Donation (in canon law)
Encyclopedia
A Donation, when referred to in canon law in the Roman Catholic Church
, is defined as the gratuitous transfer to another of some right or thing. When it consists in placing in the hands of the donee some movable object it is known as a gift of hand (donum manuale, an offering or oblatio, an alms
). Properly speaking, however, it is a voluntary contract, verbal or written, by which the donor expressly agrees to give, without consideration, something to the donee, and the latter in an equally express manner accepts the gift. In Roman law
and in some modern codes this contract carries with it only the obligation of transferring the ownership of the thing in question; actual ownership is obtained only by the real traditio or handing over of the thing itself, or by the observation of certain juridically prescribed formalities (L. 20, C. De pactis, II, 3). Such codes distinguish between conventional (or imperfect) and perfect donation, i.e. the actual transfer of the thing or right. In some countries the contract itself transfers ownership. A donation is called remunerative when inspired by a sentiment of gratitude for services rendered by the donee. Donations are also described as inter vivos
if made while the donor yet lives, and causa mortis
, when made in view or contemplation of death; the latter are valid only after the death of the donor and until then are at all times revocable. They much resemble testaments and codicils. They are, however, on the same footing as donations inter vivos once the donor has renounced his right to revoke. In the pursuit of its end the church needs material aid; it has the right therefore to acquire such aid by donation no less than by other means. In its quality of a perfect and independent society the Roman Catholic Church
may also decide under what forms and on what conditions it will accept donations made to works of religion (donationes ad pias causas); it pertains to the State to legislate for all other donations.
(313) the Church
was free to acquire property by donation either as a juridically recognized association (collegium) or as a society de facto tolerated (note that the right to acquire property by last will and testament dates only from 321 in the reign of Constantine I
). Nevertheless, the Church was held to observe the pertinent civil legislation, though on this head it enjoyed certain privileges; thus, even before the traditio, or handing over, of the donation to a church or a religious institution, the latter acquired real rights to the same (L. 23, C. De sacrosanctis ecclesiis, I, 2). Moreover, the insinuatio or declaration of the gift before the public authority was required only for donations equivalent in value to 500 solidi (nearly twenty-six hundred dollars) or more, a privilege later on extended to all donations (L. 34, 36, C. De donationibus, VIII, 53). Finally, bishops, priests, and deacons yet under parental power were allowed to dispose 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, especially 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 Frankish 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 use of the donated object for five years, for his life, or even a use transferable 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 (princeps) was not indispensable for the acquisition of property by religious corporations. The restrictions known as the "right of amortization" are of later date, and are the outcome of theories elaborated 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 religious corporations, they being perpetual. The Church does not accept such legislation; nevertheless the faithful may act accordingly in order to secure to their donations the protection of the 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.
an countries by 1910 the civil authority restricted in three ways the right of the Roman Catholic Church
to accept donations:
Austria
recognized a juridical personality not only in those religious institutions which are charged with the maintenance of public worship, but also, through easily granted approval, in religious associations of any kind. The so-called amortization laws (against the traditional inalienability of tenure on the part of religious corporations) remained only a threat, though the Government reserved the right to establish such legislation. Religious communities, however, were required 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 (1896), the legislation varied from State to State. In all, however, property rights were recognized by the law in only those ecclesiastical institutions that are recognized by the State. As a rule, donations had to 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 was doubled. In Prussia
civil authorization was requisite for all acquisition of real property by a diocese, a chapter, or any ecclesiastical institution. In Italy
every donation had to be approved by the civil authority, and only the institutions recognized by the State are allowed to acquire property; note, however, that simple benefices and religious orders could not acquire this latter privilege. With few exceptions, ecclesiastical institutions in Italy were not allowed to invest in any other form of property than Government bonds. In France
the associations cultuelles, or worship-associations, were recognized by the State as civil entities for the conduct of public worship; it is well known, however, that Pope Pius X
forbade the Catholics of France to form such associations. That country recognized the civil personality of licit associations organized for a non-lucrative purpose, but declared illicit every religious congregation not approved by a special law. At the same time, it refused to approve the religious congregations which have sought this approval.
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
, is defined as the gratuitous transfer to another of some right or thing. When it consists in placing in the hands of the donee some movable object it is known as a gift of hand (donum manuale, an offering or oblatio, an alms
Alms
Alms or almsgiving is a religious rite which, in general, involves giving materially to another as an act of religious virtue.It exists in a number of religions. In Philippine Regions, alms are given as charity to benefit the poor. In Buddhism, alms are given by lay people to monks and nuns to...
). Properly speaking, however, it is a voluntary contract, verbal or written, by which the donor expressly agrees to give, without consideration, something to the donee, and the latter in an equally express manner accepts the gift. In Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
and in some modern codes this contract carries with it only the obligation of transferring the ownership of the thing in question; actual ownership is obtained only by the real traditio or handing over of the thing itself, or by the observation of certain juridically prescribed formalities (L. 20, C. De pactis, II, 3). Such codes distinguish between conventional (or imperfect) and perfect donation, i.e. the actual transfer of the thing or right. In some countries the contract itself transfers ownership. A donation is called remunerative when inspired by a sentiment of gratitude for services rendered by the donee. Donations are also described as inter vivos
Inter vivos
Inter vivos is a legal term referring to a transfer or gift made during one's lifetime, as opposed to a testamentary transfer ....
if made while the donor yet lives, and causa mortis
Causa Mortis
Causa Mortis is a satiric play by Jacob M. Appel that lampoons the modern medical establishment. The plot focuses on a woman, Eleanor, whose brain surgeon has accidentally left his watch in her skull. Her daughters urge her to have the timepiece extracted before it harms her, but every surgeon...
, when made in view or contemplation of death; the latter are valid only after the death of the donor and until then are at all times revocable. They much resemble testaments and codicils. They are, however, on the same footing as donations inter vivos once the donor has renounced his right to revoke. In the pursuit of its end the church needs material aid; it has the right therefore to acquire such aid by donation no less than by other means. In its quality of a perfect and independent society the Roman Catholic Church
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
may also decide under what forms and on what conditions it will accept donations made to works of religion (donationes ad pias causas); it pertains to the State to legislate for all other donations.
History of Ecclesiastical Donations
Even before the Edict of MilanEdict of Milan
The Edict of Milan was a letter signed by emperors Constantine I and Licinius that proclaimed religious toleration in the Roman Empire...
(313) the Church
Christian Church
The Christian Church is the assembly or association of followers of Jesus Christ. The Greek term ἐκκλησία that in its appearances in the New Testament is usually translated as "church" basically means "assembly"...
was free to acquire property by donation either as a juridically recognized association (collegium) or as a society de facto tolerated (note that the right to acquire property by last will and testament dates only from 321 in the reign of Constantine I
Constantine I
Constantine the Great , also known as Constantine I or Saint Constantine, was Roman Emperor from 306 to 337. Well known for being the first Roman emperor to convert to Christianity, Constantine and co-Emperor Licinius issued the Edict of Milan in 313, which proclaimed religious tolerance of all...
). Nevertheless, the Church was held to observe the pertinent civil legislation, though on this head it enjoyed certain privileges; thus, even before the traditio, or handing over, of the donation to a church or a religious institution, the latter acquired real rights to the same (L. 23, C. De sacrosanctis ecclesiis, I, 2). Moreover, the insinuatio or declaration of the gift before the public authority was required only for donations equivalent in value to 500 solidi (nearly twenty-six hundred dollars) or more, a privilege later on extended to all donations (L. 34, 36, C. De donationibus, VIII, 53). Finally, bishops, priests, and deacons yet under parental power were allowed to dispose 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, especially 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 Frankish 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 use of the donated object for five years, for his life, or even a use transferable 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 (princeps) was not indispensable for the acquisition of property by religious corporations. The restrictions known as the "right of amortization" are of later date, and are the outcome of theories elaborated in the Middle Ages
Middle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
but carried to their logical issue in the modern civil legislation (of Continental countries) concerning biens de mainmorte, or property held by inalienable
InAlienable
InAlienable is a 2008 science fiction horror film written and produced by Walter Koenig, and directed by Robert Dyke.-Plot:Dr. Eric Norris remains wracked with guilt after a terrible tragedy that cost him his family, and when he learns that an alien parasite is not only growing inside him but...
tenure
Tenure
Tenure commonly refers to life tenure in a job and specifically to a senior academic's contractual right not to have his or her position terminated without just cause.-19th century:...
, i.e. the property of religious corporations, they being perpetual. The Church does not accept such legislation; nevertheless the faithful may act accordingly in order to secure to their donations the protection of the law.
Canonical Legislation
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 authority, required by Roman law, is not obligatory in canon law. Nor are the faithful obliged to heed the restrictions 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 independently of the acceptance of the donee. If the administrators 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 donation. 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 generosity 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 lawCanon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...
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 Legislation (by 1910)
In most EuropeEurope
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
an countries by 1910 the civil authority restricted in three ways the right of the Roman Catholic Church
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
to accept donations:
- by imposing the forms and conditions that the civil codes prescribe for donations;
- by reserving to itself the right of saying what institutions shall have civil personality and be thereby authorized to acquire property;
- by exacting the approval of the civil authority, at least for important donations.
Austria
Austria
Austria , officially the Republic of Austria , is a landlocked country of roughly 8.4 million people in Central Europe. It is bordered by the Czech Republic and Germany to the north, Slovakia and Hungary to the east, Slovenia and Italy to the south, and Switzerland and Liechtenstein to the...
recognized a juridical personality not only in those religious institutions which are charged with the maintenance of public worship, but also, through easily granted approval, in religious associations of any kind. The so-called amortization laws (against the traditional inalienability of tenure on the part of religious corporations) remained only a threat, though the Government reserved the right to establish such legislation. Religious communities, however, were required to make known to the civil authorities all their acquisitions of property. In Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, even since the promulgation of the Civil Code of the Empire (1896), the legislation varied from State to State. In all, however, property rights were recognized by the law in only those ecclesiastical institutions that are recognized by the State. As a rule, donations had to 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 was doubled. In Prussia
Prussia
Prussia was a German kingdom and historic state originating out of the Duchy of Prussia and the Margraviate of Brandenburg. For centuries, the House of Hohenzollern ruled Prussia, successfully expanding its size by way of an unusually well-organized and effective army. Prussia shaped the history...
civil authorization was requisite for all acquisition of real property by a diocese, a chapter, or any ecclesiastical institution. In Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
every donation had to be approved by the civil authority, and only the institutions recognized by the State are allowed to acquire property; note, however, that simple benefices and religious orders could not acquire this latter privilege. With few exceptions, ecclesiastical institutions in Italy were not allowed to invest in any other form of property than Government bonds. In France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
the associations cultuelles, or worship-associations, were recognized by the State as civil entities for the conduct of public worship; it is well known, however, that Pope Pius X
Pope Pius X
Pope Saint Pius X , born Giuseppe Melchiorre Sarto, was the 257th Pope of the Catholic Church, serving from 1903 to 1914. He was the first pope since Pope Pius V to be canonized. Pius X rejected modernist interpretations of Catholic doctrine, promoting traditional devotional practices and orthodox...
forbade the Catholics of France to form such associations. That country recognized the civil personality of licit associations organized for a non-lucrative purpose, but declared illicit every religious congregation not approved by a special law. At the same time, it refused to approve the religious congregations which have sought this approval.