DONATION. - It is the act by which, out of a spirit of liberality, a person deprives himself of a right of his or assumes an obligation for the benefit of another. The constituent elements of this institution are: the impoverishment of the donor, the corresponding increase in the patrimony of the donee, and the spirit of liberality (animus donandi).
In Roman law, according as one wished to create a right over a thing, going even as far as the attribution of ownership, or wished to effect the assignment of a credit or release from it, donations were called real, obligatory or liberatory, and were effected with the same forms required for the corresponding acts for consideration. They could be made subject to the obligation of a performance (sub modo), constitute a reward for services rendered by the donee to the donor (remuneratory), or be made in anticipation of death (mortis causa).
The oldest measure containing special provisions for donations was probably the lex Cincia de donis et muneribus (204 B.C.), which prohibited donations beyond a certain measure (ultra modum), with the exception of those between persons of a determined category, comprising, for example, those bound by kinship (personae exceptae). It was a lex imperfecta, because it limited itself to prohibiting the act without providing a sanction. During the period of the formulary procedure, the use of the exceptio legis Cinciae was granted, to be opposed to the action for fulfillment of the promise. Later, the faculty of availing themselves of this exception was withdrawn from the heirs, if the donor had not changed his will before dying. This law fell into disuse in the Greco-Roman age, and the donation was subjected to the obligation of being drawn up in writing and transcribed in the public registers (insinuatio), which under Justinian was obligatory for donations of a value greater than 500 solidi.
The donation could be revoked for non-fulfillment of the charge imposed on the donee, in the case of donations from a patron to a freedman, for the subsequent birth of children, and with Justinian the personal action of revocation was granted to the donor for ingratitude of the donee. Revocation was not admitted for remuneratory donations; those mortis causa were revocable for the predecease of the donee or at the discretion of the donor.
Canon law, which in matters of contracts had adopted Roman law as its own, adopted in the CIC the norms of civil law, provided they are not contrary to divine law or to canonical laws that expressly provide otherwise (can. 1529). Therefore, the measures of civil authority have no force in the ecclesiastical forum, by virtue of which a professed religious could not acquire for himself or for the monastery (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 goods of the churches entrusted to them, without a just cause of remuneration, piety or Christian charity, and their donations are revocable by their successors (can. 1535); superiors of religious Orders must likewise refrain from doing so (can. 537). Until proof to the contrary, donations made to the rectors of churches are presumed to have been made to the churches (can. 1536 § 1). Without the license of the Ordinary, a donation made to the rector of a church cannot be refused, and, if it is refused illegitimately, an action is admitted for restitutio in integrum or for compensation for the damages suffered by the church as a consequence of the refusal (can. 1536 §§ 2 and 3). A donation made to a church or to pious causes cannot be revoked for ingratitude of the administrator (can. 1536 § 4).
The current Italian Civil Code has replaced the definition of art. 1050 of the Code of 1865 with the following: "Donation is the contract by which, out of a spirit of liberality, one party enriches the other, disposing in favor of the latter of a right of his or assuming toward the same an obligation" (art. 769), thus distinguishing, among acts of liberality, those that have a contractual character and for which the solemn form is required.
A donation of future goods is null (art. 771), and anyone who does not have full capacity to dispose of his own goods is incapable of donating (art. 774). A mandate is null by which the faculty is attributed to others of designating the person of the donee or of determining the object of the donation (art. 778). Donations from a parent to a natural child are not admitted, if the filiation cannot be acknowledged or declared (art. 780), nor are those between spouses during marriage (art. 781).
The form of the public act is required, under penalty of nullity, and the donation, in order to have validity, must be accepted: before its perfection it can be revoked by the donor and by the donee. However, for donations made to juridical persons, whose acceptance is subject to governmental authorization, the donor cannot revoke his declaration after the application directed at obtaining the authorization has been notified to him (art. 783). The public act is not required for donations of movable goods of modest value, which are instead perfected by delivery (art. 783).
The donation can be challenged for error of fact and of law as to the motive resulting from the act (art. 787), and is null if the motive, resulting from the act and which was the sole moving cause of the liberality, is unlawful (art. 788). A pact of reversion of the donated things may be stipulated (art. 791), and a charge may be imposed (art. 793), which is considered as not imposed if unlawful or impossible and if it was not the sole moving cause of the donation (art. 794). Every donation is revocable for ingratitude and for the subsequent birth of children (art. 800), with the exception of remuneratory ones and those made in consideration of a future marriage (art. 805).
Bibliography9 works
Giulio Pacelli