Donation (canon law)
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A Donation, when referred to in
canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
in the
Roman Catholic Church The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
, 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 (, ) are money, food, or other material goods donated to people living in poverty. Providing alms is often considered an act of virtue or Charity (practice), charity. The act of providing alms is called almsgiving, and it is a widespread p ...
). 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 is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
and in some modern
codes In communications and information processing, code is a system of rules to convert information—such as a letter, word, sound, image, or gesture—into another form, sometimes shortened or secret, for communication through a communication ...
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. 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 (Latin, ''between the living'') is a legal term referring to a transfer or gift made during one's lifetime, as opposed to a testamentary transfer that takes effect on the death of the giver. The term is often used to describe a trust e ...
'' if made while the donor yet lives, and ''
causa mortis A gift, in the law of property, is the voluntary and immediate transfer of property from one person (the donor or grantor) to another (the donee or grantee) without consideration. There are several type of gifts in property law, most notably ' ...
'', 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 The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
may also decide under what forms and on what conditions it will accept donations made to works of religion (''donationes ad pias causas''; English: donations toward pious causes); it pertains to the State to legislate for all other donations.


History of ecclesiastical donations

Even before the
Edict of Milan The Edict of Milan ( la, Edictum Mediolanense; el, Διάταγμα τῶν Μεδιολάνων, ''Diatagma tōn Mediolanōn'') was the February 313 AD agreement to treat Christians benevolently within the Roman Empire. Frend, W. H. C. ( ...
(313) the
Church Church may refer to: Religion * Church (building), a building for Christian religious activities * Church (congregation), a local congregation of a Christian denomination * Church service, a formalized period of Christian communal worship * C ...
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 ( , ; la, Flavius Valerius Constantinus, ; ; 27 February 22 May 337), also known as Constantine the Great, was Roman emperor from AD 306 to 337, the first one to Constantine the Great and Christianity, convert to Christiani ...
). 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. 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 . 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 corporation A religious corporation is a type of religious non-profit organization, which has been incorporated under the law. Often these types of corporations are recognized under the law on a subnational level, for instance by a state or province gove ...
s. The restrictions known as the "right of amortization" are of later date, and are the outcome of theories elaborated in the
Middle Ages In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the post-classical period of global history. It began with the fall of the Western Roman Empire a ...
but carried to their logical issue in the modern civil legislation (of Continental countries) concerning ''biens de
mainmorte Mortmain () is the perpetual, inalienable ownership of real estate by a corporation or legal institution; the term is usually used in the context of its prohibition. Historically, the land owner usually would be the religious office of a church ...
'', or property held by
inalienable ''InAlienable'' is a 2007 science fiction film with horror and comic elements, written and executive produced by Walter Koenig, and directed by Robert Dyke. It was the first collaboration of Koenig and Dyke since their 1989 production of ''Moon ...
tenure Tenure is a category of academic appointment existing in some countries. A tenured post is an indefinite academic appointment that can be terminated only for cause or under extraordinary circumstances, such as financial exigency or program disco ...
, 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 law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
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
Europe Europe is a large peninsula conventionally considered a continent in its own right because of its great physical size and the weight of its history and traditions. Europe is also considered a Continent#Subcontinents, subcontinent of Eurasia ...
an countries by 1910 the civil authority restricted in three ways the right of the
Roman Catholic Church The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
to accept donations: * by imposing the forms and conditions that the
civil code A civil code is a codification of private law relating to property, family, and obligations. A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdictions with a civil code, a number of the core ar ...
s 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, , bar, Östareich officially the Republic of Austria, is a country in the southern part of Central Europe, lying in the Eastern Alps. It is a federation of nine states, one of which is the capital, Vienna, the most populous ...
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,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...
, 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, , Old Prussian: ''Prūsa'' or ''Prūsija'' was a German state on the southeast coast of the Baltic Sea. It formed the German Empire under Prussian rule when it united the German states in 1871. It was ''de facto'' dissolved by an em ...
civil authorization was requisite for all acquisition of real property by a diocese, a chapter, or any ecclesiastical institution. In
Italy Italy ( it, Italia ), officially the Italian Republic, ) or the Republic of Italy, is a country in Southern Europe. It is located in the middle of the Mediterranean Sea, and its territory largely coincides with the homonymous geographical re ...
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 (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
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 ( it, Pio X; born Giuseppe Melchiorre Sarto; 2 June 1835 – 20 August 1914) was head of the Catholic Church from 4 August 1903 to his death in August 1914. Pius X is known for vigorously opposing modernist interpretations of C ...
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.


References

{{catholic, wstitle=Donation (in canon law) * Canon law Property law Canon law of property