A donation, as a legal phenomenon, is not as simple as it might seem in practice. Although it may superficially appear to be done in an easy and straightforward manner, several legal prerequisites must be met for a donation to be legally valid. It is crucial to understand these prerequisites, as one might unintentionally get entangled in legal issues simply by trying to give an item to another person. Below, we will discuss some important aspects of donations that are of interest to the law.

1.What do we mean by the term ‘donation’?

In practice, a donation contract is essentially a promise made by one person (the donor) to another (the donee), wherein the former agrees to transfer a property to the latter, with the primary intention of increasing the donee’s wealth. The characteristic feature of a donation is that the donee has no legal obligations and merely accepts the benefit offered.

It is crucial that the donor intends to be legally bound by the donation contract=once the contract is concluded, the donor has made a promise to the donee and must fulfill it. We will explore the consequences of failing to fulfill this promise later. It is important to note that everyday acts of kindness between individuals are not legally considered donations (e.g., giving small sums of money to children by relatives).

Additionally, it is important to scrutinize the donations one makes, as if these donations infringe upon the legal share of heirs in the donor’s estate, the heirs can file a lawsuit against the donee to seek annulment of the donation, even many years after the donation was made, provided it affects their legal share.

2.How do we legally make a donation?

For a donation to be valid, the law requires certain conditions to be met. We will mention what applies in everyday practice, as the law also covers these situations. Specifically, a donation requires:

• The donor to make a promise to the donee to provide a property.
• This property can be specified (e.g., a car, an apartment, etc.) or even encompass the entire estate of the donor.
• The donation should increase the donee’s wealth, either by increasing assets or reducing liabilities (i.e., having fewer debts).
• It is not necessary for the donor’s wealth to decrease as a result of the donation.
• The donation object does not need to belong to the donor=since it is a promise, the object may belong to a third party until the promise is fulfilled.
• There must be an agreement between the parties for the lack of consideration, meaning the provision from one to the other is done gratuitously without any expectation or claim for return from the other side.
• If the donee accepts the donor’s proposal to conclude the donation, a legal cause is established for the donee to retain the benefit in their estate=without this legal cause, the donee would be obliged to return it to the donor.

3.What document is required?

Regarding the necessary form for concluding a donation contract and its validity, the law is clear. Specifically, for the donation of any object, a notarial document must be drafted for the donation to develop its legal consequences. This applies to both movable and immovable property. This matter is significant because, generally, only real estate requires a notarial document, while movable properties can be transferred by mere delivery (except for cars, which are subject to special rules).

The above stipulations apply to the donation contract and any other contract concluded to execute the original one=if a pre-agreement is made, it must also be in notarial form, following the general rule that the pre-agreement form must match that of the main contract. The same applies to the transfer contract of the property, which will be executed when the donation is made to the donee.

To maintain transaction security, the legislator provides a significant exception when the necessary notarial form for the donation is not adhered to, but the item is delivered to the donee. Specifically, it is stated that the donation will be valid despite the lack of form, as long as the item is delivered to the donee, signifying execution. However, this exception does not apply to the donation of real estate, where other rules apply, with the notarial form and the necessity of recording the deed being the most important among them.

4.Is the Donor Liable for the Donated Item?Under What Terms?

The law sets specific measures of liability for the donor to treat them favorably. It specifies that the donor is liable to the donee only if they acted with intent (dolus) or gross negligence. This liability clause generally pertains to the delivery of the item from the donor to the donee, addressing scenarios like non-delivery or delayed delivery. The parties can, however, agree on a higher degree of liability for the donor, such as being liable even for slight negligence.

Regarding the actual and legal defects of the item, the donor is generally not liable if the item has defects. However, the donor will be liable to the donee if they promised that the item was defect-free or if they intentionally concealed a defect they knew about. The donor is not liable if the donee knew about the defect and accepted the item without reservation; in such a case, the donee cannot later claim the defect.

If any of the above exceptions apply and the donor is liable, the donee will have a claim against the donor to correct the defects and compensate for any damage caused by the defects. It is important to note that it is different if the item lacks a specific attribute versus causing damage to the donee’s property due to its defectiveness, which might lead to an accident. In the latter case, the donor owes greater compensation to the donee for the damage incurred.

5.For What Reasons Can a Donation Be Revoked?

The law allows the donor to revoke the donation under certain conditions specified by law. This means the legal basis for the donee retaining the benefit ceases to exist, allowing the donor to reclaim it, even through a lawsuit for unjust enrichment. The reasons for which a donation can be revoked are as follows:

• If the donee showed ingratitude towards the donor, such as committing a serious offense against the donor, their spouse, or close relative. This includes ceasing to support the donor if legally obligated to do so.
• If the donee unlawfully killed or attempted to kill the donor with intent. The same applies if the donee prevented the donor from revoking the donation. In this case, the donor’s heirs individually have the right to revoke the donation since the donor is no longer alive to do so.
• If the donation was made with a condition (legally referred to as a mode), and the donee, despite receiving the benefit, fails to fulfill the condition set by the donor for any reason. The donor’s heirs can also revoke the donation if a significant amount of time has passed since the donation contract was made.
• If the donor, after the donation was made, has a child within marriage or a child legally equivalent to one within marriage, and less than five years have passed since the donation contract was made. This presupposes that the donor had no children when the donation was initially made and thus acquired children later.

6.When is the Right to Revoke Lost?

Just as the law specifies reasons for which the donor can revoke a donation from the donee, there are also reasons why the right to revoke the donation can be lost. When this right is lost, the donation remains with the donee and cannot be reclaimed. The right to revoke is lost if:

• The donor forgives the donee for their offense/behavior against them. This forgiveness can be explicit or implied, inferred from the donor’s overall behavior. However, if the donation has already been revoked, forgiveness cannot be given for the offense.
• One year has passed since the donor learned of a revocation reason, as mentioned above, and did not revoke the donation. If the donee committed multiple offenses, this time limit starts from the last offense.
• The donee dies at the time when the donor decides to revoke the donation. This is to ensure that the donee’s heirs are not held accountable for the donee’s actions, especially if a long period has passed.
• The donor has renounced the right to revoke. It is important to note that only a subsequent renunciation by the donor is allowed, meaning after they have learned of the reason for revocation and provided that the conditions for revoking the donation are indeed met.

7.Can the Donor Refuse to Execute the Donation?

In many types of donations, the donor initially promises the donee that they will donate the item and later proceed with transferring it. However, in the meantime, the donor’s financial situation may worsen for any reason, making it impossible for them to fulfill the donation they promised to the donee.

To legally protect the donor, the law allows them to invoke the so-called “benefit of poverty” defense. This means the donor can claim that their poor financial condition prevents them from transferring the promised item to the donee. This also applies if a close family member (spouse, children, etc.) of the donor is in a similarly bad financial condition.

It is noteworthy that the reason for the donor’s or their relatives’ poor financial condition is irrelevant to the law=even if they caused their own poverty, they can still invoke this defense against the donee. Additionally, since this is a temporary situation, the donor’s financial condition might change in the future. Hence, this defense is temporary, and the donee might be able to claim the donation from the donor in the future.

8.Can I Make a Donation with Conditions?Is this Legal?

Often, especially among relatives, and to ensure that the donee will continue to support the donor (if they are legally obligated to do so), it is agreed that the donation will be valid only if the donee performs or refrains from a specific act. The same rules for forming a donation apply here as well, meaning it must be made through a notarial deed.

The condition (referred to as a “mode” in legal terms) involves an act or omission by the donee for the donor or a third person (e.g., taking care of an elderly donor, repairing the house of a relative, etc.). It is irrelevant whether the mode has financial content or not. The obligation of the donee through the mode can also be periodic (e.g., the donee must pay the donor 100 euros each month).

If the donation clause concerning the mode is contrary to the law or public morals, it will be void and not enforced. However, the rest of the donation remains valid and continues to be in effect, as it is not affected by the invalidity of the mode. Additionally, the provision that the donee gives to execute the mode does not constitute a consideration for the donor; the contract remains a donation and not a sale, where different rules apply. In all cases, it is crucial to determine what the parties agreed upon and what they genuinely intended to agree on.

9.How Should the Mode be Executed for the Donation to be Valid?

When it comes to the execution of the mode based on which the donation has been established, several observations are necessary to clarify the situation. Specifically, the execution of the mode:

• Can be demanded by the person for whose benefit it has been stipulated (e.g., the donor’s heir, the state, or any third party). A person for whose benefit the mode has not been stipulated cannot demand its execution from the donee.
• The donee may refuse to execute the mode if the value of the donation’s object does not cover the objectively required expenses for executing the mode. This, of course, applies on the condition that the donee did not intentionally or negligently reduce the value of the donation’s object.
• If the donee unjustifiably refuses to execute the mode, they can be compelled by the beneficiaries mentioned above to execute it, even by filing a lawsuit.
• The rule in a donation with a mode is that the object of the donation must be given in advance by the donor to the donee, so that the donee can then execute the mode.
•  If the value of the donation’s object partially suffices for the execution of the mode, the donee is obligated to execute the mode to the extent that the expenses are covered by the value of the object. Here, the circumstances should also be examined to ensure that the donor’s claim for the execution of the mode does not appear abusive, meaning that it is not genuinely justified.

10.What is the Difference Between a Donation from a Special Moral Duty and a Regular Donation?

This type of donation differs from the ‘classic’ donation mentioned earlier in terms of the motivations behind it. Indeed, in this case, the donor provides due to an increased moral duty, not the kind seen daily in human transactions and relationships, a provision to the donee.

It is irrelevant how the parties characterized the donation, as only the judge is competent to determine if there is a special moral duty in this donation. A typical example of a special moral duty in a donation is the provision of items between siblings and generally relatives, especially when significant family events like a wedding or a child’s baptism are to occur. However, the criteria are flexible, and other cases may also fall under this category.

The rule that distinguishes a donation from a special moral duty is that it cannot be revoked for any of the reasons mentioned earlier. This is significant because even if the donee behaves ungratefully towards the donor, the latter cannot revoke the donation made. Nor can the donor file an unjust enrichment lawsuit to reclaim the given provision, as something given out of decency or special moral duty cannot be reclaimed through unjust enrichment.

 

Athina Kontogianni-Lawyer

The above does not constitute legal advice, and no responsibility is assumed for it. For more information, please contact us.