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The delivery requirement

| Tuesday, November 30, 2021

“For your penance, offer a prayer of gratitude for your Catholic faith.” I was given this task by a priest in the confessional a couple of weeks ago, and after offering that prayer, I kind of fell down a philosophical rabbit hole: what does it mean that the faith is my own? The possessive pronoun “your” implies that my faith is a thing I have, or a possession I have acquired. What if there were an entire body of law dedicated to mediating the relationships between people and their things and possessions …

Sure enough, such a body of law does exist. Each spring, first-year law students at Notre Dame Law School take Property, a survey course on the wide variety of legal frameworks dealing with the stuff we have and the relationships people have with each other where that stuff is implicated. You name it, property law probably has something to deal with it. How could Taylor Swift legally re-record “Fearless” and “Red?” Look to intellectual property law and its separation of the copyright of a song from the copyright of a recording! How do we decide who gets to use how much water for what? Look to water law (yes, that’s a thing), with its different rules in West Coast and East Coast states on that very question. Oil, gas, minerals, dinosaur bones, name/image/likeness, visual art … all of these have bodies of law with more or less internally consistent principles of their own!

But during the semester, students learn at least two important things (more go unmentioned here) that are relevant to my internal philosophical dialogue about “my” Catholic faith. 

First: all title is relative. Traditionally, the common law would not recognize an absolute owner of anything; the law would only recognize someone as having a better property right than another. So, for instance, if I sue Matthew claiming that I own a parcel of land (keeping with the tradition of every 1L Property casebook ever, let’s call it Blackacre), and Matthew counterclaims saying he’s the actual owner, the court could find for me and say that against Matthew, I’m Blackacre’s rightful owner. Great, I have a property right … not so fast. If Mark then sues me saying he’s the actual owner of Blackacre, the court could come right back and affirm that claim instead. The court wouldn’t have just pulled a legal flip-flop – the whole point is that Mark has a better “claim of right” than I do to Blackacre, but I have a better claim of right than Matthew. But if all title is relative, then who has the best claim of right in all the land? In the United Kingdom, that would be the king. So, the government, acting in the name of the Crown, could declare any property royal and that would be the end of it, for all title is relative. (Here in the States, while the ability to do this is restricted by the Fifth Amendment’s requirement that the holder of a property right infringed by the government be given “just compensation,” federal and state governments both retain and use this authority, and a majority of states still use the philosophical underpinnings of relative title to justify the move.) And so it goes with my faith: while I might have better title to the Catholic faith (though not by much) than someone who isn’t Catholic, all title is relative, and at the end of the day, we only have the faith that we do because we were given that faith by God.

Given, I say? Yes, indeed, which gets us to the second thing: when gifts are given among the living (inter vivos), these three requirements are all that remain: intent, acceptance and delivery, and the greatest of these is delivery. While Lucius Malfoy (of the Harry Potter series) might have a case at common law that his “gift” of a sock to Dobby the house-elf fails for lack of intent, the vast majority of salty givers of things are going to make the case that the gift was not delivered properly. So the common law recognizes three (four, if you have a sense of humor) ways that a gift can be delivered. The first is “actual delivery” — if I literally hand you the thing I mean to give you, and you take the thing from me (thereby accepting it), that’s it; you have been given the thing, no ifs, ands or buts about it. But what about things that can’t be handed over like that, like cars or land? There, the law recognizes “constructive delivery.” If I give you the keys to my car, intending by that delivery to give you the car itself, then you own the car. Likewise, if I convey land to you by writing up a deed and handing you the deed, then you own the land. This is simple enough. But what if it’s not land (so I can’t write a deed) and there’s not some connection to the item, like keys to a car? Sometimes, courts will recognize the “symbolic delivery” of a gift, like giving “keys” to a painting that the gift-giver has decided to hold on to for safekeeping. And then there’s “B.S. delivery,” describing the times where courts want to find that a gift was given but kind of have to make up how it was “delivered” to satisfy the delivery requirement.

So how does the common law of inter vivos gifts apply to faith? The answer is this: since it is through Baptism, Confirmation and Holy Communion that we are initiated into the faith; Holy Communion, Confession and Anointing of the Sick that we are nourished while of faith; and Holy Orders and Matrimony that we unite our faith with our life vocation, each of these sacraments constitutes the delivery of the gift of faith from God to us. The Catechism calls the sacraments “efficacious signs of grace, instituted by Christ and entrusted to the Church, by which divine life is dispensed to us” (CCC 1131). This isn’t B.S. delivery. It’s not symbolic delivery. It’s not even constructive delivery — if the Catechism says the sacraments are efficacious, the only conclusion is that we’re dealing with actual delivery here! Further, it’s clear, from these sacraments’ having been instituted by Christ, that our Heavenly Father intends to give us this gift. So all that’s left is for us to accept. As the season of Advent (my favorite liturgical season!) begins, finals approach and the temptation to fall into the Culture of Busy becomes ever more present, may we claim the faith as our own this week, accepting delivery of that gift which God has intended to give us all along.

Devin is a member of Notre Dame Law School’s class of 2023. Originally from Farwell, Michigan, he is a 2020 graduate of Michigan State University’s James Madison College. In addition to serving as a teaching assistant at the law school, in his free time, he sings with the Notre Dame Folk Choir and discusses the legal developments of the day with anyone who will listen. He can be reached at [email protected] or @DevinJHumphreys on Twitter.

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

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