Palladium theologicum, Tomus quintus: De virtutibus

DONATION also is as it were a contract, therefore we treat of it after promise; but both are called as it were contracts, because they proceed from mere liberality, and place the obligation on one side only, in whose power it is to annul it, until the thing donated, or promised, passes into the power of the other. But lest there be too great license in giving, or rather in throwing away one's goods, the Laws determine the manners and the persons in which donations are valid.

The action of GIVING is called donation, as the Jurisconsult says leg. senatus. §. Donatio, ff. de donatione causa mortis. Donation is therefore a free gift, and a giving, as D. Bonaventure teaches in the places adduced, at the beginning of disput. 3. and on ad 7. Lucae in these words: Cum non haberent, unde redderent, donavit utrique.

Donation, however, is made in TWO ways. First, by transferring the right by words, saying: I give you my horse, which I have at home. And although this naturally suffices for transferring dominion from the nature of the thing, nevertheless positive law requires the other manner of donation, by the actual handing over of the thing, ex Leg. Traditionibus, Cod. de Pactis, ibi: Traditionibus dominia rerum, non nudis pactis transferuntur. See Bonacina de contr. disp. 3. quaest. 12. part. 1.

That donation is a NAMED contract, the Doctors teach commonly, cited by Fagundez lib. 4. de contract. cap. 1. num. 6.

Donation is DIVIDED, however, into Absolute and Conditional, under which is included donation for a day.

A CONDITIONAL donation is a true donation, where the condition is honest, and does not destroy the substance of the donation, as I said de contractibus in genere, cum D. Bonavent. in 4. dist. 28. quaest. 3. and the Gloss has it in leg. 1. in principio, ff. de donationibus, Curtius the younger in leg. 3. num. 73. ff. si certum petat. Iulius Clarus §. Donatio, quaest. 2. Fagundez lib. 4. cap. 2.

A donation FOR a day certainly to come, but uncertain when it will come, is valid, for instance if I give you my house for the day of my death, which donation induces an obligation to hand over the thing, but not before that day leg. omnis stipulatio, versu in diem, ff. de verborum obligatione, et leg. cedere diem, ff. de verb. significat. et leg. certi condictio in principio, and from the Gloss ibi, V. Caeterum, ff. si certum petatur, Molina disput. 284. § 567. Fagundez loco citato.

HENCE you can draw the difference between a donation for a day and a bequest for a day, for a donation obliges at once, and becomes irrevocable; but a bequest becomes irrevocable only at death, leg. si pupillus, §. qui sub conditione, ff. de donationibus, et ex lib. 12. et 17. tit. 15. part. 5. Molina teaches disp. 284 § illud observa. Therefore if the legatee dies before the testator, nothing of his is owed to the heirs: but if the donee dies before that day fixed for the handing over of the thing, the right passes to the heirs.

Donation is DIVIDED also into merely gratuitous, and remuneratory, or antidotal, which is rather called compensation leg. Attilius Regulus, ff. de donat. and Reinosus observat. 31 Covarr. in cap. cum in offic. de testam. num 10. teach there, Cevallos tract. 1. commun. contra communes, quaest. 273. num. 11. Mascardus de probat. concl. 1236. num. 61.

This donation, however, is valid, even if the merits are unknown from elsewhere, and are proved only by the expression of the donor, for no one can know benefits better than he who received them. So Petrus Barbosa Tom. 2. leg. quae dotis 34. ff. soluto matrim. num. 56. Iulius Clarus §. donatio, quaest. 3. Curtius the younger consil. 142. and thus the Parliament of Delphinatus judged, as Guy Papa attests decis. 95. et Claro already number 2.

Merits obliging from justice, however, are not pre-required, but it suffices if the donation is made by the judgment of a prudent donor from the debt of a grateful mind, as the Doctors teach commonly, Iulius Clarus loco cit. Covarruvas, and Socin. num. 1. Molina disp. 244. Sanchez tract. 1. de matrim. lib. 6. disp. 6. Menoch. de praesumpt. lib. 4. praesumpt. 67. a num. 1.

There is also ANOTHER donation indicated above, which is called Causa mortis, and it is a kind of liberal giving, or disposition of the will, from consideration of death, or of the danger of death, present or future. So Sylvester teaches V. donatio 4. num. 1. and it is confirmed by death alone without the addition of inheriting, as when a donation causa mortis is made to one present and accepting. For then, for its confirmation, the addition is not required; and in this it is distinguished from the other bequests and fideicommissa, which are not confirmed by death alone, but require the addition, as Bartol. teaches in leg. et in mortis, ff. de donat. causa mortis, Molina de primog. lib. 1. cap. 12. num. 14. Alexand. in leg. sciendum, ff. de legatis 1. and the Doctors commonly, cited by Fagundez lib. 4. cap. 5.

This kind differs, however, from a donation inter vivos, because the donor causa mortis wishes the thing rather for himself, while he lives, than for the donee: but in a donation inter vivos, he wishes the thing rather for the donee.

NOTE, however, that this donation ought to be liberal, and therefore not made by one freely striking fear of death in an agent in order to extort the donation; otherwise it will be invalid, as I said disput. 1. quaest. 4.

ALL those, and those alone, can give, who have the faculty of alienating with dominion.

FIRST there is a doubt about wives; whether they can give from their Paraphernalia goods, which they brought with them beyond the dowry, and from those which they acquire by their work and other weavings and industries.

WE RESPOND with D. Bonaventure in 4. dist. 15. part. 2. art. 2. quaest. 1. D. Thomas 2. 2. quaest. 32. art. 8. ad 2. Paludanus, Gabriel, Richardus, Sylvester, Angelus, and others cited by Molina Tomus 2. de iustitia, disput. 274. affirmatively, yet standing on the common law; for by the law of Portugal and Castile it is denied. See Fagundez lib. 4. cap. 5. Tannetum disput. 2. quaest. 5. dubio 2. Bassaeum, Verbo Donatio.

SECOND, concerning gifts between husband and wife, whether they can at least be made causa mortis: for some deny it, as Iulius Clarus lib. 5. sent. §. donatio, quaest. 9. to whom Fagundez gives greater approval lib. 5. cap. 4. num. 21.

The SECOND opinion holds that they are valid. So Emanuel Costa in cap. si pater, 1. part. v. legavit. Molina tract. 2. de iust. disp. 288. Gomez ad leg 50. Tauri, num. 66. It is clear ex leg. eum servum, §. ult. et ex leg. sed interim, §. sed quod, ff. de donat. inter virum, et uxorem.

THIRD it is doubted about gifts made causa mortis by a father-in-law to his daughter-in-law or son-in-law.

Iulius Clar. §. Donatio, quaest. 6. num. 7. proclaims these INVALID, where he cites very many, to whom add Couar. rubric. de testam. part. 3. Molina Tom. 2. disput. 288. The reason is that a father-in-law is deemed one thing with the son or daughter, and therefore while these live, gifts between them are prohibited.

AS REGARDS the son of a family, it is certain that he can give Castrensian and quasi-Castrensian goods: the reason is that, just as he can dispose of these by testament, so he can also give them; as is taken ex leg: marcellus, ff. de donationib. causa mortis.

But concerning adventitious goods the son of a family cannot dispose even by testament with his father's consent. So Molina disput. 138. Vallascus Tom. 2. consult. 108. numero 36. The Gloss of Bartolus and the Doctors on leg. Qui in potestate, ff. de testam. Nevertheless, concerning these he can give causa mortis with his father's consent, if he be pubescent. So Clar. lib. 4. sent. §. donat. 9. where he says all judge thus. The reason, however, why he can validly give these causa mortis but not make a testament with his father's consent, is that a testament, since it is a last will, cannot hang upon another's volition. So Iason on leg. si aiunt, C. d. Qui testamentum facere possint.

For giving, however, the father's consent is essentially necessary, otherwise the gift is invalid. So Couar. de rubric. testam. part. 3. num. 6. Clarus §. Donatio 36. Molina disp 288. Tom. 2. Fagundez loco cit. num. 25.

THERE is moreover a question about minors: whether they can give causa mortis. Minors are those who lack father and mother, and although puberes, are nonetheless under twenty-five years, as Fagundez notes num. 28. These, though puberes, cannot give, even causa mortis, without the consent of curators and a decree of the Judge, although they may dispose by testament. See Molina disp 224. Tom. 1. and disp. 288. Tom. 2. Except, however, Castrensian and quasi-Castrensian goods, for of these they can freely give, both inter vivos and causa mortis, as is clear ex leg. Pupillus, ff. de acquir. rerum dominio. And leg. si curatorem, Cap. de in integro resti. and it is the common opinion, taught by Baldus, Angel. Salicetus, Paulus de Castro, Alexander, Iason, and all, on Cod. qui testament. facere possunt. Authent. et sponsal. larg. cap. ex hoc, where the Gloss on the word testari, and Bartol. collar 9.

But if they have no Curator, or obtain release from the age from the King after twenty completed years for a male; and eighteen for a female, they can make gifts of movables, both inter vivos and causa mortis; but of immovables they cannot without a decree of the judge. See Molina Tom. 2. disput. 277. and 278.

It is DOUBTED also about deportees, who are condemned to perpetual exile, and about the relegated, who are cast into exile for a time, as is had in leg. relegatus, ff. differentiis, ff. de interdict.

I SAY therefore that the deported to perpetual exile cannot [in the common course] give causa mortis, testify, or bequeath, and the same holds for those condemned to death; text of leg. si aliquis, ff. de donat. causa mortis.

THOSE ENTERING Religion cannot make a gift and renunciation of goods while they exist as Novices in Religion, except within two months nearest to profession, with the license of the Bishop; which renunciation has no effect unless profession follows, as the holy Council of Trent defines, sess. 25. de Regular. cap. 16. Yet this decree does not impede gifts made before entering Religion, even with the intention of entering religion, as the sacred Congregation declares, 18. May 1598. and many follow, Sanchez sum. Tom. 2. lib. 7. cap. 5. num. 4. citing ten Doctors. Add Dianam Tom. 1. tract. de dubiis regular. resol. 55. who brings others.

OTHERS, however, hold that a gift made before entrance, with the intention and view of entering Religion, is also included. So Fagundez lib. 5. cap. 6: Molina Tom. 1. disp. 149. Guttier. cap. quamvis pactum, de pactis, in 6. Lessius lib. 2. cap. 41. dub. 4. num. 40. Azor tract. 1. lib. 13. cap. 9. quaestio 2. who also cites Sanchez, citing sixteen Doctors.

This seems to me to be the mind of the Council, which prohibits the renunciation of goods, lest being impoverished they be forced to defer profession, as Fagundez notes. The sacred Congregation, however, follows the first opinion.

I wish it to be NOTED, that for the renunciation above from the Council to be valid, a male must have sixteen completed years, as many adduce apud Fagundez numero 12.

FINALLY, the general rule concerning persons who can validly give is this, and it is [the] general rule, that those persons who are under the power of another, although they have dominion over goods, yet lack their free administration, cannot validly give: such are wives, the insane, prodigals, those lacking reason, the impuberes, sons of a family, and minors under twenty years, as all concede apud Fagundez num. 13. with D. Bonavent. in 4. dist. 15. part. 2. art. 2. quaest. 1. ad 4. Husbands indeed can make moderate gifts against the will of their wives; yet if they dissipate goods common to themselves and their wives, they are bound to impute that consumed faculty to themselves in a third of their part, upon dissolution of the marriage or upon divorce being made, with a division of the goods. So Molina tract. 2. disp. 275. Lessius tract. 1. lib. 2. cap. 12. dub. 14. n. 87. Fagundez n. 16. whom see. I have sufficiently explained this Tract. de Charitate, disp. de eleemosyna, et in hoc tractatu, disp. 1.

GIFTS merely liberal and simple, made by a father to his sons placed under his power, are regularly invalid, and must be brought into the partition. So the Doctors commonly apud Fagundez lib. 4. cap. 7. de contract. The reason is that the son is one thing with the father, leg. finali, Cod. de impuber.; but in gifts there must be, at least, two persons, the giver and the recipient. Yet a gift made to an emancipated son is valid, as the text has it in leg. Donationes, quae parentes, Cod. de donat. inter virum, et uxorem, and the Gloss. ordin. and the Doctors commonly on leg. 2. Cod. de ineff. dof. donat.

A gift made by a father to his son under the title of dowry is also valid, nor is he bound to bring it into the division with his brothers or other heirs after the father's death, leg. Pomponius, ff. familiae erciscundae, et ff. et Cod. de collat. bonorum, throughout.

CONCERNING gifts, however, which are made by a bridegroom to the bride, or by the parents of the bridegroom, so that he may appear more honored, see Fagundez cap. 7; yet the custom of the region must always be kept, for men are not held to give except according to such a custom, leg. penult. ff. soluto matrim. and the Law adds: Indeed, prodigal garments, which modern abuse has introduced, I do not think are to be held as gifts, nor pearls, nor precious stones, because no one is presumed to wish to use his substance with such enormity of loss to himself. See also Matthaeum de Afflictis decis. 315.

SIMILARLY, what was said of the dowry for corporeal nuptials must also be said of the dowry for spiritual nuptials to Religion; for the argumentation holds in favorable matters from one to the other, c. inter corporalia, de translat. Episcop. Bartol. on leg. 1. §. si parentes, ff. si quis a parente, Vallascus in praxi de partit. cap. 13. num. 31.

A gift of ALL present and future goods cannot be made. So the Doctors commonly, Bartol. on leg. stimulatio hoc modo concepta, ff. de verb. oblig. et in lege ult. Cod. de pactis, and others apud Fagundez lib. 4. cap. 10. The reason is that one thus takes from himself the power of making a testament, which cannot be taken away, since it is of the law of nations. The same is signified, if you give an inheritance.

WHETHER, however, one can give all present goods: I hold it more probable that it is invalid, with Iulius Claro, Couar. and Gamma, apud Fagundez lib. 4. cap. 10.

A GIFT, however, of all goods, even future ones, if the usufruct be reserved, or something by which one may be sustained, is valid; so Bartol. on Leg. stipulatio hoc modo concepta, ff. de verb. oblig. Iulius Clar. lib. IV. sent. §. Donatio, quaest. 19. Socinus iunior consil. 142. num. 39.

Indeed, if a gift of all, even future, goods be made to the Church, or to a pious place, it is valid ex text. in leg. Iubemus, 2. vers. patrimon. Cod. de sacrosanctis Ecclesiae. Bartolo in l. ult. numero 13. Cod. de pactis, and Gomez attests the common view ad leg. 69. Tauri. Iulius Clarus also teaches this lib. IV. sentent. §. Donatio, quaest. 20. and others cited by him. The reason is that if one can validly consecrate oneself to the Church, much more one's goods; and although many apud Clarum hold the opposite, yet for this opinion in favor of the Church it must be said.

GIFTS also of all present and future goods, made for an onerous cause of dowry or marriage, are valid. So Molina lib. II. de primog. cap. 10. num. 77. and the other Molina, the Theologian tract. 2. disp. 280. Rainos observ. 41. Menchaca de success. creat. leg. 5. 1. num. 32. Fagundez lib. II. cap. 10. num. 12.

AS REGARDS gifts between spouses, they were of old regularly null, lest the spouses, by a mutual bond of love, strip themselves of their own goods, as is clear ex Leg. cum hic status, ff. eodem. Antoninus the Emperor decreed that it should remain free for the giving spouse to revoke a gift made to the other spouse while the giver himself lived; yet if he did not revoke it, it would be confirmed by death, so that afterwards the heirs of the giver could not revoke it. This indeed differs little from a legacy, and from a gift causa mortis. Therefore, just as spouses are not prohibited from giving to each other causa mortis, and from bequeathing, so neither ought this to be denied; and this holds even today ex leg. cum hic status cit. et leg. 1. et 3. et leg. quas parentes, Cod. de donat. inter virum, et uxorem, et cap. ultimo, eodem titulo.

This gift, however, is confirmed also by civil death, which is threefold: first, by perpetual exile, or a long one of ten years. Second is the penalty of servitude. Third, profession in Religion. So Sancius lib. VI. de matrim. disp. 17. Fagundez lib. IV. de contract. cap. 11. num. 6. Molina Tract. 2. de Iustitia, disp. 289.

Moreover, a gift made between spouses of the future was formerly absolute and irrevocable, but now it has a tacit condition, and is valid if marriage follows and is consummated. The former part is had in leg. 1. v. igitur, ff. de donat. et leg. 2. et leg. si filia, et leg. si tibi, Cod. de donat. ante nupt. That the aforesaid conditions are now required is had in leg. cum veterum, Cod. de donat. ante nupt. et lib. III. tit. 11. part. 4. See Sanchez lib. VI. de matrim. disp. 18. et 19. Molina Tom. 1. Tract. 2. disp. 290.

By positive law, for a gift to be valid, insinuation before a judge is required, leg. sancimus, Cod. de donatione; wherefore a gift without insinuation, exceeding 500. solidi, is null as to the excess, and eodem tit. lib. penult. it is enacted that a gift is valid without insinuation if it does not exceed the sum of 500. solidi. Now five hundred solidi are worth 700 Spanish scudi. See Clarum quaestione 5.

On the revocations of gifts.

GIFTS, especially inter vivos, I suppose to be irrevocable ex D. Bonavent. in Diaeta, Tit. 3. cap. 1. et in Psalm. 111.

A gift, perfected by traditio, and made irrevocable, is vitiated chiefly by three voiding causes. First by ingratitude. Second by supervening children. Third by an inofficious gift. Other causes are also reduced to these heads, as Iulius Clar. notes lib. IV. sent. §. donatio, quaest. 1.

AS REGARDS the first, we speak of a liberal gift; for one made by way of remuneration has already had its counterpart.

FIRST, then, it is revoked if the recipient has inflicted grave and atrocious injuries on the giver, even if only once. So Molina Tract. 2. disp. 281. et alii. What injuries are such is left to the judgment of the prudent man, and these injuries can be done by words or by deeds.

SECOND, if the recipient strikes the giver, or lays violent hands on him with the intention of injuring him.

THIRD, if he has inflicted grave damage on the giver's goods, provided he does this unjustly.

FOURTH, if the recipient has plotted danger to the giver's life.

FIFTH, if the recipient has not fulfilled another gift imposed on him by the giver, or has not discharged a condition imposed and accepted in the gift by the giver.

Since, however, these revoke a gift in punishment of a crime, the recipient is not bound to restore before the sentence of a judge.

OTHER causes are adduced by others, but Molina §. nobis vero, ait, holds that hatreds are not to be extended in this matter.

The SECOND head is the supervening offspring; for gifts are sometimes made at a time when the giver lacked succession: The question is asked: whether upon offspring supervening the gift is revoked.

I ASSERT that it is revoked ipso facto leg. si unquam, Cod. de revocand. donat. and indeed although this law speaks of a gift made to children, it must nevertheless be understood of any other gift made to another stranger, as Iulius Clar. notes lib. IV. §. Donatio, quaest. 22. et Gloss. in leg. si nunquam; and the Doctors commonly.

Note that this revocation takes place by the law itself upon children being born; hence the law says: Revertatur, etc.

IF, however, the gift was made to the Church, it is revoked not in whole, but insofar as it bites. See Tiraquellum copiously in leg. si unquam, Baldum consil. 215. Molinam tract. 2. cap. 2. disp. 292. Bartolum in leg. Titiae, §. Imperator, ff. de legat. 2. Couar. lib. I. var. cap. 19. Ripam ad leg. si unquam.

AND the Doctors note that a father cannot renounce the benefit of legis, si unquam Cod. de revocando donat.; for he can renounce only insofar as he does not prejudice the legitims of his children, which are owed to them by natural law. And so Clarus says this opinion is the best, and that judgment has always been rendered according to it.

The THIRD head is the inofficious gift, which is twofold. One in fact only, not in intention, when a father injures the Legitim of his children in the thing, although he does not intend to injure: then it is inofficious both in fact and in intention when he both injures in the thing and intended to injure.

THEREFORE if the gift has been made to one son, it is not revoked except up to the injury of the legitim of the other sons. So Clar. lib. IV. §. Donatio, quaest. 24. Molina tract. 2. disp. 283.

If it is made to a stranger, and is inofficious in intention, it is revoked in fact also, up to the legitim. So the Doctors cited; and this is true, even if the father had confirmed the gift by oath, because an oath is not a bond of iniquity, as the S. Doctor warns in 4. dist. 28. in dubiis litterae.

But if it is inofficious in fact only, not in intention, I hold it more probable that the whole is revoked in its entirety. So Bartol. cit. Iullius Clar. quaest. 24. where he calls it the common opinion.