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 DONATION

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DONATION

inter vivos (among the livang) and (2) mortis causa (in view of death).

(1) Inter Vivos. — Sir William Blackstone explains (in his Commentaries, II, 441) that in English law mutual consent to give and to accept is not a gift, but is an imperfect contract void for want of consideration. Yet delivery and acceptance being added to the inef- fectual consent, the transaction becomes an irrevoca- ble transfer by donation inter vivos, regarded in law as an executed contract, just as if the preliminary con- sents had constituted an effectual "act in the law" (see Pollock, Principles of Contract, New York, 1906, 2). "Every gift", remarks Chancellor Kent, "which is made perfect by delivery, and every grant, are exe- cuted contracts, for they are founded on the mutual consent of the parties in reference to a right or interest

Eassing between them" (Commentaries on American -aw, II, 437); and Milton (Paradise Lost, XII, 67) says: —

He gave us only over beast, fish, fowl. Dominion absolute; that right we hold By his donation. According to English law, writing under seal, known as a deed, so far transfers personal property without actual delivery that ownership vests upon execution of the deed, and the donation is irrevocable until dis- claimed by the donee (J. W. Smith, The Law of Con- tracts, 36, Philadelphia, 1885). Not only movable things, defined in English law as personal property, but land (real estate) may be the subject of this donation (24 Vermont Reports, 591; 115 New York Court of Appeals Reports, 295). Tlie legislation of the Emperor Justinian abolished requirements which by Roman law had previously been necessary to perfect a donation, and thenceforth, by force of this legislation, the donor's informal agreement to give, bound him to make de- livery. Donations, were, however, rendered revoca- ble by the same legislation for a failure to comply with their conditions, and also for gross ingratitude (Leage, Roman Private Law, London, 1906, 145). The Eng- lish law "controls", to quote Chancellor Kent, "gifts when made to the prejudice of existing creditors" (Commentaries, II, 440); and a donation may be avoided if the donor " were under any legal incapacity ... or if he were drawn in, circumvented or imposed upon by false pretences, ebriety or surprise" (Black- stone, Commentaries, II, 441). But English law does not annul donations for ingratitude nor for various other causes mentioned in the Roman law. English law "does not", according to Chancellor Kent, "indulge in these refinements" (op. cit.). Donations between husband and wife were contrary to the policy of the Roman law which permitted donatio propter nnptias before marriage only (Leage, op. cit., 95). By Eng- lish common law there accrued to a husband full ownership of his wife's personal property, and posses- sion for their joint lives of her real property. And be- cause English law deemed husband and wife one per- son (Bishop, Commentaries on the Law of Married Women, Boston, 1873, I, 231), a gift of personal property from husband to wife was " impossible ac- cording to the old and technical common law" (ibid., 730). But the commentator adds that "it is other- wise in equity" (ibid., 731). By the French Code Civil, donations inter vivos, designated entre vifs, are recognized; but they are subjected to many restric- tions.

(2) Mortis Causa. — A donation of this kind is made when a person "in his last sickness", to quote Black- stone (Commentaries, II, 514), "apprehending his dissolution near, delivers or causes to be delivered to another the possession of any personal goods . . . to keep in case of his tlecease". The same donation may also be made in presence of any other impending peril of death. The "Institutes" of Justinian cite a classic example: sic et apuil Ilomcrum Telemaclius donat PircEO (II, VII). This donation differs strik-

ingly from donation inter vivos in not being absolute, but conditional on the donor failing to recover from the sickness or to escape the peril; also in being de- pendent on his not having exercised the right which remains to him, of revoking the donation. The transfer is thus perfected by death only. Roman law permitted such donations between husband and wife because these were donations quw conjeruntur in tern- pus solvit matrimonii (Pothier, Pandecta? Justinianeae, XXIV, t. i, xix). Nor were donations of this kind from husband to wife forbidden by the English common law (24 Vermont Reports, 596). As the danger in view of which the donation is made must be actually present, therefore a transfer from an owner " not terrified by fear of any present peril, but moved by the general con- sideration of man's mortality", cannot be sustained as a donation mortis causa. A transfer of ownership of real estate cannot be effected by this form of donation. And any donation mortis causa expressly embracing the whole of the donor's property has been said to be illegal, being deemed to be an attempt to escape dis- position by last will (American Law Register, I, 25). The grounds already referred to on which a donation inter vivos may be avoided seem also grounds for avoid- ing a donation mortis causa. In every instance the evi- dence establishing such a donation as against a donor's representatives must " be clear and convincing, strong andsatisfactory"(125NewYork Court of Appeals Re- ports, 757). For this "death-bed disposition of property", as it is termed by Blackstone (op. cit.), is . not a favourite of the law. Many years ago a lord chancellor of England, profoundly learned in the law and noted for his conservatism suggested that if " this donatio mortis causa was struck out of our law alto- gether it would be quite as well" (American Law Reg- ister, I, II). And by the Code Civil it has been " struck out " of the law of France.

Story, Commentaries on Equity Jurispnidence (Boston, 18S6), 607. 60S; Parsons, The Law of Contracts (Boston, 1904), I, 254-60; 3 Vesey Jrs. Reports (Boston, 1844), 119; J, Wheaton's Reports. Sup. Ct. V. S. (New York, 1S19), 518; W New York Court of Appeals Reports, 17; La Grande Encyc, s. v.

Ch.\RLES W. SliOANE.

Donation o£ Constantine (Lat. Donatio Constan- tini). — By this name is understood, since the end of the Middle Ages, a forged document of Emperor Con- stantine the Great, by which large privileges and rich possessions were conferred on the pope and the Ro- man Church. In the oldest known (ninth century) manuscript (Bibliotheque Nationale, Paris, MS. Latin 2777) and in many other manuscripts the document bears the title: "Constitutum domni Constantini im- peratoris". It is addressed by Constantine to Pope Sylvester I (314-35) and consists of two parts. In the first (entitled " Confessio ' ') the emperor relateshow he was instructed in the Christian Faith by Sylvester, makes a full profession of faith, and tells of his bap- tism in Rome by that pope, and how he was thereby cured of leprosy. In the second part (the " Donatio ' ') Constantine is made to confer on Sylvester and his successors the following privileges and possessions: the pope, as successor of St. Peter, has the primacy over the four Patriarchs of Antioch, Alexandria, Con- stantinople, and Jerusalem, also over all the bishops in the world. Tlie Lateran basilica at Rome, built by Constantine, shall surpass all churches as their head, similarly the churches of St. Peter and St. Paul shall be endowed with rich possessions. The chief Roman ecclesiastics {clerici cardimiles), among whom senators may also be received, shall obtain the same honours and distinctions as the senators. Like the emperor the Roman Church shall have as functionaries cubi- cularii, ostiarii, and excubitores. The pope shall enjoy the same honorary rights as the erajieror, among them the right to wear an imperial crown, a purple cloak and tunic, and in general all imperial insignia or signs of distinction; but as Sylvester refused to put on