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Conferences on the Virtues

By Fr. Bruno Cocuzzi, ocd

Number 57

Principles governing the giving of Gifts…

As I stated at the end of the last conference, we will begin this month by considering some principles governing the giving of Gifts and making Contributions.

The power (facultas) to make gifts and contributions is not full and complete in everyone. It is limited by both a relative and an absolute incapacity in certain individuals.

In general, by the natural law, they alone have unlimited power to give gifts and make contributions who have the power to enter into binding contracts.

However, civil authority can and does restrict the power to do so for the sake of the common good. The individuals so limited may include minors, spouses, the insane, folks in bankruptcy, prisoners serving sentences, and those in religious vows. I say may include because for all of the ones just named, with the exception of Religious, my author cites examples from certain European nations with whose civil law he was familiar, which civil laws may not exist in our country, and may no longer exist in modern Europe, either.

Minors are deemed by positive law to be incapable of entering into contracts for lack of mature deliberation and consent, and the insane by definition do not enjoy the measure of deliberation and free will necessary to enter into contracts.

Individual spouses are certainly capable of entering into contracts, as are those who are in bankruptcy, so there is another reason why the civil law restricts their power to give away money or other valuable possessions.

Spouses usually own their bank accounts and other assets jointly, and so, in all fairness, neither husband nor wife can make gifts of money or assets without the consent of the other.

A person who has filed for bankruptcy cannot donate his assets because that would be an injustice against his creditors.

With regard to persons serving a prison sentence, I am not aware of any civil statutes that expressly limit their power to make free will gifts, but I do know that in at least one correctional facility, inmates do not have checking accounts, and what money they own is held in trust for them by the correctional authorities. In the facility I have in mind, an inmate requests the authorities to take funds from his “accumulated earnings” and to send an institutional check for a stated amount to a designated beneficiary. It has happened that the authorities do not always approve either the amount of the intended gift or the beneficiary, or both, and so the request of he inmate may not be granted.

With regard to Religious, it used to be that those in solemn vows relinquish the right “personally to own” any assets; and those in simple vows, though they still possessed the faculty to own personal property, could not dispose of their possessions without the permission of their lawful religious superiors.

I say it used to be because in the new Code of Canon Law the terms Solemn and Simple are no longer used. Rather, the terms are perpetual and temporary. So, until I have an opportunity to learn the juridical effects of these, I had better say no more.

In addition to the incapacity to make gifts of money and assets, there also exists the incapacity to receive.

At the time my textbook was written, and presumably pursuant to the laws of certain European nations, minors were incapable of receiving gifts of money or assets in their own name, but gifts could be given to their parents or guardians in trust for the minors’ benefit. At that time, too, “emancipated” minors could receive gifts under the supervision of a curator or counselor. I doubt that his is true in the United States, and perhaps it is no longer true in Europe.

At that time, too, wives in some countries could not accept gifts for themselves personally without permission of their husbands or of a Judge. But once the permission was given to receive the gift, so also was given the implied permission to mange and use the gift with perfect autonomy. Again, I doubt that this is true in modern American and European society.

Nowadays wives can and do receive property in their own name alone without the permission of their husbands. Neither do they need the permission of their husbands to dispose of and manage their assets in order to make their transactions legal and valid.

Furthermore, it used to be that both husbands and wives were said to be incapable of making donations to each other. The presupposition here is that since the two spouses constitute one juridical entity, there is really no transfer of ownership from one to the other. In other words, it doesn’t make sense that an individual should give himself a gift out of his very own assets.

As you know, this is no longer true in modern America. Legally we no longer think of the family, father, mother and minor children as a single juridical entity.

This is quite evident from the fact that spouses can sue one another; minor children can sue their parents; and vice versa.

Another indication of the loss of the conviction that a family is but one moral entity is the fact that certain spouses in business tend to put all the assets they own “jointly” with their spouses in the respective spouse’s or minor children’s names whenever they wish to shield those personal assets from being reached in the event successful suit is brought against them by business creditors.

Prisoners serving life sentences were also incapable, and may still be, of receiving gifts of money or assets. We can only guess as to what the rationale for this law in those countries might have been. Perhaps, at the time such a law concerning prisoners was made, authorities felt that life sentence deprived an individual not only of his physical liberty but also of his moral liberty.

In some countries, medical doctors, surgeons, other medical personnel and even ministers of religion were once deemed incapable of receiving gifts from a sick person they were treating during the course of the person’s illness. In those same countries, in the event the illness culminated in the death of the sick person, these same professionals, in so far as they were professional caregivers, were considered incapable also of receiving testamentary gifts or bequests.

The rationale for this kind of legislations in those countries was that the said professionals are in a position to exert undue influence upon the sick individual, and thus deprive them of full deliberation and true liberty in conferring gifts upon the said medical and religious personnel.

I am not aware of any laws in the United States that invalidate gifts by a sick person during his or her illness to the medical and religious ministers attending to them, but I seem to remember hearing of situations where heirs to an estate will sue to recover gifts given by the deceased relative to doctors, priests and other caregivers during the deceased’s last illness. Thus, what used to be statutory law in other countries is now certainly part of the common law here in our own country.

Lastly, a Religious who by vow relinquishes the radical capacity to own is also incapable of receiving gifts. What is given to such a one automatically belongs to the Religious Community of which he/she is a member.

It is common, however, for Superiors to such Communities to allow members to keep in custody and to use small amounts of money “as if” it were their own, including making donations and the buying and giving of small gifts and presents.

Invalid Methods of Giving

The power to make gifts of one’s assets can also be limited as to the manner in which the gifts are made.

The first of the forbidden ways is called interposition. The way it is defined in my textbook, though, causes me to question how this can be accomplished.

Interposition is said to be the making of a gift to a person who is capable of receiving a gift and imposing upon the recipient an obligation to give that gift in turn to someone who is incapable of receiving a gift.

What escapes me is how one and the same person can be incapable of receiving a gift from one individual only, and not from anyone and everyone.

Perhaps the author has in mind a sick person who wants to give a gift to his doctor during his illness, and knows that, with respect to himself, the doctor is incapable of accepting it. An interposed healthy, third, unattending person would then be able to give the gift in turn to the doctor, and thus the law limiting the doctor’s capacity would be fraudulently circumvented.

A second manner of giving that used to be, forbidden by law in certain European countries was (and perhaps still is) by substitution. Since England is not one of the European countries cited by my textbook in this regard, I doubt that anything equivalent to this obtains here in our own country. (As you know, our American legal system is a direct offspring of English Law). Thus I will quote what my author says about substitute giving:

Properly speaking, [the donor] gives ownership (literally, dominion), but not the benefit of assets to someone together with the obligation to keep them for a certain time only, or until [the donee’s] death, and afterward giving them away to a designated third party or parties. The former is a fiduciary, and the latter is, or are, the nominee(s). The law [of those countries] prohibits this out of repugnance toward being subject to the power of one long dead, and as a method used by the nobility to keep lands in the possession of their descendants. The civil law considers this [method] to be injurious to the equality of citizens, to the free alienation of lands and other assets, and to the use and development of land.

Thus, for the most part, not only substitute giving by the fiduciary was rendered invalid, but also the original “gift” by the donor. Thus, the fiduciary can neither keep the “gift” nor give it away. Such a law does not seem to be unjust. Thus in the Law of France, Belgium and the Netherlands. In Italian and Portuguese Law, the principal giving is recognized as valid, but giving to the substitute is invalid.

Still another limit on the power freely to give gifts and donations is the law that forbids attaching to them impossible or illicit conditions. Unfortunately, my textbook does not give concrete examples of impossible and illicit conditions. However, it seems to me that if the recipient has to fulfill any condition, in order to receive a gift, then in a sense he is paying for it, and the transfer no longer satisfies the definition of a gift, i.e., handed over gratis.

Again we can ask the question, “What has all the foregoing to do with morality?”

In this regard my textbook speaks only of testamentary giving and he discusses both the legality and the morality [sinful or not] of giving gifts out of one’s estate to Foundations, religious or otherwise, and other pious or public charitable organizations, when the testator is survived by legal heirs.

Clearly, civil law has the authority, out of concern for the heirs, to limit the portion of the estate that goes to charity. It seems, further, that some countries have allowed for natural heirs of the deceased to receive a determined share of his estate, irrespective of how the will reads.

In our own country, testators may distribute the assets of their estate in whatever way they wish, with the exception that they cannot, in most states, totally exclude the widow from receiving a statutory share. In order totally to exclude children, special language has to be used in the will itself.

Thus, the question of what a testator may do lawfully differs from what he may do in conscience.

Despite the civil legality of excluding natural heirs from his estate, a testator is bound in justice to see to it that his surviving spouse and children are adequately provided for. This is especially true if the children are minors.

Similarly, the testator cannot in good conscience favor one of his heirs over the other without a sufficiently good reason. In particular, it would be a sin against justice for him to fail to provide for “illegitimate” offspring. Only reasonable differences in the amount of the bequests, based upon the particular needs and circumstances of each of the natural heirs, may be written with a clear conscience into a will by the testator.

The obligation of a testator to provide for his surviving brothers and sisters [and other collateral relatives] is only a slight one, and if he leaves them out he does them no injustice. But if any of his brothers and sisters were suffering want or were needy in regard to basic human necessities, it would be a sin against the virtue of Piety for the testator to fail to make provision for the said indigent siblings.

Fifth Question – Legal [Intestate] Succession

Intestate succession is the transfer of the assets of a deceased person who has not distributed them by a last Will and testament. This is done pursuant to civil law. It pertains to the public good that this be done in a reasonable and equitable manner. A transfer of ownership of this kind is treated along with gifts and donations because it is presumed that the Intestate wills that his possessions fall to his natural heirs.

There is a certain order that is observed when it comes to determining the heirs, also known as successors of the deceased. A distinction is made also between regular and irregular heirs.

The regular heirs are those who, in virtue of a blood relationship to the decedent, ipso facto (by that very fact) inherit the goods and rights of the deceased [Intestate] relative. The irregular heirs are those who are successors in interest by operation of law or in virtue of a judicial determination.

There is a certain order that is observed in determining the regular (or natural) heirs.

First in line are the direct descendants of the deceased. Normally they are his own children, whether natural or adoptive. If the children predecease their Intestate parent, their own children, the decedent’s grandchildren, are the regular heirs.

When direct descendants are wanting, the parents of the deceased are the regular (natural) heirs.

If the parents are wanting, the siblings of the decedent are the heirs. Should his siblings all have predeceased him, and he has surviving nieces and nephews, these are subrogated into the place of their parents, by representation.

Lacking nieces and nephews, the heirs are the grandparents of the deceased in two lines, the paternal and the maternal, equally.

If these also are wanting, then the heirs are the collateral relatives, i.e., cousins.

The above is a general order of discerning the heirs of an Intestate decedent. The civil law must be consulted as to the specific order prevailing in individual Nations or States.

The irregular heirs (because not blood relatives) are of two kinds. First a surviving spouse, and second, the State or Fisc.

When the Intestate leaves neither surviving spouse nor heirs, his property is said to escheat to the State of which he died a citizen.

Excluded from sharing in the inheritance are descendants conceived after the death of the decedent. Likewise, by law, they are excluded who, though otherwise numbered among the heirs, have murdered or attempted to murder the decedent, or who have falsely accused him of a capital crime, along with any other heirs who were their accomplices, aiders and abettors.

Interestingly enough, no heir is obliged to accept what he has legally inherited. As in the case of promises of gifts between living persons, the would-be recipient must agree to accept property offered him by the law of Intestate succession. The reason for this is that, together with rights to the property, the heir also inherits the burdens and liabilities of the decedent’s, estate. Once an heir has accepted, the inheritable rights and obligations connected with the estate are irrevocably his to enforce or to fulfill.

Should the heir repudiate, and this has to be done expressly and explicitly, he is deemed to have never been an heir, and is thus free from liability for all the debts and obligations of the decedent.

But even as I write this, it occurs to me that in our country it may never be necessary for an heir to repudiate because of debts outstanding against the estate of his decedent. Our probate laws require that all creditors file their claims against the estate within a certain period of time following the death of the deceased. When timely done, the creditors are entitled to payment from the estate assets before distribution to the heirs. In that way, what remains of the estate at the time of final distribution is free of liability.

That brings us to the end of Chapter III of this Section of the Treatise on Commutative Justice. Next we will treat of Bilateral Contracts of Exchange.

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