(IN CIVIL JURISPRUDENCE)
Donation, the gratuitous transfer, or gift (Latin donatio), of ownership of property. The Latin word munus also signified a gift, but “a gift on some special occasion such as births or marriages” (Roby, Roman Private Law, Cambridge, 1902, I, 86). The 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 everyone 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 (Treatise 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) inter vivos (among the Living) and (2) mortis causa (in view of death).
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 ineffectual consent, the transaction becomes an irrevocable transfer by donation inter vivos, regarded in law as an executed contract, just as if the preliminary consents 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 executed contracts, for they are founded on the mutual consent of the parties in reference to a right or interest passing between them” (Commentaries on American Law, 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 disclaimed by the donee (J. W. Smith The Law of Contracts, 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). The 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 delivery. Donations, were, however, rendered revocable 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 English 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” (Blackstone, 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 nuptias before marriage only (Leage, op. cit., 95). By English common law there accrued to a husband full ownership of his wife’s personal property, and possession for their joint lives of her real property. And because English law deemed husband and wife one person (Bishop, Commentaries on the Law of Married Women, Boston, 1873, I, 231), a gift of personal property from husband to wife was “impossible according to the old and technical common law” (ibid., 730). But the commentator adds that “it is otherwise in equity” (ibid., 731). By the French Code Civil, donations inter vivos, designated entre vifs, are recognized; but they are subjected to many restrictions.
A donation of this kind is made when a person “in his last sickness”, to quote Blackstone (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 decease”. 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 apud Homerum Telemachus donat Pirœo (II, VII). This donation differs strikingly 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 dependent 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 quœ conferuntur in tempus soluti matrimonii (Pothier, Pandectæ Justinianeæ, 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 consideration 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 disposition 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 avoiding a donation mortis causa. In every instance the evidence establishing such a donation as against a donor’s representatives must “be clear and convincing, strong and satisfactory” (125 New York Court of Appeals Reports, 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 altogether it would be quite as well” (American Law Register, I, II). And by the Code Civil it has been “struck out” of the law of France. http://www.newadvent.org/cathen/05117a.htm