MODO. — 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 m. or charge enters into various juridical transactions (donation, legacy, institution of an heir, acts of liberality in general), normally with the effect of assigning part of the advantage of the liberality to third parties outside the transaction or to purposes of public utility.
The content of the modal provision is generally expressed, in Latin, with the conjunction ut; in Italian, with « perché », « ma », etc. (e.g.: « I leave Tizio a field, so that he may have three Masses celebrated for me every year »; or: « but Tizio shall have them celebrated », etc.).
The addition of the m. does not modify the typical effects of the transaction, but adds
others to them. It condition (v.) because, whereas the latter is a limitation placed upon the effects of the transaction, which are made dependent upon the occurrence of a future and uncertain event, the m. is a volitional act simply ancillary to the principal act that determines the act of liberality, which takes effect immediately, without having to await fulfilment of the charge (that is, the validity of the act does not depend upon fulfilment of the charge, even though at times, for reasons of expediency, the legislator provides that non-fulfilment shall cause the rescission of the principal provision). The m. also differs from the counter-performance in onerous contracts, since, whereas performance and counter-performance are made each in view of the other and are therefore on the same level, the charge is something standing on its own, secondary in relation to the act of liberality, in which it has its cause.
In itself, non-fulfilment of the m. would give those having an interest only the right to demand fulfilment of the obligation contained therein; in other words, the m. does not rescind,
This is the area in which, in practice, doubt may most easily arise as to whether the matter concerns an m. or an improper condition. And the resolution can be supplied only by the will of the donor or contracting party; according to that will, as canon-law jurisprudence holds, the difference between m. and improper condition must be assessed.