The donation is a very notarial act. If it falls on real estate, it is one of the few cases in our legal system where the public deed is a requirement of its existence; If it falls on money, the tax laws of the different autonomous communities usually require to enjoy the existing bonuses that the donation be made in a public deed, as you can see, in this entrance and if it falls on shares or shares of companies, the deed is the way to prove the status of partner, for the exercise of social rights.
THE PURPOSES OF THE DONATION.
The donation, apparently, is a gift. But, only apparently, because reality tells us that what is sought with the donation is usually something very different. Really, there would only be an authentic spirit of liberality in the donation that is made to an unknown person, but most of the time, they are constituted as a means of payment for unpaid services or attention, in an advance on inheritance and in this way do tax planning, or also, and why not say it, in a means of using family members as front men.
I am not saying that any of these purposes should receive any kind of reproach, but it should be kept in mind when making a donation, what is it that is wanted with it, to articulate it in the most convenient way, and For this, a visit to the notary, I think it becomes essential, since no one better than the Notary can advise on those clauses that best suit the purposes of the donor and that will justify the acceptance of the donee.
I make this introduction, due to a query that we have received these days in my office, the content of which I will not reveal, but which is very indicative of the misuse or incorrect use of the legal institutions that we have at our disposal.
THE PURE DONATION AND THE DONATION WITH SPECIAL CLAUSES.
Most of the donations are articulated as pure donations, which means that one person gives a good and another receives it, permanently. However, in the case of donations from parents to children, I have noticed from my experience that the father continues to be aware that he owns what was donated, despite the fact that it is in the name of the child, and with this awareness, After having made the donation, he intends to use the donated property for his own purpose, and finds that he cannot, because the property is in the name of the child.
For this reason, I think it is very important to make a reference to the possible agreements that can be established in donations, and their usefulness, avoiding any legal discussion, with the sole purpose of making them known.
Such agreements added to the donation would be the donation with reservation of the power to dispose, the donation with dismemberment of the usufruct and bare ownership, the donation with a reversion agreement, the donation with the obligation to pay the donor's debts, the conditional donation, the donation with an improvement agreement, or the donation with a snack waiver.
Obviously, these agreements can be accumulated, and the joint play of all of them opens up a huge range of possibilities, to adjust the donation to the real needs and concerns of the parties.
THE DONATION WITH RESERVATION OF THE RIGHT TO DISPOSE OF THE DONATED ASSETS.
It is collected in article 639 CC that tells us “The donor may reserve the right to dispose of some of the donated goods, or of any amount charged to them; but, if he dies without having made use of this right, the assets or the amount that would have been reserved will belong to the donee.”
From a practical point of view, the idea of this donation is to allow the donor to retain the possibility of obtaining money, charged to the donated property, either through its sale or through its mortgage, or even, if the reserve is of have a title to mortis causa, better adjust the hereditary distribution between the different children. Also, it could serve, in the case of donations of goods to minors, to avoid the judicial authorization for their sale.
The reservation of the power to dispose can be articulated with a great amplitude, thus it could be by any title, only for consideration or free of charge, encumber the asset but not dispose of it, dispose of the asset only in favor of a certain circle of people, dispose only under certain circumstances...
But in essence with this donation, the donor is protected against a possible change in their economic circumstances.
THE DONATION OF USUFRUCT AND BARE OWNERSHIP.
It is collected in article 640 CC that tells us The property may also be donated to one person and the usufruct to another or others, with the limitation established in article 781 of this Code..
Although there is talk that the usufruct can be donated to one person and the bare ownership to another, the most common thing is that it is the donor himself who reserves the usufruct, that is, the use and enjoyment of the property, and with it the profitability economic that you can generate through your rent, transmitting only the bare ownership.
For his part, the donee ensures the future perception of the asset, and against the possibility of receiving it by will, possible changes of opinion of the owner of the assets, being temporarily suspended in its use and enjoyment.
THE DONATION WITH REVERSAL AGREEMENT.
It is collected in Article 641 CC that tells us that The reversal may be validly established in favor of only the donor for any case and circumstances, but not in favor of other persons, but in the same cases and with the same limitations as determined by this Code for testamentary substitutions. The reversal stipulated by the donor in favor of a third party against the provisions of the previous paragraph, is void; but it will not produce the nullity of the donation.
It is, without a doubt, the type of donation that presents the greatest legal complexity. However, we will only refer to its possible utilities.
Thus, through this donation, the donor can reserve the right to recover ownership of the property, for himself in any case, or determine that the property goes to a third party, with certain limits, normally after the death of the first donee.
The donor may reserve the right to recover ownership of the property, in the event of the prior death of the donee, or due to a change in their circumstances, whether it be the behavior of the donee, their own economic situation. When in doubt whether it is possible to reserve the possibility of recovering ownership of the property at your own discretion, it is always convenient to establish, even if they are very slight, the causes that may motivate the reversal.
The establishment of the reversion in favor of a third party may be justified in that the asset remains within a certain family circle, avoiding the possibility of it being alienated to a stranger. In this way, the donee enjoys the property, but upon his death it will pass to the persons designated by the donor.
DONATION WITH OBLIGATION TO PAY THE DONOR'S DEBTS.
It is collected in Article 642 CC that tells us If the donation has been made imposing on the donee the obligation to pay the debts of the donor, as the clause does not contain another declaration, only the one obliged to pay those that appear contracted before will be understood.
THE CONDITIONAL DONATION
This is the conditional donation of a figure that presents similarities to the donation with a reversion agreement in favor of the donor, since the latter can recover ownership of the donated property.
The fundamental difference is that in the donation with a reversion agreement in favor of the donor, once the event has occurred, the recovery of the property operates (in principle) automatically, while in the conditional donation, non-compliance with the conditions by the donee, empowers the donor to demand the return of the property, so that if there is no consent of the donee to the revocation, it would be necessary to go to trial to prove compliance with the condition.
The conditions can be any type of obligation that the donor imposes on the donee, with the only limitation that the value of the obligation must be less than the value of the donated, otherwise
DONATION WITH IMPROVEMENT AGREEMENT AND SNACK WAIVER
The donation with an improvement agreement is included in article 825 CC according to which No donation by inter vivos contract, whether simple or for consideration, in favor of children or descendants, who are forced heirs, will be considered an improvement, if the donor has not expressly declared his desire to improvethe. For its part, article 1036 CC refers to the dispensation of collation when pointing out The collation will not take place between the forced heirs if the donor had so expressly provided or, if the donee repudiates the inheritance, except in the case in which the donation must be reduced as it is useless.
They are two figures that have certain similarities, since in both cases the general rule that donations are always on legitimate account is sought to be exempted.
Through the improvement agreement, the donor can influence the distribution of his inheritance among the forced heirs, since in this way what is donated is not imputed to the strict legitima of the donee, in which the donee participates, in terms of equality, with the rest of the forced heirs.
THE TIME OF THESE COVENANTS.
What we must point out, as something common to all these agreements or preventions alluded to in the previous lines, is that they must be stated in the donation deed itself, since the acceptance of the donor must fall on all the content of the same .
Doing it in a private document would lack any effectiveness, since it is the entire donation that must be recorded in a public deed, and doing it in a separate document, without being able to specify the consequences for all cases, would most likely be considered as a new donation.