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Question received from a client – Donation – what it is and how it works
I would like to make a donation to one of my three sons by transferring the ownership of the house to the sea without having or creating problems for him and me. What should I evaluate?
According to the letter of Article 769 Civil Code, it is to be defined as the “contract by which, in the spirit of liberality, one party enriches the other, by arranging in favor of it its right or by assuming towards it a bonding“
The question, although simple and trivial hides implications and complications that have a strong impact, both on the donor and on the donor. First of all, it is good to make it clear that the donation must be “a donation”. By this we want to say that the donation must not “hide” other will than to transfer with a free and grateful soul a right or the assumption of an obligation (to give) to those who receive said “utility”.
If this is not the case, we will be talking about simulation of the donation, that is, disguising other kind of will.
To better understand our saying and taking inspiration from the question think of a donation aimed not at the liberality that a parent wants to make towards the son but, as an stratagem to pay less on the garbage of the second house, the donation . “can” be declared void and can then be revoked.
The elements to be brought here in attention, in the opinion of the writer, are to be sought first in the cause of the contract that can be seen in the “freedom of mind of the donor“.
The latter voluntarily accepting a reduction in his assets – by the sale of his own right (think of the transfer of a right of ownership) or an obligation to give (transfer of a sum of money) in favor of the donor’s assets increases (freely and out of gratitude) the value.
In addition, in front of that institute, we will talk about reciprocity, that is, performance and counter-performance. Think of the purchase agreement. On the one hand the seller transfers ownership of the property and on the other the buyer pays a price. There is only room in the donation for a free transfer free of charge.
The donation may not even provide for an obligation to make something. To provide an example of incorrect donation, “I am committed to renovating a house“.
The peculiarity of the donation resides, as mentioned, in its cause (the liberality of mind).
Like any contract, donation also requires the expression of will on the part of the donee (the one who receives the donation).
Donation should not be confused with natural bonds. Let us remember here that these are bonds that originate in morality or in a social duty. Therefore, the donation will always be a typical act with effects governed by the law.
It is clear, according to the letter of the following article 771 c.c. that the donation can only include present assets of the donor.
If it is understood to include future goods, the donation is to be considered void.
Another aspect to be evaluated by the donor will be the hereditary situation. In fact, if the house at the seaside at the time of the opening of “the succession” (death of the donor) were to affect the value of the legitimate’s quota (share of the assets recognized by law in favor of the other two son, in our case) it will almost certainly as result, in the absence of agreement between the sons, a trial will start.
The possibility of challenging a donation as an lesion of the legitimate’s quota is prescribed in 20 years from the act of the donation or in 10 years from the death of the donor.
The civil code states that:
‘The properties returned as a result of the reduction are free from any weight or mortgage that the bondholder or donor may have burdened them ….”
Bonds and mortgages remain effective if the reduction is required after twenty years after the transcription of the donation, except in this case the obligation of the donor to compensate the legitimists in cash because of the consequent lower value of the goods, provided that the demand is proposed within ten years of the opening of the succession.
“If the donors against whom the reduction was pronounced have alienated the donated properties to a third party and not twenty years have passed since the transcription of the donation, the legitimization, the premise of the excision of the donor’s assets, may ask the subsequent buyers, in the way and in the order in which you could ask the donors themselves, the return of the properties”.
The action to obtain restitution must be arranged according to the order of date of the alienations, beginning with the last one. The return of assets, the subject of the donation, may also be required against third-party buyers, subject to the effects of good faith possession.
The third buyer can free himself from the obligation to return the donated things in kind by paying the equivalent in money.
The course of the term is suspended against the spouse and relatives in a straight line of the donor who have notified and transcribed, against the donor and his lawsuits, an out-of-court act of opposition to the donation.
The right of the opponent is personal and renounceable. The opposition loses effect if it is not renewed before twenty years have passed since its transcription.”
In conclusion, the client must first be sure that there is an asset that does not affect the legitimate quotas of his other two sons.
Be sure of what he’s doing. Assessing the merit of the son and the decrease he will suffer at the level of assets.