It is therefore of no small
importance to make this specific difference intelligible, and to
draw attention to it.
37. I. The Contract of Donation.
(Pactum Donationis).
The contract of donation signifies the gratuitous alienation
(gratis) of a thing or right that is mine. It involves a relation
between me as the donor (donans), and another person as the donatory
(donatarius), in accordance with the principle of private right, by
which what is mine is transferred to the latter, on his acceptance
of it, as a gift (donum). However, it is not to be presumed that I
have voluntarily bound myself thereby so as to be compelled to keep my
promise, and that I have thus given away my freedom gratuitously, and,
as it were, to that extent thrown myself away. Nemo suum jactare
praesumitur. But this is what would happen, under such
circumstances, according to the principle of right in the civil state;
for in this sphere the donatory can compel me, under certain
conditions, to perform my promise. If, then, the case comes before a
court, according to the conditions of public right, it must either
be presumed that the donor has consented to such compulsion, or the
court would give no regard, in the sentence, to the consideration as
to whether he intended to reserve the right to resile from his promise
or not; but would only refer to what is certain, namely, the condition
of the promise and the acceptance of the donatory.
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