The concept of donation is regulated by Articles 618 et seq. of the Spanish Civil Code (Cc) and it defines itself as an act of liberality under which one person transfers one good free of charge in favour of another person, who accepts it.
This is an essential prerequisite that the donator (the person who receives the donation) accepts it. In this regard, the Supreme Court affirmed in its 25th October 2013 sentence that for the donation to be effective and, thus, to produce a reversional effect, it must fulfil the prerequisite of acceptance.
Concerning donations and their effects, one can distinguish two scenarios:
- Donations which produce their effects inter vivos: this scenario is regulated by art. 621 Cc, which establishes that this kind of donation will be governed by contracts and obligations general provisions. Concerning their effects, one has to refer to the provisions of Articles 1 254 et seq. of the Civil Code.
- Donations which 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 Spanish Civil Code in Articles 657 et seq, ie the donor’s will must be registered in his will.
The formal requirements to accept a donation in Spain are as follows:
- Do not be legally incapable
- In case of persons not entitled to a contract, the intervention must be realized by their legal representatives
- The one who accepts the donation will have to take into account that he will be subrogated to the donor’s rights and actions in case of eviction
Most frequently donation modalities considered in the Spanish legal system are as follows :
- With onerous cause: regulated with Article 622 of the Civil Code, as well as donations which produce their effects inter vivos, they are governed by the provisions of the contract.
- Of an immovable good: its public advertisement (notarial deed) is mandatory to be valid. It means that a donation contracted in a private document is not valid.
In such deeds, one must list individually the donated goods and the charges the person who receives the donations has to satisfy.
Acceptance of the kind of donation has to be done during the donor’s life. It can be done in the same deed or another one, in this case, the acceptance deed must be notified to the donator.
- Of a movable good: in this presumption, and on the contrary of the previous one, the donation to be valid can be done either in writing or orally. In this last assumption, the good must be delivered simultaneously. Otherwise, to take effect, the donation and its acceptance must be formalized in writing.
In light of all of this, one can deduce that according to the Spanish legal system concerning donations, depending on the form or the nature of the donated good, it must fulfil some prerequisites to be valid and to fully produce its effects towards the one who receives it (the donator) and, if need be, towards third parties.
For more information on donations in Spain,
