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 DONATION

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DONATION

pose freely, even in favour of the Church, of property acquired by them after ordination [L. 33 (34) C. De episcopis et clericis, I, 3]. The Franks, long quite unaccustomed to dispose of their property by will, were on the other hand generous in donations, espec- ially cessiones post obitum, similar to the Roman law donations in view of death but carrying with them the renunciation on the donor's part of his right of revocation; other Prankish donations to the Church reserved the usufruct. The institution known as precaria ecclesiastica was quite favourable to the growth of donations. At the request of the donor the Church granted him the ase of the donated ob- ject for five years, for his life, or even a use transfer- able to the heirs of the first occupant. Synods of this epoch assert to some extent the validity of pious donations even when the legal requisites had not been observed, though as a rule they were not omitted. Generally speaking, the consent of the civil authority (pri?iceps) was not indispensable for the acquisition of property by religious corporations. The restrictions known as the " right of amortization" (see Mortmain) are of later date, and are the outcome of theories elab- orated in the Middle Ages but carried to their logical issue in the modern civil legislation (of Continental countries) concerning biens de mainmorte, or property held by inalienable tenure, i. e. the property of reli- gious corporations, they being perpetual. The C"hurch does not accept such legislation; nevertheless the faithful may act accordingly in order to secure to their donations the protection of the law.

Canonical Legisl.^tion. — Donations are valid and obligatory when made by persons capable of disposing of their property and accepted by the administrators of ecclesiastical institutions. No other formality is required, neither notarial act nor authorization of the civil power. The declaration before the public au- thority, required by Roman law, is not obligatory in canon law. Nor are the faithful obliged to heed the re- strictions which are placed by some modern civil codes in the way of a free disposition of their property. On the other hand the donation must be accepted by the donee; it is not true, as some have maintained, that every donation for works of religion (ad pias causas) implies a vow, i. e. an act in itself obligatory inde- pendently of the acceptance of the donee. If the ad- ministrators of an ecclesiastical institution refuse to accept a donation, that institution can always obtain in canon law a restitutio in integrum, whereby it is again put in a condition to accept the refused dona- tion. The canonical motives for the revocation or diminution of a donation are the birth of children to the donor and the donatio inofficiosa, or excessive gen- erosity on the latter's part, whereby he diminishes the share of inheritance that legitimately belongs to his children. In both cases, however, the donation is valid in canon law to the degree in which it respects the legitimate share of the donor's children. It is worthy of note that while ecclesiastical and religious establishments may give alms, they are bound in the matter of genuine donations by the provisions of the canon law concerning the alienation of ecclesiastical property.

Civil Leglslation. — In most European countries the civil authority restricts in three ways the right of the Church to accept donations: (1) by imposing the forms and conditions that the civil codes prescribe for donations; (2) by reserving to itself the right of saying what institutions shall have civil personality and be thereby authorized to acquire property; (3) by exacting the approval of the civil authority, at least for important donations. Austria recognizes a juri- dical personality not only in those religious institu- tions which are charged with the maintenance of public worship, but also, through easily granted ap- proval, in religious associations of any kind. The so-called amortization laws (against the traditional

inalienability of tenure on the part of religious cor- porations) have so far remained only a threat, though the Government reserves the right to establish such legislation. Religious communities, however, are re(iuired to make known to the civil authorities all their acquisitions of property. In Germany, even since the promulgation of the Civil Code of the Empire (1S96), the legislation varies from State to State. In all, however, property rights are recognized by the law in only those ecclesiastical institutions that are recognized by the State. As a rule, donations must be authorized by the civil power if they exceed the value of five thousand marks (1250 dollars, or 250 pounds sterling) though in some states this figure is doubled. In Prussia civil authorization is requisite for all acquisition of real property by a diocese, a chapter, or any ecclesiastical institution. In Italy every do- nation must be approved by the civil authority, and only the institutions recognized by the State are al- lowed to acquire property; note, however, that sim- ple benefices (see Benefice) and religious orders can- not acquire this latter privilege. With few exceptions, ecclesiastical institutions in Italy are not allowed to invest in any other form of property than Govern- ment bonds. In France the associations cidtuelles, or worship-associations, are recognized by the State as civil entities for the conduct of public worship ; it is well known, however, that Pius X forbade the Cath- olics of France to form such associations. That coun- try, it is true, recognizes the civil personality of licit associations organized for a non-lucrative purpose, but declares illicit every religious congregation not approved by a special law. At the same time, it re- fuses to approve the religious congregations which have sought this approval, and is gradually suppressing all those which were formerly approved. (See Property, Ecclesiastical.)

Fen'elon, Les fandations et les etablissements ecclesiastiques (Paris, 1902); Fourneret, Ressources dont VEglise dispose pour reconstituer son patriynoine (Paris, 1902); Knecht, System des justinianisctien Kirc/ienvermogensrechles (Stuttgart, 1905); BONDROIT, De capacitate possidendi ecclesice cetate mcrovingicd (Louvain, 1900); Loening, Gesctiictite des deutschen Kircfien- rechts (Strasburg, 189S), II, 653 sq.: Schmalzgrueber, Jus ecct^siasticum universum (Rome, 1844), III, ii, 430-460; Santi, PrmUctiones juris canonici (Rome, 1898), III, 206; Wernz, Jus Decretalium (Rome, 1901), III, 270 sq.; Aichner, Compenilium juris ecclesiastici (Brixen, 1900), 814-815; Silbernagl, Letir- bucti des katholischen Kirchenrectits (Ratisbon, 1903), 692 sq.; Geiger, Der kirctienrec/itlictie Intiatt der hundesstaatlichen Aus~ iahrungsgesetze zum biirgerlichen Gesetzbuch. fiir das deutsche Reicti in ArcJiiv fiir tcattiolisches Kirchenrecht (Mainz. 1901), LXXXI, 650. — For the juridical condition of the Church in the different nations of the world in respect of property see the ar- ticles on various countries in The Catholic Encyclopedia; also a series of articles in Revue catholique des institutions et du droit (Paris, 1907). Series II, vols. XXXVIII and XXXIX; also in Bulletin de la societe de legislation comparee (Paris, 1905-1907), XXXIV, XXXV, XXXVI.

A. Van Hove.

Donation (in Civil Jurisprudence), the gratuitous transfer, or gift (Lat. donatio), of ownership of prop- erty. The Latin word munus also signified a gift, but " a gift on some special occasion such as births or mar- riages" (Roby, Roman Private Law, Cambridge, 1902, I, 86). ilie person transferring ownership by donation is termed the donor, the person to whom the transfer is made, the donee. In contemplation of law donation is "based upon the fundamental right every- one has of disposing of his property as he wills" (125 New York Court of Appeals Reports, p. 579), a right, however, deemed from ancient times an appropriate subject for legal regulation and restraint (see Johns, Babylonian and Assyrian Laws, etc., New York, 1904, XXI). Donation requires the consent not only of the donor to transfer the ownership, but also that of the donee to accept and assume it, "as I cannot", remarks Pothier (Treati.se on Obligations, 4), "by the mere act of my own mind transfer to another a right in my goods, without a concurrent intention on his part to accept them ' '. Donations are usually classified as (1)