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  • Gifts, Donations and Donor Intent in the Canon Law of the Catholic Church
  • Ronny E. Jenkins (bio)

Gift giving constitutes one of the most common and meaningful interactions between human persons. It is at the same time one of the most complex given the impact it has on both individuals and society. It assists in the forming and maintaining of relationships; it allows for the expression of altruistic behavior, including religious devotion; and it influences the economic status of persons, families and communities. Because of these significant influences and roles of gift giving, the Western legal tradition has struggled through the centuries to regulate gift transfers in a manner that respects the human dimension of the act. It has not always met with success. As Richard Hyland expresses it in his recent, masterful work on comparative gift law, "In attempting to govern the giving of gifts, the law undertakes a mission somewhat like wrestling with Proteus—the kind of task at which generally only epic heroes have been successful."1 [End Page 76]

The ecclesiastical legal tradition, like that of its civil and common law counterparts, has also long addressed the giving and receiving of gifts, most especially those born of pious acts, such as donations to the Church or the offering of stipends for the celebration of Mass.2 Current ecclesiastical law does so as well. It provides norms governing inter vivos gifts to physical and juridic persons, gifts causa mortis, including last wills and testaments, and various particular forms of gift transfers, such as those that are used to establish trusts or pious foundations. With regard to all gift acts, one overarching goal of the ecclesiastical law is to protect the intention of the giver of the gift. This, in turn, relates to the fundamental spiritual nature of gifts offered to the Church.

The purpose of this article is to present a general introduction to ecclesiastical gift law. In this regard, its aim must remain modest. As with secular gift law, the canonical discipline presents a complex legal subject that relates to many areas of the Church's law and discipline. The canon law also mandates due regard for applicable secular law when appropriate. This might include contract law, law on trusts and other similar entities, financial and tax regulations, family law, and corporate law, to name only a few areas. This article will not enter into those many related spheres of interest to gift law. Instead it will address three broad areas. It will first discuss common elements of gift giving seen from the perspective of the law in general, from the perspective of the civil, common and canonical legal traditions. It will then address characteristics of gift law particular to the canonical system, including donor intent as understood in ecclesiastical law. Finally, it will conclude by examining various legal institutes of the Catholic Church where donor intent plays an especially critical role.

I. Legal Elements of Gift Acts

Before beginning an extended discussion of gift law and donor intent in the canon law, it will be helpful to consider a generally acceptable legal [End Page 77] definition of gift giving and with that each of the elements that are needed for an act to constitute a valid gift transfer. Much of what follows is common to both secular and canonical law in the Western tradition. It will be presented here on a fairly general level with suitable commentary when needed on how the legal traditions differ on their approach to gift law.

A simple legal definition of a gift transfer comes to us already from the Roman law. The essence of it has been adopted by legal systems through the ages, and it retains relevance in many contemporary systems: "Gifts are those things which are handed over without any necessity of law or duty, but voluntarily."3 Put in negative terms, "One does not give who does so to fulfill an obligation."4 A gift, then, is a gratuitous and voluntary transfer. A modern attempt to define the gift transaction includes these elements as well, and then ventures further into categories of motivation for the gift transfer: "A voluntary transfer that is made, or at least...


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