lesson 8 gratitous cintracts reduced

donation

a legal act where one person volunatrily trasnfers ownership of an asset to another without recieiving anything in return

• trasnfer= money property rights

• gratuitous contract= no payement or benefit recieved in return

• valid only when accepted by the donee and donor knows

  • without acceptance no legal trasnfer occurs

voluntary+free+accepted trasnffer of ownership=donation

key characteristics

act of liberality= based on genprisity

• no legal obligation to give

• no expectation of reward

• reflects freedom to dispose of property

gratuitous disposition= only one party benefits

• donor loses assets; donee gains benefit

• no counter performance

• disitnguishes from sale or echange as onerous contracts

intention to give= animus donandi

• donor must genuinley intend to give freely

  • pressure obligation or hidden compensation= not a valid donation

• essential element

  • if missing an act may be a loan, payement or mistake

acceptance by donnee

• acceptance creates legal affects= the ownership trasnfers

  • donation not valid without acceptance

• no one can be forced to recieve a gift

legal nature

contractual nature= offer + acceptance

• requires donors consent (offer)

• requires donees acceptance (acceptance)

but differs from typical contracts= no reciprical obligations

• based on genorisity not exchange

• burden mainly on the donor

spanish law=a donation is a special type of contract= gratuitous not onerous

• art 618cc= defines donation

• art 609cc= donation as a way to aquire ownership

other types of donations (not pure)

remuneratory donation art 619cc= given as a reward for a past service

• services must not have been legally owed ie giving money to someone who helped voluntarily

• does not include payement for a contractual duty

• hybrid nature= dpnation + past service connection

modal donation= includes a condition or olbigation

• still a donation but not purely gratiutious as the donee bears a burden

  • 100 euros on the condition it is used for education

special types of donations

promissory donation= a promise to donate in the future

• not enforceable unless formal requirements are met (verbal or written for movable, public deed for immoveable)

mortis cause donation= made in contemplation of death

• donation takes effect upon death

• governed by sucession law not contract law

disguised donations= appear as another contract ie sale but are actually donations

• selling a house to daughter for 1 euro

• courts may reclassify as a donation

• invalid donation if does not comply with formalities

capacity of tje donor art 624

the donor must have

• the capacity to contract

  • understand the act

  • can act freely (without representation )

  • no defects of consent (fraud mistake coercison)

• power to dispose

  • must own the property= cannot donate property not owned

  • property must be trasnferable = cannot donate alienable property ie public housing

donation is serious as the donor permanently looses assets so strict protection compared to capacity of the donee who benefits

capacity of the donee art 625-628

more flexible rules

• any person can recieve donations

• if lacking capacity= accepted by representative

  • minor= parent accepts

  • incapacitated= guardian accepts

• special cases:

  • urborn child= donation valid only if child born alive

  • legal persons ie companies= valid subject to internal rules on donations

object of the donation

what can be donated

• moveable property ie cars money

• immoveable property ie land houses

• rights ie shares usufruct

requirements

• lawful object

• determinable object

• currently owned by donor

  • future assets art 635= cannot be donated=only what is presently owned

limitations on donations= reduced

reservation of assets art 634cc= donor must keep enough for their own substanance

• prevents self impoverishment

reduction of inofficious donations (art 636cc)= protects forced heirs

• if too much is donated, donations may be reduced after the death of the donor

• for the benefit of the childrens estate

formal requirements

ad solemnitatem= requirements are essential for the valididty of a donation between the parties not just for effect on third parties

• moveable property art 632cc=

  • if donation delivered immediately= oral or written

  • if donation delivered later= must be in writing for certainty

• immoveable property art 633cc= stricter due to high economic value

  • publoc deed via a notory

  • acceptence in the same or seperat public document

  • donor must be notified of acceptance

perfection of donation

requirements

• acceptance by donee art 630cc

• knowledge by donor art 623 629cc

  • acceptance alone is not enough

• main effect= trasnfer of ownership

  • formmalities satified + donation is perfected= trasnfer

  • donee become owner; donor loses all rights

warranty against eviction art 638 cc

• pure donations= no warranty of eviction

  • the donee recieves the asset as it is

  • protects the genoristy of the donor

• modal donation= warranty limited to the value of the burden on the donee

  • protects the donee when they are burdened with an obligation/conidtion

  • land worth 1000 euros donated; 200 euro obligation on the land= liability for the donor limited to 200 euros

revocation of donations

• generally donations are irrevocable

• excpetions

  • supervenience of children art 644 646cc= the donor later has children or past children emerge

    • protect the heirs estate

  • ingratitutde art 648cc= serious misconduct or grave disrepsct against the donor

    • ie violence against the donor

  • in modal donations= non performance of burdens art 657cc

    • donee fails conidition ie money donated for education used otherwise

commodatum art 1741-52cc

a free loan of use/enjoyment of a non fungible thing to be returned

• gratitutous= free

  • nopayement= a lease if payement required

• temporary use only

• ownership is not trasnferred = just the right of enjoyment

  • no right to fruits or profits

• must return the same object= specific object not a replacement in kind

  • cannot be money as this is fungible/replaceable

obligations of the borrower

• use properly= use as expressly agreed

• duty of care= return in the same condition recieved as possible

  • liable for damage caused negligently or fault

• return the same object= not a replacement in kind

• no misue= misue may lead to liability or termination

obligations of the lender

• retians ownership= only the right of use is trasnferred

• can demand return after agreed time or use is up

  • cannot demand early return unless expressly agreed or legally judsitifed

mandate art 1709-39

agent acts on behalf of a principle

• usually gratuitous art 1711cc= presumed to be free

  • can be remunerated if expressly agreed in contract

• acts within authority delegated= binds principal

• acts outside of authority deegated= not binding unless ratified

deposit art 1758cc

despositary recieves property to keep safe and return

• real contract= formed through acceptance+ delivery of the thing

  • no depsoit contract if thing not delivered

• custody only= right of safekewping,

  • no use of object unless authorised

• usually gratituous= without payement

  • can be remunerated if expressly agreed

obligations

• safekeeping= take reasonable care of the asset

  • standard of care depends on object

  • protect from theft loss and damage

• return= return the same object in the same condition no replacement in kind