gratuitous contract.

XIII. That a promise may bring in an obligation, it must be accepted by him to whom it is made. A promise confirmed by oath cannot be revoked before acceptance, because the promiser by the bond of religion binds himself not to revoke the promise, whatever some may say to the contrary. The gravity of the obligation in a gratuitous promise depends upon the intention of the promiser, who as regards this is the lawgiver.

XIV. QUESTION X. What is a donation? ANSWER. It is the liberal delivery of some thing. One is real, set in the delivery of the thing; another verbal, by which a man gives an absent thing, which is an imperfect donation, and rather a promise. Again, a donation is distributed into absolute, which is perfect, and conditional, which has a condition annexed. Lastly, one donation is between the living, which continuously transfers dominion to the donee, even while the donor lives; another is a donation by reason of death, in which a man now gives a thing, but to be possessed after death. This is revocable, the former not, a few cases excepted.

XV. Those can give who possess absolute dominion of the thing to be given. Hence religious cannot give. The causes of revoking a donation are: first, the donee's ingratitude proved in court; second, offspring afterwards received; third, if the donation be undutiful, against paternal piety toward sons, as if it injure the lawful portion owed to sons; fourth, if anything be given for a cause, and the cause do not follow.

AFTER dominion has been acquired, the first species of contracting is Promise, which indeed lays an obligation on one part; it suffers, however, before acceptance, a free faculty of revoking. One is external: another internal. One simple, another also solemn; Promises are also sometimes made for a shameful cause: how all these stand, is to be settled here in a few words.

PROMISE and Donation are AFFINES. Promise is a firm, and spontaneous giving of faith concerning a licit thing; or it is a deliberate, and spontaneous obligation of faith, of giving, or doing something, given to another concerning a licit, and good thing, pleasing to him. So the Doctors commonly. See Sotum lib. 7. de iustitia, quaest. 2. art. 1. Fagundez lib. 3. cap. 1. de contract. and the holy Doctor indicates it in 4. dist. 29. quaest. 2. and dist. 38. dub. 5. littera.

DONATION indeed is an exhibition, not of faith, but of a thing; yet to give signifies actual tradition, from D. Bonavent. in primo, dist. 18. quaest. 4.

POLLICITATIO signifies a promise on the part of the offerer only, just as a promise is on the part of both; yet they are often taken for the same thing, as you have in D. Bonaventura in 4. dist. 27. dub. 5. littera, and also donation signifies respect to the donor, and to him to whom the donation is made, as D. Bonavent. notes in primo, dist. 18. quaest. 5. Donation indeed by that very fact transfers a determinate thing from the donor to the donee, so that the thing may be called his, mine, or yours, as the holy Doctor admonishes dist. 18. citata, quaest. ultima.

DONATION indeed signifies the liberal exhibition of a gratuitous thing, as the holy Doctor teaches in the cited places, and in 2. dist. 7. part. 2. quaest. 1. ad septimum.

THEREFORE, being about to treat of the contracts one by one, I treat of Promise, which is the principle of all, and of the liberal exhibition, which is first made from promise, and which obligates the spontaneous exhibitor, just as also a promise in the internal forum indeed, if the intention of binding oneself was present; but if it has the intention not of promising, and yet promises externally, it is compelled in the external forum to fulfil, as D. Bonavent. teaches in 4. dist. 38. dub. 5. litt. and in other cited places disp. 1. quaest. 3. and commonly Sanchez lib. 1. de sponsal. disp. 5. num. 21. Caietanus, and other Thomists 2. 2. quaest. 88. art. 3. where Aragon Rebell. de oblig. iustitiae, 2. part. lib. 18. quaest. 1. Corduba sum. quaest. 156. Fagundez lib. 3. de contract. cap. 1. So also the cited quaest. and quaest. 2. disp. 1. I have shown that a promise ought to be spontaneous, but not extorted by force, fear, or fraud, lest he who extorted it carry off gain from fraud, or force, as the holy Doctor argues in the places lately cited, and with him D. Thom. 2. 2. quaest. 89. art. 7. where Caietanus, and other disciples. Sotus lib. 8. de iust. quaest. 1. art. 7. ad 3. Mercatus cap. 16. Nauar. summa, cap. 18. Molina tract. 2. disp. 267. Sylvester V. restit. Lopez 2. part. Instruct. cap. 30. Rebell. 2. part. lib. 18. quaest. 1. num. 7. Fagundez lib. 3. cap. 1.

WHENCE Fagundez infers, num. 5. Azor Tomo 1. lib. 11. cap. 7. §. tertia regula, with D. Bonavent. in speculo animae, cap. 2. and all suppose, especially the holy Doctor, in the places cited above, that he who receives what was promised, extorted by force, or fear, is bound in conscience to restore it, because he receives it unjustly.

IT IS MOST CERTAIN that breaking a promise accidentally is against justice: consider the cases in which the promiser, trusting in his promise, does not provide for himself from elsewhere, and a grave loss befalls him. See Sanchez lib. 1. de matrim. disp. 5.

There is therefore a controversy: whether an obligation of justice arises from a promise of itself.

The FIRST opinion is that of the authors who hold it to be an obligation from justice. So Sanchez lib. 1. de matrim. disp. 5. num. 20. Lessius Tom. 1. lib. 2. dub. 8. num. 55. Navarr. sum. lat. cap. 18. num. 6. Sotus lib. 7. de iustitia quaest. 2. art. 1. Covarr. in cap. quamvis pactum, part. 2. §. 4. num. 24. Angel. V. pactum, Sylvester ibi, quaest. 4. et V. Lex, quaest. 10. Rich. 4. dist. 38. quaest. 3. and others cited by Sanchez loco cit. et Dianam Parte 1. Tract. 3. miscell. resol. 9. Tannetus, however, disp. 4. quaest. 1. num. 62. holds that one is bound as it were from justice. Bassaeus, V. Promissio, is more severe.

The OPPOSITE opinion holds that it is an obligation only of fidelity. So Sotus in 4. dist. 20. quaest. 1. art. 2. Suarez de aux. disp. 2. sect. 2. Molina tract. 2. de iust. disp. 262. Azor tract. 1. lib. 11. cap. 5. Thom. 2. 2. quaest. 88. art. 1. Cajetan ibi, Fagundez lib. 3. de contract. cap. 2. Lessius num. 54. calls it probable. Firmus verbo perfidia, Leddesma Tom. 1. tract. 10. cap. 3. Fernandez in suo examine, p. p. cap. 15. §. 8. Diana loco cit. indeed hold that it does not bind gravely. This is the opinion of St. Bonaventure locis citandis.

I ASSERT, with this opinion, that a simple promise given and accepted binds only from fidelity.

It is PROVED by St. Bonaventure in 2. dist. 17. art. 2. quaest. 2. in corpore, et ad 1. with the argument used by Molina and Fagundez, because a simple promise is a free and purely liberal giving of one's faith, and proceeds from mere liberality, and hence does not confer a right of justice, unless the promiser intended expressly to bind himself to that by liberality — which is not to be believed to be intended. It is confirmed by Suarez, because a simple promise does not include by its nature any actual donation, but a pure and mere obligation of faith to give something in the future; yet this does not transfer a right in a thing, since nothing is given. It is confirmed by St. Bonaventure ibi, because a liberal promise depends on the will of the promiser, who can refuse to bind himself to justice, but only to give his faith.

You will SAY: A promise accepted passes into a pact of two, from which a civil obligation arises, which also passes to the heirs Leg. si quis argentum, §. ult. Cod. de donat. et cap. 1. de pactis.

It is ANSWERED that this happens in the external forum, if it is established by an instrument that he wished to bind himself, because since the obligation of the promiser is established, the laws presume that he wished it from justice, since his intention is not established, as St. Bonaventure warns in 4. dist. 27. art. 2. quaest. 2. ad ultimum; it is otherwise in the forum of conscience. It is proved by the Saintly Doctor also locis adductis, P. P. Tract. 1. disp. 19. quaest. 1.

I ADD, however, that this sin against fidelity is mortal, at least in the gravest matter, supposing that it binds only from fidelity, as many Doctors say cited by Fagundez; most consider such matter four times greater than the matter of theft, cited by Bassaeus.

I SUPPOSE that a promise made merely internally to God, or to the Saints, binds, as all confess with St. Bonaventure in 4. dist. 38.

AS TO our question, which is indeed about the forum of conscience alone.

The FIRST opinion holds that it binds. So Sanchez lib. 1. de matrim. disp. 3. who calls it probable. Aragon 2. 2. quaest. 88. art. 3. Angles in flor. part. 2. quaest. 1. de voto, art. 2. diff. 4. Leddesma 2. 4. quaest. 18. art. 1. where, however, he is problematic, indeed at length inclines to the contrary.

Hence Diana deduces that such a person is bound to reveal and fulfill his promise, and consequently that the one to whom the promise was made, if he knows it and owes something to the promiser, which he cannot obtain in judgment, can make himself a secret compensation. The same think Mendoza lib. 1. de pactis, cap. 1. Palacius de contract. lib. 5. cap. 12. Sanctarellus var. resol. p. p. quaest. 66. num. 49.

The SECOND opinion denies that a merely internal promise binds. So D. Thom. 2. 2. quaest. 88. art. 1. et in 4. dist. 38. quaest. 1. art. 1. quaest. 2. Tanner. disp. 4. quaest. 1. dub. 5. num. 59. Basil. Poncias de matrim. lib. 2. cap. 6. num. 9. Panormit. in cap. litteraturam, de voto, num. 2. Turrecrem. in cap. 1. 17. quaest. 1. §. 12. Abul. ad cap. 5. Levit. quaest. 4. et ad cap. 30. Numer. quaest. 44. Rosella V. votum 1. Tabiena ibi §. 4. and Clarius V. dispensatio, Molina Tom. 2. de iustitia, disp. 266. Lessius lib. 2. cap. 18. dub. 5. num. 28. Rebeilius 2. part. lib. 18. quaest. 1. Fagundez lib. 3. de contract. cap. 1. num. 4. Bassaeus V Promissio, num. 5.

This is the opinion of D. Bonaventura 4. dist. 29. quaest. 2. ad 2.

It is Proved by the Saintly Doctor with the argument used by Fagundez. The obligation of one man to another must be proportioned to a human manner; for man communicates with man only through external expressions, whence it comes about that the obligation of one to another cannot be made without the concurrence of the will of both; but while the promise is internal, it is indeed unknown to the promisee, but is a mere volition of one party, not accepted by the other, and hence cannot be a binding donation. So also others argue.

You will say l. 3. §. manumittenda, ff. de acquir. possess. possession can be lost by mere intention.

Fagundez answers num. 8. more is required for acquiring a right than for losing it.

The other things which the adversaries heap up only prove that an internal promise is required as the foundation of a human obligation, but they do not show that it suffices.

Nor do they prove that the act of conscience compels one to manifest that internal act, because from the beginning it was imperfect, and therefore essentially invalid as to its being.

You will say that with an oath added, you are bound to stand to him in conscience, as also by a vow.

Fagundez answers num. 6. ex D. Bonav. 4. dist. 28. dub. 2. that this happens from another title, reverence toward God, to which even an internal promise, and attestation, if made in a competent manner, is fitting, and therefore valid.

I ASSERT with D. Bonaventura in 4. dist. 29. q. 2. ad 2. that a promise made externally, even if express, before it is accepted does not bind by any right, and can be revoked. Sotus lib. 3. de iustitia, q. 5. art. 3. follows, Tiraquellus ad leg. si unquam, Cod. de revoc. donat. v. libertis, num 54. Molina de primog. lib. 4. cap. 2. n. 62. Covarr. in c. Quamvis pactum, 2. part. §. 4 n. 15. Gomez tract. 2. var. cap. 9. Panormit. in c. Cum inter universas, de elect. Felinus in c. 1. de pactis, a n. 7. Fagundez lib. 3. de contract. c. 4. Less. lib. 2. c. 18. dub. 6. n. 35. et 38. Molina Tract. 2. de iust. disp. 263. Tanner. disp. 4. q. 1. n. 58. and others generally, with Bass. eo. v. Promissio, num. 5.

It is clear by the argument of St. Bonaventure, because an obligation of one to another is not contracted unless the will and consent of both concur.

It is next Proved by Caesarean law leg. 1. ff. de pollicitat. leg. 3. ff. eadem, leg. 2. §. sed si quis, et leg. obsenti, ff. ae donat.

By Canonical law Covarruvas, Felinus, and Panormitanus, cited above, prove it.

By Natural law the same is proved by Covarruvas, Gomez, Molina, Lessius above, Bartol. ad leg. si unus ex familia, §. pactum, ff. de pactis.

Whence they deduce, with St. Bonaventure, that it is licit to withdraw from betrothals thus promised.

Many make an exception for promises for pious causes: they prove it, because in lege 1. ff. de pollicit. the donation made to a city for restoring its ruins is excepted.

Others, however, deny that these are excepted, according to leg. Hoc iure, §. si quis dederit, ff. de donat. et leg. 3. ff. de servis exposit. et leg. 1. Cod. si mancipium.

Others make an exception for donations made to an infant, by the argument of leg. Iubemus, Cod. de emancipat. liberorum. So Decius consil. 245. Molina de primog. lib. 4. cap. 2. num. 76. but Fagundez num 8. does not dare to adduce that law, which speaks only of emancipated persons.

It is truly DOUBTFUL: whether a promise made to one present and silent is valid, because in favorable cases he who is silent seems to consent.

So affirm Iulius Clar. §. donatio, quaest. 14. Molina de primog. lib. 4. cap. 2. Fagundez num. 12. Cruz in directotio conscientiae, p. prima, pract. 7. art. 1. disp. 1. Diana Tract. 5. miscell. resol. 116. Covarr. in rubr. de testam. part. 3. num. 13. ex leg. qui patitur, ff. mandati.

When Caius, a missionary priest, had recently been transferred to another parish, his former parishioners wished to make a gift as a testimony of their grateful spirit. Titius, one of them, attended a meeting of the parishioners at which this was determined, and, moved after hearing the praises of Caius, promised that he would give five pounds sterling. On the next day, however, because the merits of Caius did not seem so great and the sum of money promised appeared large, Titius changed his mind and determined to give nothing. But because his conscience was not at rest, he disclosed the whole matter in his next confession to Julius, who had succeeded Caius. When questioned by Julius, Titius asserted that he had had no intention of binding himself in justice; hence the confessor began to doubt whether he was constrained under sin by any strict obligation—indeed, not under grave sin because it was not from justice, nor under light sin because, as he said, a light obligation has no proportion with grave matter. Before he gives Titius an answer, Julius asks:

1. What is a promise, and what kind of obligation does it introduce?

2. How does the obligation of a promise cease?

3. Does Julius rightly apply his principles?

4. What is to be said of the case?

1. What is a promise and what sort of obligation does it impose? A promise is a unilateral and gratuitous contract by which one person binds himself to do something for another. The quality of the obligation which a simple promise imposes depends on the intention of the promisor. If he intends to give the promisee a strict right to what he promised, the obligation to fulfil the promise is one of justice; otherwise it will be one of fidelity.¹

1 Manual of Moral Theology, vol. i, p. 496.

2. How does the obligation of a promise cease?

In general a simple promise will cease to bind if some event takes place or becomes known subsequently which would have prevented the promisor from making the promise if it had been known beforehand. A fortiori it will cease to bind if the thing promised become impossible, wrong, or useless, or if anything happen which would suffice to discharge even a bilateral and onerous contract.

3. Does Julius apply his principles correctly?

No; he does not. The doctrine which he applies to this case has reference to the question whether there is an obligation to make restitution when grave harm has been caused by slight negligence. In that case many theologians hold that there is no obligation to make restitution because the unjust act was not perfectly voluntary, and because restitution in such a case has the nature of a penalty, and a grave penalty should not be inflicted for a slight fault. In our case the question concerns the obligation of fidelity which binds under venial sin in great as in small matters.²

2 St. Alphonsus, book iii, no. 552; Lugo, De Justitia, disputation viii, no. 58.

4. The case. Titius has no solid reason for not keeping to his promise, which was made seriously after deliberation about the matter, as we must suppose. He will therefore be bound at least under pain of venial sin to give the five pounds which he promised.³

3 Lugo, De Justitia, disputation xxiii, no. 89.

Claudina promises her husband, on the day of their marriage, that she will make over to him the sum of three thousand dollars, as soon as he shall have served out the term of his enlistment in the army. In the meanwhile, however, her husband becomes addicted to drink and before the term of his enlistment has expired is a confirmed drunkard. Claudina refuses to keep her promise. She proposes to keep the money herself and use it for her children. Her husband, however, insists that she keep her promise to him and give him the money. What is Claudina to do under these circumstances?

Solution.—Claudina's promise has all the necessary qualities of a binding contract, and it imposes on her, therefore, the obligation of keeping it, in the event of the husband complying with the conditions of the promise. As the case stands, it is not clear what use Claudina's husband is to make of the money once it comes into his possession. If Claudina intended that her husband should be perfectly free in the use of the money for whatever purpose he might choose, and this seems to have been the case, then it is certain that Claudina would never have made the promise had she foreseen the circumstance of her husband becoming a drunkard. The fact that she postponed the fulfilment of her promise until her husband should have completed the term of his enlistment seems to prove that she made this reservation expressly. Since she intended, therefore, to bind herself by her promise only on the condition that her husband should remain a good, decent man, she is, under the circumstances, absolved from all further obligation toward her husband in the matter. For a so-called "contractus gratuitus unilateralis" is considered void when the circumstances of the person or thing have so changed that it may be taken for granted that from the start the obligation imposed by the contract was not to be extended to this case. The wife may rest perfectly easy in her conscience, and all the more so, since she intends to use the money for her children, whereas, the father by his drinking is prevented from taking the necessary care of his family.

But should not the wife, in the interest of domestic peace, give way to her husband and let him have the money? No; because it is not she, but the husband who is disturbing the peace of the family, and if she gives him the money promised she only lends him new means for indulging his habit of drink and further destroying the peace of the home.

Only in case the conveying of the money to the husband did not give him the free disposition of it, neither now nor later, could the wife be advised to make it over to him. But in that case the husband would have no further interest in the matter. The wife may, if she pleases, renew her promise to her husband, but make its fulfilment depend on his thorough and sincere reform.

Case.—Peter, an aged man, without wife or children, promises to his faithful servant a legacy of fifteen hundred dollars to induce her to remain in his service. This legacy he actually puts in his will. Eventually he falls grievously ill and feels the approach of death. Now he becomes uneasy in his mind and fears that his

‘relatives, the legal heirs, will be indignant over the legacy to his servant, and he decides to lessen the amount. He mentioned the matter to his servant and she is urgently asked to content herself with half the amount, and, furthermore, she is requested to inform his heirs of this change at the reading of the will. The servant does not take kindly to this proposition, but gives her consent in order to ease her dying master’s mind. After his death, however, she lets the heirs pay her the full legacy, which they cheerfully do, considering it proper that so faithful a servant should be provided for in her old age. Now, however, the servant feels troubled in conscience, because she has not kept her promise; and she asks her confessor whether she may keep the whole legacy.

Solution.—Above all it is necessary to ascertain whether the promise is binding under the circumstances mentioned. The servant’s dislike of the proposition was overcome only by sympathy for the dying man, and hence her consent might be considered not entirely voluntary. On the other hand, the fact that she gave her consent with a “heavy heart,” as she says, proves that she was fully aware of what she was doing: and that suffices to render the consent a voluntary one. The fact that a strong emotion influences an act does not take away from it the free will, if the person’s judgment is sufficiently clear to realize the nature of the act. Otherwise most mortal sins might not be mortal sins; for indeed most of them are committed in the heat of passion and yet free will is essential in mortal sin. Hence Lugo says (De iust. et iure, disp. 23, n. 18): “The common and true opinion teaches that, for an obligation arising from a promise, full awareness is required and sufficient—the awareness that would suffice for mortal sin—even if the promise is made in the heat of anger or another passion.”

Of greater importance here is another fact that would appear as opposed to the voluntary character of the promise. There was present an error, namely, the supposition that the heirs would be displeased with the legacy. This error, it is true, was an error of the dying man, and the direct cause of his request, but the same error, no doubt, influenced the servant’s promise; otherwise she would surely have given her consent conditionally, namely, that she would agree to a smaller amount if the heirs would really show displeasure. We have here, therefore, an error causam dans contractui, and such an one makes every contractus gratuitus a failure, at least in foro conscientiae (Compare Lehmkuhl, Theol. Mor., 1. 1063). Therefore, the servant’s promise is not binding.

If the old man’s supposition had not proved an error, if the heirs had really shown displeasure at the legacy, the promise would have been binding. The question then would be, does it involve an obligation of strict justice, with obligation to make restitution, or merely an obligation of fidelity (obligatio fidelitatis) involving no obligation of restitution? Either may be the case in a promise. “I promise to give you this and that” may mean I pledge my word, my fidelity, that I will give you this thing; but it may also mean I invest you with the right to demand this thing from me at the proper time. The latter meaning is not the usual nature of a promise as such, hence such meaning must be expressed in some positive way in order to be valid. We speak, indeed, in the case of a promise about the “right” to the thing promised. However, this is a right only in an abstract sense, and is really nothing more than the right to say to the one who made the promise: “Either you keep your word, or I must henceforth regard you as an unreliable person.” The servant had given her word that at the reading of the will she would renounce part of her legacy. Accordingly there was only an obligation of fidelity, in the event that the heirs would be displeased with her legacy. The obligation of restitution would not be present in her case.

Case.—Longinus, a wealthy citizen of Delaware and a bachelor, gave to Helena, his sister, who was a widow, a valuable piece of property, accepting her promise to give five hundred dollars a year to St. Eusebius’ Orphan Asylum. Within a month Longinus died suddenly. The transfer was then contested by Veronica, another widowed sister, on some legal technicality, and the courts ‘decided against Helena. The property was then divided equally between Helena and Veronica. Now Helena wants to know whether she is bound to pay the five hundred dollars or not, or does she fulfil her end of the bargain by paying only one-half of that amount.

Question.—How far is she obliged in conscience?

Solution.—First of all, is she obliged to pay the five hundred dollars?

No, she is not. The agreement between herself and her brother, while presumably a valid one when made, was in point of fact an invalid one, for the courts discovered a secret defect which robbed it of its legality. It is evident, then, that Longinus did not keep his part of the contract, which called for an actual and valid conveyance of the property to his sister; and though we cannot accuse him of lack of good faith, yet his error, a costly one to Helena, since it deprived her of one-half the property, affected the substance of the contract, and thereby relieved Helena of the obligation she assumed when she consented to her brother’s proposal. As, then, she did not receive what her brother promised and intended to give her, she is not bound to carry out his wish as to the five hundred dollars.

(2) Since she received one-half of the very property in question, is she obliged to pay one-half the stipulated sum? No, she is not bound to pay even two hundred and fifty dollars. As no part of the agreement was actualized, in no way can she be compelled to pay any part of the money to the Orphan Asylum. While it is true she did come into possession of a large part of the property involved, yet she became possessed of it as an heir at law and under the terms of the general law whereby the next of kin are pro rata heirs to the estate of one who dies intestate. Not coming into possession of this special donation invalidly made by her brother, she cannot be said to be bound for one half the amount.

(3) Is Veronica held to pay the five hundred or the two hundred and fifty dollars? No, we can allege no valid reason why she is under obligation to pay a single cent of the money, for she was not the cause of the failure of the agreement between her brother and sister.

She has in this matter violated no claim of justice, hence she is not bound to make up for any loss suffered by the Orphan Asylum, by reason of the decision of the civil court. If the sisters agree to give the sum of five hundred dollars or any part of it to the Orphan Asylum, they do so from motives of charity, or out of respect for the wishes of their dead brother. Neither can this wish on the part of Longinus be held to be a pious bequest or donation. The very essence of such a donation requires that it be given directly and absolutely to pious causes or be committed to some one else, with the express mandate that it be handed over to the pious cause specified.

No such donation is expressed or implied in the given case, and though the Orphan Asylum does as a matter of fact lose the yearly gratuity, this happens through no fault of those who inherit the estate of the decedent. It must be said, therefore, that both of the sisters can act as they please in this matter with a clear conscience. They might be advised to execute the wish of their defunct relative, but this is another matter. They cannot be compelled to do so.

SOME of the commentators on the new Code of Canon Law are in grave difficulties over the right interpretation of Canon 1017. It is laid down in that Canon that no other engagements to marry are valid but those that are in writing signed by the parties themselves and by the parish priest or the local Ordinary or two witnesses. The Canon, furthermore, provides that there lies no action in the ecclesiastical courts for breach of promise of marriage, even when the contract was expressed in writing, duly signed, and there was no good reason for breaking it off. All that is conceded to the aggrieved party is an action for damages if there were any. The difficulty is further increased by an answer to a question proposed to the Pontifical Commission for the interpretation of the Code. The case was put of a man who was going to marry a third party although he had been previously engaged to another girl, and it was asked whether, if this girl brought an action against him for damages, the celebration of marriage with the third party would be suspended till the issue of the trial was determined. The answer was that no action lay for the investigation of the question whether the breach of promise was justified or not, and that the celebration of the marriage with the third party would not be suspended by the trial of the action for damages.

The law of the Church as thus stated gives rise to some practical difficulties. Let us suppose that a parish priest is asked to publish the banns of marriage between two of his parishioners, A and B. On the banns being published a girl, C, comes to the parish priest and shows a written engagement to marry duly signed by A and herself and two witnesses. Let us suppose that the parish priest knows all the circumstances of the case out of confession and that A has no good reason for violating his engagement with C. Nevertheless, he must tell C that she has no remedy, that she may claim damages if she likes, but that such a claim cannot suspend or delay the marriage of A and B. The contract between A and C was valid, and produced a grave obligation in justice to fulfil it, nor has A any good reason for violating it. If A goes to confession to the parish priest the parish priest must refuse him absolution, for he is guilty of a grave sin and is unrepentant. But outside the confessional he is obliged to publish the banns of marriage between A and B, nor can the celebration of the marriage be deferred in consequence of the just complaints of C. Is not the Church bound to uphold the moral law and protect the rights of the innocent ?

If it is put in that way the difficulty can be made to look formidable enough. But we must look at the question from other points of view.

Perfect liberty of marriage is a matter of great importance for the public good. A marriage into which one of the parties has been forced can scarcely turn out well. No one should be forced to marry against his will. The laws of many modern states refuse to grant actions at law for breach of promise of marriage. The Church’s legislation in this matter is apparently suggested by the similar laws of those modern states. For motives concerning the public good the Church refuses to force anyone to marry against his will. She is justified in doing that, even though occasionally the rights of individuals are not vindicated in consequence. Private advantage must yield to the demands of the public welfare. When the engagement was entered into the provisions of the law were known, the parties knew that the law granted no redress for any failure to fulfil the contract, and the contract was made with that knowledge in the minds of both parties to it. They cannot, then, complain that an injustice is done them by the law when it merely denies a right of action to enforce the contract. To refuse to help a party to protect his rights is not to deny or abrogate his rights. Public authorities are not bound to protect all the rights of their subjects.

English law refuses to grant an action at law for the recovery of a debt barred by lapse of time. The law does not extinguish the debt when six years have elapsed from the time when payment became due. It regards the debt as still owing. It will support the action of a creditor who appropriates to the payment of a debt barred by lapse of time an unappropriated payment made by the debtor. An executor creditor may pay himself a debt barred by lapse of time, and the law will uphold him. So that laws which deny an action for the protection of a right do not of themselves take away the right, they leave it where they found it; it remains a right of natural obligation. They are not unjust laws if they are enacted on account of grave reasons connected with the public welfare. If, according to the laws of the Church, two parties are free to marry, their parish priest is bound to assist at their marriage; no option is given him. He may know that one or both of the parties are in a state of sin and unrepentant, and therefore unfit to receive absolution. He will do what he can to put them in better dispositions, but if he does not succeed in his endeavour he must nevertheless assist at the marriage. Otherwise he would not do his duty as parish priest and authoritative witness of the marriage on behalf of the Church.

I think that these considerations explain and justify Canon 1017, and show that there is no real conflict between the parish priest’s duties as a confessor and as the Church’s witness of marriage.