MODE. - A clause appended to a contract or to an act of liberality, in order to impose a burden on one of the contracting parties or on the beneficiary of the act of liberality.
As an accidental element, the mode or charge enters into various juridical transactions (donation, legacy, institution of heir, acts of liberality in general), with the effect, normally, of devoting part of the benefit of the liberality to third parties extraneous to the transaction or to purposes of public utility.
The content of the modal disposition is expressed generally, in the Latin language, with the conjunction ut; in the Italian language with "perché", "ma", etc. (for example: "Lascio a Tizio un campo, perché faccia celebrare ogni anno per me tre Messe"; or: "ma Tizio farà celebrare" etc.).
The apposition of the mode does not modify those effects which are typical of the transaction, but adds others to them. It is therefore distinguished from the condition (v.) because, while the latter is a limitation placed upon the effects of the transaction, which are made to depend on the occurrence of a future and uncertain event, the mode is an act of will simply accessory to the principal one that determines the act of liberality, which is carried out immediately, without any need to await the fulfillment of the charge (the value of the act, that is, does not depend on the fulfillment of the charge, even if sometimes, for reasons of expediency, the legislator provides that non-fulfillment brings about the dissolution of the principal disposition). The mode is then distinguished from the counter-performance in onerous contracts, in that, while performance and counter-performance are made one in view of the other and are therefore on the same plane, the charge is something that stands by itself, secondary with respect to the act of liberality, in which it has its cause.
In itself the non-fulfillment of the mode would give only to interested parties the right to demand fulfillment of the obligation contained in it; in other words the mode does not dissolve, but compels. When the dissolution of the act is provided for by the benefactor or by the contracting party for non-fulfillment of the mode or of the charge, then one falls into the figure of the improper condition or reservation, which entails the formulation of a hypothesis which, if it does not correspond to reality, produces the nullity of the act subordinated to it (cf. Italian Civil Code, art. 793).
This is the ground where most easily in practice the doubt may arise whether it is a question of a mode or of an improper condition. And the resolution can be given only by the will of the donor or contracting party; by it, as canonical jurisprudence holds, the difference between mode and improper condition is to be measured.
Bibliography4 works
Pietro Palazzini