Argentina
The new code "Civil and Commercial Code of the Nation (Argentina)") regulates this contract between articles 1542 and 1573, providing its definition in the first of them:
Acceptance must occur during the lifetime of the donor and the donee and can be express or tacit, but in the latter case, unexpressed acceptance must be interpreted restrictively and must conform to the rules established for the form of donations.[3].
The legal regulation simply prohibits the execution of donation contracts made under the suspensive condition of producing effects upon the death of the donor. This prohibition is strict, admitting no exceptions, an instrument of these characteristics is not valid either as a contract or as an act of last will.[3].
In cases of donations made to several people jointly, the acceptance of one of the donees applies to the entire donation, and in the event that the acceptance of one/s becomes impossible due to their death, or due to revocation of the donor with respect to them, the entire donation must be applied to those who accepted it.[3].
En lo referente a la capacidad para ser donante el art. 1548 CCCN provides that "Only people who have full capacity to dispose of their assets can donate. Emancipated minors can do so with the limitation of subsection b) of article 28".[4].
Regarding the object, its limitations are established, indicating that:
Finally, regarding the form, it is indicated that donations "must be made in a public deed, under penalty of nullity, donations of immovable things, those of registrable movable things and those of periodic or lifetime benefits".[6].
Background: Vélez departed from French Law and Roman Law, since these practically assimilated the donation with the provisions of last will or testaments. The codifier regulated it, then, as a contract, separately from the wills.
Regulation: It is regulated in the civil code in Book II, third section, correctly as a contract.
It is basically distinguished from a will by the following issues: it is an inter vivos act (mortis causa donations do not exist); Therefore, if a donation is established by a last will provision, it will not be valid as a contract but as a will, as long as the conditions of the latter are met.
Regarding the effects, the donation has legal effects from the moment it is accepted by the donee; On the other hand, the will, only after the death of the person who disposes of it.
As for the form, the donation is essentially formal when it concerns real estate, and is informal when it comes to manual donations. The will is always subject to the formalities established by law in this regard.
Finally, regarding revocation, the donation is essentially irrevocable; That is, revocation is only permitted for reasons specifically provided for in the law. The will, on the other hand, is essentially revocable and is subject to the provisions of the code in this regard.
Definition and characteristics: There will be a donation when one party - the donor - voluntarily and gratuitously obliges itself by an inter vivos act to transmit the ownership of a thing, which the other party - the donee - accepts.
From the definition the characters emerge: a- It is an act between the living. b- It is consensual in nature because it arises from the agreement of wills. c- It is free, because the donated benefit has no reason to exist in any other benefit. d- It is unilateral, because the only one obliged is the donor, without prejudice to the eventual obligations of the donee. e- contains the ´´animus donandi´´; that is, the intention to benefit or gratify. f- Solemn formal for donations of real estate and relative formal for the rest.
Acceptance: The acceptance of the donation by the donee is not mentioned in art. 1789, where the codifier defines the donation, but it is inferred from the rest of the chapter as it provides that the donation has legal effects from the moment it is accepted by the donee. On the other hand, the acceptance of the donation is important because as long as it is not accepted it can be revoked by the donor. The revocation can be express or tacit -p. e.g. when he sells the asset, encumbers it, etc. - if the donation is not accepted and the donee dies, his heirs will be unable to do anything since the donation has no effects, however, if the donor dies, the heirs are obliged to deliver the asset.
If there is a plurality of donees, we must distinguish whether they were donated separately or jointly. If it was the first way, then each one of them must accept the donation. If someone does not accept it, the rest do not have the right to increase. But if it was donated jointly, the acceptance of one produces effects with respect to the entire property, but not to all the remaining donees, that is, only those who have accepted it acquire the property in its entirety.
Liberalities that are not donations: the codifier, further clarifying the concept of donation, states in art. 1791 the liberalities that do not constitute a donation, the basis is that in all cases there is no alienation. The assumptions are the following: inc 1: -repealed-. inc. 2; give up a mortgage or bond; section 3: Failing to comply with a condition to which a possible right is subordinated even when it is intended to benefit. inc 4: Voluntary omission to lose an easement due to non-use of it. section 5: stop interrupting the acquisition prescription to benefit the owner. inc 6: -repealed-. inc 7: Free personal service even if it is normally charged for it. section 8: Acts by which goods are delivered or received, but not for the purpose of transferring ownership e.g. usufruct.
Object of the donation: The encoder in art. 1799 establishes that things that can be sold can be donated, which is why it refers us to sale. This reference is not entirely correct because it establishes that all things that can be the subject of contracts can be sold, even if they are future goods, as long as their sale is not prohibited. The particularity here is that the donation cannot include future assets, donations being void in that regard. The basis given is that the donor in this way has the power to prevent the donation by not incorporating the promised assets into his assets, and as long as he does not incorporate them, he will not be able to donate them either. Future assets should be understood as those that are not in the donor's assets, and the donor may also prevent them from entering it.
Another issue that the code addresses is the donation of all of the donor's present assets. Regarding this, we must clarify that it will be valid whenever a portion is reserved for subsistence or when the usufruct of the same or some portion is reserved. Without prejudice to the rights of creditors and heirs. They are void if not made under these conditions.
The cause in donation: In donation, the notion of cause, understood as cause-end or cause-purpose, is perfectly distinguished from the object. The object is the thing donated, while the cause is the reason for the donation, the animus donandi. In the case of donation between cohabitants, the donation would be valid when the cause-end is lawful, for example to repair the moral damage resulting from cohabitation. But it would not be valid if it were illegal, e.g. e.g. if the intention is to donate to maintain that type of relationship or subject the donor to a situation. They are not valid because they affect the determination of the person and, furthermore, the donation would be transformed into a contract whose object is prohibited, this in accordance with the general principles that govern the object of contracts.
Capacity: Regarding the capacity to donate, art. 1804 establishes that all those who can contract can donate, unless expressly prohibited by law. Therefore, it refers to the general principles of capacity, particularly to 1160. This last art. establishes that those who are absolutely incapable cannot contract, those who are relative in acts that the laws prohibit them from. So much for capacity indeed. Regarding the legal capacity, the same art. establishes that they cannot contract those in which they are expressly prohibited from contracting with a specific person, or for a specific purpose, or where the prohibition is specifically established in each contract. It also excludes professed religious, for whom it establishes the exception that they can do so as long as it is a cash sale or in the name of their convents. Failed traders are barred as well.
The art. 1805 establishes that parents can donate assets to their children, but the particularity of this is that if it is not specified to which account the donated assets correspond, the legal presumption is that it is made as an advance of the legitimate.
On the other hand, art. 1806 provides that the donation can be made to both people of natural and ideal existence, and this is consistent with what the code establishes in art. 54 and 55 where he defines the people and distinguishes the classes. The people of natural existence are human beings; p. e.g. unborn persons, prepubescent minors, pubescent minors, adults, etc. With respect to persons of ideal existence, that is, legal persons, the donation can be made as long as they exist; if they do not yet exist, the donation will not be valid except when it has the purpose of founding it.
The art. 1807 establishes legal disabilities, that is, those who are prevented from making donations. It regulates 6 cases, they cannot donate: the spouses between themselves, nor a spouse to the children of the other spouse from a different marriage - what this section is about protecting is the conjugal partnership - the husband without the consent of the wife or judicial authorization, this assumption has been virtually repealed, currently none of the spouses can donate without the consent of the other, the authorization of the judge is not viable. Another of the regulated assumptions is the impossibility of parents donating their children's assets without judicial authorization; guardians with respect to the assets of their wards, except for small gifts or remunerations; agents who do not have special power or general power to donate; family children, that is, minors without parental authorization. As for the relatively incapable, when they have their own job or profession they can donate but only what is related to those jobs. The situation of the emancipated is included in other provisions of the Civil Code, which establishes that they can enter into donation contracts, but the limitation that the code incorporates is that they cannot dispose of the assets that they have received free of charge.
The art. 1808 establishes, correlatively, who cannot receive donations, the assumptions are: The married woman - repealed -; the guardians and curators of the property of their wards when they are; the guardians and curators of their wards before payment of the balance and rendering of accounts; the leaders without the power to do so.
Another important issue regarding capacity in donations is that there is an exception to the general principles regarding when capacity is required by law. Capacity is required of the donor at the time of donating, and of the donee at receiving.
Form of donation: Let's deal with property donations first. the old art. 1810 established that those dealing with real estate, donations with charge, remunerative donations and those made between spouses for after death must be made by public deed or, failing that, before the local judge and two witnesses.
The art. 1810 has been rightly reformed because it is applicable to the time of Vélez and not to our days, where it makes no sense. The new art. establishes that donations of real estate and life benefits must be made in a public deed. It also establishes that art. 1185 by which the parties were obliged to take the legal form if they had not already done so. This art. It does not apply, therefore the form in donations of real estate and life benefits is solemn. In art. 1810 an exception is established; Donations made to the State can be made in administrative records and are proven that way.
It remains to analyze the form of manual donations: The codifier establishes that they are made by single delivery, they can even be made without a written act. The name manuals comes from the fact that they are given ´´from hand to hand´´; This responds to the background of the figure, which in this case is Spanish law and Roman law.
When we say, for the sake of delivery alone we must not forget that there may or may not be a tradition of the thing, e.g. e.g. There will be tradition when the donor gives the thing to the donee and the donee accepts it, but there will be no tradition if the donor states that he wants to donate a thing to the person who has possession of it.
**Proof of donation:**In matters of real estate, donations are proven by exhibiting the corresponding instrument, in the case, the deed. Donations to the State are proven by the corresponding administrative record.
Regarding movable property, that is, non-formal property, the code establishes that it is proven by public instrument, by private instrument or by judicial confession of the donor. Therefore, the general principles that govern the proof of contracts are altered, since witnesses and the extrajudicial confession of the donor are excluded as a means of proof.
A different issue is the proof of acceptance of the donation. In real estate, acceptance is proven by displaying the public deed recording the acceptance, it may be the same one in which the donation is recorded or it may be another. There is a presumption of acceptance of the donation, when it was made due to marriage, as long as the marriage has been celebrated.
Manual donations are presumed accepted when the donee received them. In the event of a dispute, it is the donor who must prove the opposite, for which he has all means of proof.
On the other hand, Vélez establishes that there is a presumption of donation, when something has been given to a person to whom a duty of gratification is owed, or when it has been given to a sibling, descendant or spouse; or when things of little value have been given to the poor, or to charitable establishments. The reason for the legal presumption is that there is a valid cause-end to assume that this is what the intention was intended to be.
Donation Species:.
Mexico
The Civil Code for the Federal District").
establishes a limit for the donation, which is to “reserve in possession or usufruct, what is necessary to live according to your circumstances” (Art. 2347), otherwise, it is a void donation, subject to revocation by the donor.[7] Likewise, when you have obligations to provide food, you must reserve the necessary assets for the fulfillment of this obligation; If not, it will be an inofficious donation and will be reduced proportionally for the fulfillment of said obligation (Art. 2348 of the CCDF), where the alimony creditor is competent to carry out the legal action of revocation.
It should be noted that the only way that the law allows for the transmission of organs is through donation, since it prohibits all types of commercialization of these.
The donated item must be delivered within the agreed time. If it has not been agreed, it will become due thirty days after an interpellation has been carried out judicially, or extrajudicially, before a notary or two witnesses. Likewise, the donated item must be delivered to the agreed place; If there is no such, it will be done at the donor's home, except if it is real estate, which, logically, will be delivered to the place where the donor is located.
The assets received through donation are alienated assets according to article 14, first section of the Federal Tax Code: "Disposal of assets is understood as: I. Any transfer of property, even in which the transferor reserves ownership of the alienated asset."
According to the Income Tax Law, from its first paragraph, it establishes that all people must pay taxes on all of their income regardless of its origin, this includes assets obtained through the figure of donation.
The same law indicates that legal entities residing in the country may deduct donations granted to educational institutions authorized to receive donations from Title III of this Law. These will be deductible provided that they are public establishments or owned by individuals that have authorization or recognition of official validity of studies in the terms of the General Education Law, are intended for the acquisition of investment goods, scientific research or the development of technology, as well as administrative expenses up to the amount, in the latter case, indicated. the Regulations of this Law, they are non-onerous or non-remunerative donations and provided that said institutions have not distributed remainders to their partners or members in the last five years.
The total amount of the donations referred to in this section will be deductible up to an amount that does not exceed 7% of the tax profit obtained by the taxpayer in the fiscal year immediately preceding the one in which the deduction is made. When donations are made in favor of the Federation, the federal entities, the municipalities, or their decentralized organizations, the deductible amount may not exceed 4% of the tax profit referred to in this paragraph, without in any case the limit of the total deduction, considering these donations and those made to other authorized donees, exceeding the aforementioned 7%. In accordance with article 119 of the Income Tax Law, income derived from the cases provided for in the Federal Tax Code is considered income from the sale of assets.