DONAZIONE. — It is the act by which, out of a spirit of liberality, a person deprives himself of a right of his own or assumes an obligation for the benefit of another. The constitutive elements of this institution are: impoverishment of the donor, the corresponding increase in the estate of the donee, and the spirit of liberality (animus donandi).
In Roman law, depending on whether one wished to establish a right over a thing, even going so far as to transfer ownership, or wished to effect the assignment of a claim or release from it, donations were called real, obligatory, or liberatory, and were effected in the same forms required for the corresponding onerous acts. They could be made subject to an obligation of performance (sub modo), constitute a recompense for services rendered by the donee to the donor (remuneratory), or be made in contemplation of death (mortis causa).
The oldest measure containing special provisions concerning donations was probably the lex Cincia de donis et muneribus (204 B.C.), which prohibited donations beyond a certain amount (ultra modum), with the exception of those between persons belonging to a specified category, including, for example, persons related by kinship (personae exceptae). It was a lex imperfecta, because it merely prohibited the act without providing a sanction. During the period of formulary procedure, the use of the exceptio legis Cinciae was granted, to be raised against an action for performance of the promise. Later, the heirs were deprived of the right to avail themselves of this exception if the donor had not changed his intention before dying. This law fell into disuse in the Greco-Roman period, and the donation was subjected to the requirement of being drawn up in writing and transcribed in public registers (insinuatio), which under Justinian was obligatory for donations exceeding 500 solidi in value.
The donation could be revoked for non-performance of the charge imposed on the donee, in the case of donations by a patron to a freedman upon the subsequent birth of children; and under Justinian the donor was granted a personal action for revocation on account of the donee’s ingratitude. Revocation was not permitted for remuneratory donations; those mortis causa were revocable if the donee predeceased the donor or at the donor’s discretion.
Canon law, which in matters of contracts had adopted Roman law, incorporated into the CIC the rules of civil law, provided that they were not contrary to divine law or to canonical laws that expressly provided otherwise (can. 1529). Accordingly, the measures of the civil authority by virtue of which a professed religious could not acquire property for himself or for the monastery have no force in the ecclesiastical forum (can. 582); in the case of donations to pious causes, only natural and canonical capacity is required (can. 1513), and observance of the formalities of civil law is not strictly necessary (can. 1516); prelates and rectors of churches may not donate considerable portions of the movable property of the churches entrusted to them without a just cause of remuneration, piety, or Christian charity, and their donations may be revoked by their successors (can. 1535); superiors of religious Orders must likewise abstain from making them (can. 537). Until the contrary is proved, donations made to the rectors of churches are presumed to have been made to the churches themselves (can. 1536 § 1). Without the permission of the Ordinary, a donation made to the rector of a church may not be refused; and, if it is unlawfully refused, an action for restitutio in integrum or for compensation for the damage suffered by the church as a consequence of the refusal is admitted (can. 1536 § 2 and 3). A donation made to the church or to pious causes may not be revoked on account of the ingratitude of the administrator (can. 1536 § 4).
The current Italian Civil Code has replaced the definition in art. 1050 of the 1865 Code with the following: “A donation is the contract by which, out of a spirit of liberality, one party enriches the other, disposing in its favor of a right of his own or assuming an obligation toward it” (art. 769), thereby distinguishing, among acts of liberality, those having a contractual character and for which solemn form is required.
A donation of future property is void (art. 771), and anyone lacking full capacity to dispose of his own property is incapable of making a donation (art. 774). A mandate is void if it grants another person the power to designate the donee or to determine the object of the donation (art. 778). Donations by a parent to a natural child are not permitted if the parentage cannot be recognized or declared (art. 780), nor are donations between spouses during the marriage (art. 781).
On pain of nullity, the form of a public instrument is required, and, for the donation to be valid, it must be accepted: before its perfection, it may be revoked by either the donor or the donee. In the case of donations made to juridical persons whose acceptance is subject to governmental authorization, however, the donor may not revoke his declaration after the application for authorization has been notified to him (art. 783). A public instrument is not required for donations of movable property of modest value, which are instead perfected by delivery (art. 783).
A donation may be challenged for an error of fact or law concerning the motive stated in the instrument (art. 787), and is void if the motive stated in the instrument, which was the sole inducement to the liberality, is unlawful (art. 788). A reversion clause concerning the donated property may be stipulated (art. 791), and a charge may be attached (art. 793), which is deemed unwritten if unlawful or impossible and if it was not the sole inducement to the donation (art. 794). Every donation is revocable for ingratitude and for the subsequent birth of children (art. 800), with the exception of remuneratory donations and those made in contemplation of a future marriage (art. 805).