The delivery requirement // The Observer



“For your penance, offer a prayer of gratitude for your Catholic faith.” A few weeks ago a confessional priest gave me this task, and after offering this prayer I kind of fell into a philosophical rabbit hole: what does it mean that faith is the mine? The possessive pronoun “your” implies that my faith is something that I have, or a possession that I have acquired. What if there was a whole body of law dedicated to mediating relationships between people and their things and possessions …

Indeed, such a body of laws exists. Every spring, freshman law students at Notre Dame Law School take a course on property, a survey of the wide variety of legal frameworks dealing with what we have and the relationships people have with each other. when these elements are involved. You name it, property law probably has something to do with it. How could Taylor Swift legally re-record “Intrepid” and “Red? “Look at the intellectual property law and its separation of the copyright of a song from the copyright of a recording! How do we decide who uses how much water for what? water (yes, that’s one thing), with its different rules in the west coast and east coast states on this very matter. Oil, gas, minerals, dinosaur bones, name / picture / likeness, visual art …

But over the course of the semester, students learn at least two important things (others are not mentioned here) that are relevant to my internal philosophical dialogue about “my” Catholic faith.

First: every title is relative. Traditionally, the common law would not recognize an absolute owner of anything; the law would only give someone a better right to property than another. So, for example, if I sue Matthew by claiming that I own a piece of land (in accordance with the tradition of every 1L Property case book ever, let’s call it Blackacre), and Matthew counterconvenes by saying that he is the owner real, the court could find for me and say that against Matthew, I am the rightful owner of Blackacre. Great, I have a property right… not so fast. If Mark is chasing me then saying It is the current owner of Blackacre, the court could come back right away and assert that claim instead. The court wouldn’t have just done a legal about-face – the point is, Mark has a better “claim of rights” than I do against Blackacre, but I have a better claim of rights than Matthew. But if every title is relative, then who has the better claim of rights over the whole country? In the UK it would be the king. So the government, acting on behalf of the Crown, could declare all royal property and that would be the end, for all title is relative. (Here in the United States, although the ability to do so is limited by the Fifth Amendment requirement that the holder of a government-violated property right receive “fair compensation,” the federal and state governments retain and use that authority, and a majority of states still use the philosophical underpinnings of the relative title to justify the move.) And so it is with my faith: although I may have a better title to the Catholic faith (but not many) that someone who is not Catholic, all the title is relative, and at the end of the day we don’t have the faith that we have because God gave us that faith.

Given, I say? Yes indeed, which brings us to the second thing: when gifts are given among the living (inter vivos), these three requirements are the only ones that remain: intention, acceptance and delivery, and the greatest of them is delivery. While Lucius Malfoy (from the Harry Potter series) might have a case in common law that his “gift” of a sock to Dobby the House Elf fails for lack of intent, the vast majority of hefty givers of things will make the case that the gift was not delivered correctly. Thus, the common law recognizes three (four, if you have a sense of humor) ways of delivering a gift. The first is “actual delivery” – if I literally hand you the thing I want to give you, and you take it back (and accept it as well), that’s it; you were given the thing, no ifs, no buts about it. But what about things that can’t be delivered like this, like cars or terrains? There, the law recognizes “constructive delivery”. If I give you the keys to my car, with the intention of giving you the car itself, then you own the car. Likewise, if I cede land to you by writing a deed and giving you the deed, then you own the land. It’s pretty straightforward. But what if it is not a land (so I cannot write an act) and there is no connection to the object, like the keys of a car? Sometimes courts will recognize the “symbolic delivery” of a gift, such as giving “keys” to a painting that the donor has decided to keep in a safe place. And then there’s “BS delivery,” describing times when the courts want to find that a gift has been offered but must somehow invent how it was “delivered” to meet the delivery requirement.

So how does the common law of inter vivos gifts apply to faith? The answer is as follows: since it is through Baptism, Confirmation and Holy Communion that we are initiated into the faith; Holy Communion, Confession and Anointing of the sick whom we nourish of faith; and of Order and Marriage that we unite our faith with our vocation of life, each of these sacraments constitutes the delivery of the gift of the faith of God to us. The Catechism calls the sacraments “effective signs of grace, instituted by Christ and entrusted to the Church, by which divine life is dispensed to us” (CCC 1131). This is not a BS delivery. It is not a symbolic delivery. It is not even a constructive childbirth – if the Catechism says that the sacraments are effective, the only conclusion is that this is a real childbirth! Moreover, it is clear that these sacraments were instituted by Christ, that our Heavenly Father intends to give us this gift. So all we have to do is accept. As the Advent season begins (my favorite liturgical season!) Meant to give us all throughout.

Devin is a member of the 2023 class of Notre Dame Law School. A native of Farwell, Michigan, he graduated in 2020 from James Madison College at Michigan State University. In addition to being a teaching assistant at law school, in his spare time he sings with the Notre Dame Folk Choir and discusses current legal developments with anyone willing to listen. He can be contacted at [email protected] or @DevinJHumphreys on Twitter.

The opinions expressed in this column are those of the author and not necessarily those of The Observer.

Tags: common law, Faith, possession, Property rights


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