Donation in Spain According to the Spanish Civil Code
Articles 618 et seq. of the Spanish Civil Code (“CC”) regulate the concept of donation, which define the concept as “an act of liberality under which one person transfers one good free of charge in favour of another person who accepts it.”
There exists an essential prerequisite that the donee (the person who receives the donation) accepts the donation. In this regard, the Spanish Supreme Court affirmed in its October 25, 2013 sentence that “for the donation to be effective and, thus, to revert back, it must fulfill the prerequisite of acceptance.”
Concerning donations and their effects, one can distinguish two scenarios:
- Donations that produce their effects inter vivos: Article 621 of the CC regulates this concept, which establishes that contracts and general provisions on obligations will govern this type of donation. Concerning their effects, Articles 1.254 et seq. of the CC govern.
- Donations that produce their effects causa mortis: they come into effect with the donor’s death, and therefore one should refer to the inheritance provisions in conformity with the CC in Articles 657 et seq. (i.e. the donor’s intent must be clear in his or her will).
Formal requirements to accept a donation in Spain include:
- The donee must be legally capable of accepting a donation.
- Legal representatives must act on behalf of those persons who are not entitled to contract.
- The donee must consider that his or her rights will be subrogated to the donor’s rights and actions in case of eviction.
The most frequent donation modalities in the Spanish legal system include:
- With onerous cause: Article 622 of the CC regulates this concept as well as donations that have inter vivos effects, which contract provisions also govern.
- Of an immovable good: The public advertisement (notarial deed) of an immovable good is mandatory to establish validity. This means that a donation contracted in a private document is not valid. In these deeds, it is necessary to list individually the donated goods and charges the person who receives the donations must satisfy.
Throughout his or her life, the donor must accept the type of donation. This may occur in the same deed or in another one; in the latter case, it is mandatory to notify the donee of the acceptance deed.
- Of a movable good: In this case, and opposite from the previous one, a writing or oral statement is necessary to establish the validity of the donation. Regarding an oral statement, the good requires simultaneous delivery. Otherwise, to take effect, a formalized writing must contain reference to the donation and its acceptance.
In the light of all of this according to the Spanish legal system concerning donations, depending on the form or the nature of the donated good, the donation must fulfill some prerequisites to be valid and fully produce its effects toward the one who receives it (the donee) and, if applicable, toward third parties.
Monika Bertram
Tags: donation Spain
