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Critical reflections on the donation revocation for ingratitude regulated by the new civil code.

BUJOREL FLOREA

floreabuj orel@yahoo.com

Spiru Haret University, Bar Association Bucharest

1. Preliminary Considerations. The Revocation of the Donation Promise

As it has already been shown in the literature, (1) in principle donations are irrevocable. Although, in certain cases, strictly and limiting stipulated by law, donations can be revoked, with legal effects almost identical with those produced by the resolution of the synallagmatic contracts. (2)

Unlike the resolution of the synallagmatic contracts, for which their revocation is based exclusively on the guilt of the other parties, in the case of the donations, their revocation is based both on the guilt of the done and/or his successors in the fulfillment of the legal or contractual obligations and on the donor's will (in the last case when the donor is the spouse of the donee).

The legal causes for the revocation of the donations are:

--Revocation for ingratitude;

--Revocation for the unjustified non-fulfillment of charges;

--Revocation of the donation made between spouses.

The first two causes of revocation require the existence of the donee's guilt in the execution of the special obligations, while the third cause, which will be the object of a separate study, takes into account the simple manifestation of will of the donor spouse to revoke the donation made to the other spouse during the marriage. We also emphasize the fact that, according to Article 1021 Civil Code, the revocations for ingratitude and for the non-fulfillment of a charge do not lawfully operate, and consequently they should be settled by the court of justice. In other words, the revocation of the donation in these cases has a judiciary character. The legal causes of the donation revocation do not conflict with the principle of irrevocability, and thus they are not exceptions from this principle. (3)

The revocation will lawfully operate in the case of the donation promise (Article 1022 Civil Code), if prior to its execution appears one of the causes of revocation for ingratitude stipulated by law or when the material situation of the promisor deteriorated at such an extent that the execution of the promise became excessively onerous for him or the promisor became insolvent.

In our opinion, the lawful revocation of the donation promise operates at the moment of the deed of ingratitude or of the deterioration of the material state of the promisor or of his insolvency, which should have happened before signing the contract of donation. The conclusion of the existence of the excessively onerous contract of the donation promise has to be configured on the basis of some objective elements that should reveal unequivocally the circumstance that the promisor has a deteriorated material state or is in insolvency, because it is necessary the lawful revocation of the donation promise. Being a lawful revocation, the court of justice does not play any role in its pronouncement. In exchange, if the beneficiary of the promise of donation questions the fulfillment of the conditions that lead to revocation, then the court of justice is required to check to what extent these requirements are fulfilled. 2

2. Donation Revocation for Ingratitude (4)

In the doctrine (5) it was shown that "ingratitude is the opposite of recognition that the donee owes to the donor (...). Recognition does not represent a positive obligation, imposing only to the donee just to restrain from committing inadequate deeds against the donor." Thus, the tradition transmitted the idea that once a donation is received, this creates for the donee a moral obligation of recognition. (6)

Donation revocation for ingratitude represents a legal sanction that is applied to the ungrateful donee and thus the norms that regulate this matter are of strict interpretation, and cannot be applied to other juridical situations by analogy.

Although ingratitude presents similarities with the unworthiness to inherit (Article 958 and the following in the Civil Code) in the sense that they both sanction certain inacceptable human behavior, they should not be confused.

Firstly, ingratitude refers to donations, while unworthiness aims at the right to inherit.

Secondly, donation revocation for ingratitude can be done more easily than the removal from succession for unworthiness.

Thirdly, in the case of donation revocation for ingratitude, the person who files the complaint is the donor, while unworthiness can be noticed at the request of any interested person or ex officio, by the court of justice or by the public notary, on the basis of the court decision from which the unworthiness results.

Last, in the case of ingratitude, the donor has the faculty to decide if the deed of the donee is or not an ingratitude and if he forgives or not the donee. On the other hand, in the case of unworthiness, sanction operates lawfully, and the person who bequeathed cannot remove the effects of the unworthiness forgiving the unworthy successor.

So that the donation or the promise of donation should not be let at the judgement of the donor, the law-maker established the causes of ingratitude (Article 1023 Civil Code). Basically any donation can be revoked for ingratitude. A special situation is represented by the donations made to the future spouses or to one of them on the condition of the marriage conclusion. They do not produce effects if the marriage is not concluded, such donations being conceived as to be affected by the modality of the suspensive condition (Article 1030 Civil Code).

If the suspensive condition is fulfilled, these donations can be revoked also for ingratitude.

The causes of revocation for ingratitude are limitatively stipulated by law (Article 1023 Civil Code). These are:

--an attempt on the life of the donor or of a person close to him, or not letting know the donor about other people's intention to make an attempt on the life of the donor or of person close to him;

--penal deeds, cruelties or serious offences against the donor committed by the donee;

--the unjustified refuse to provide food to the donor in need.

The attempt on the life of the donor or of a person close to him is a deed committed by the donee with the intention to kill the mentioned persons. (7) It is not relevant if the action or the attempt on the life of these persons succeeded or not, or if the donor was not sentenced to prison for the committed deed. (8)

In the case of manslaughter of the donor or in the situation when the life of the donor was endangered by negligence or imprudence or in the case when the donor was killed by the mentally incompetent done (minor, irresponsible, intoxicated), the donation will not be cancelled. Another case of revocation for ingratitude is represented by the omissive deed of the donee, who did not inform the donor about other people's intention of attempt on his life, although he knew it. So that the revocation can be asked for this last case of ingratitude, the intention of attempt of the third party on the donor or on a person close to him should have materialized and the attempt should have taken place. (9)

The penal deeds, cruelties or serious offences against the donor committed by the donee take into account any penal deeds that were committed voluntarily. (10)

A large range of penal deeds belong to this case of donation revocation, such as: the crimes against the donor's body integrity or health, (11) the crimes against the person's freedom, (12) the crimes regarding the obligation to offer assistance to the people in danger, (13) the crimes of trafficking and exploitation of the vulnerable persons, (14) the crimes against freedom and sexual integrity, (15) the crimes harming the residence and the private life, (16) the crimes against the patrimony (17) etc.

It is of no relevance the value of the prejudice caused to the donor through the deed committed by the donee, because the ingratitude refers to the morality of the deed and not to the value of the prejudice. The court of justice will consider if the reason invoked by the donor for the donation revocation represents a penal deed committed by the donee against the donor and for which he is guilty. It is by execellence the court of justice's role to decide if it is the case to pronounce or not the donation revocation for the analyzed reason.

In the doctrine it was considered (18) that error on the victim (eror in personam), although it does not have any influence on the penal character of the deed committed by the donee, is relevant in case of donation revocation for ingratitude.

Consequently, if the donee confuses a third party with the donor and commits a crime against this person, the donation will not be cancelled, as it is not an intention against the donor. But if the done intended to commit the penal deed against the donor, and confused him with another person directing his deed against this one, the donation can be revoked for ingratitude, because the donee's intention was against the donor.

As regards the notion of cruelties, these designate the donee's actions that produce physical or psychical injuries (19) to the donor, and the lack of actions based on a certain attitude of the done, suggesting his lack of human feelings (for example the done abandons the donor in a dangerous and inaccessible place, exposed to cold weather and to wild animals aggression).

Serious offences involve actions that can harm the donor's dignity, honour or reputation. The actions of the donee, which the donor will evoke as insults against him, have to be censored by the court of justice. This will establish if the donee's actions are serious enough in order to represent ingratitude against the donor.

If the insults aim at the donor's reputation, the court will balance the donee's actions in relations with the renown the donor obtained, both in the public and private life. It is not relevant if the insults were launched against the donor in a public place or in a restrained framework, or if the injurious ingratitude was expressed verbally, through words, or in writing, or through gestures or other insulting manifestations. The appreciation of the seriousness of the insults is done by the supreme judge taking into account certain criteria such as: the social position of the donor and of the donee; the frequency of the insulting manifestations; if the insults were or not caused by the behavior of the donor (mutual insults), (20) as well as other special circumstances of the case. (21)

The unjustified refuse to provide food to the donor in need represents a cause of donation revocation for ingratitude, if certain conditions are fulfilled.

Thus, a first condition is that the refusal of food should be unjustified, in the sense that the donee, even if he has financial possibilities to provide food to the donor, simply refuses to do it.

The second condition is that the donor should be in need, which means that he does not have subsistence means, but also the fact that there are no other persons obliged to provide for the donor.

The third condition is represented by the value of the claims regarding the food aid requested by the donor. The aid required by the donor cannot exceed the value of the good received as a donation. (22) This value is established in conformity with the price of the donated good at the date of the food request, related to the state of the good at the moment the donation was made. (23) Thus, the value of the due food is variable, but it cannot exceed the value of the donated good. Consequently, if the donated good disappears fortuitously, the donee can refuse to provide the food aid, due to propter rem. (24)

The fourth condition consists in the acceptance by the donor of the food offered by the donee. (25) If the donor refused the food offered by the donee, the donation revocation for this cause cannot operate.

The donation cannot be revoked for ingratitude in the case of the refusal to provide the food to the donor if it is a donation with the charge to support the donor, and will be applied the norms governing the donation revocation for non-fulfillment of a charge and not those regarding the revocation for ingratitude. Jurisprudence (26) stipulated that in the situation when the good was donated to more people, the donation revocation will have effects only for the donee that is guilty of ingratitude.

Revocation for ingratitude represents a civil punishment that the lawmaker regulated against the ungrateful donee. This character of the revocation results not only from the cases in which the donation can be revoked, but also from the conditions of exercise and the effects of the court action for donation revocation due to ingratitude. Thus, court action for donation revocation can be exercised only in certain conditions.

First of all, as the action is strictly personal, the person who files the complaint is mainly the donor, entitled to appreciate if he should continue the action or, on the contrary, to forgive the ungrateful donee. (27) The silence and the inaction of the donor extended over the legal term represent an iuris et de iure (28) assumption of forgiveness. The person who files the complaint for donation revocation cannot renounce in advance, before the commitment of the ingratitude, in the content of the contract of donation. (29) In exchange, he can do this later, right before the expiration of the term stipulated by law for filing the complaint. Also, the donor can also forgive the ungrateful donee after he filed the case, by dropping the case, until the final decision and even after the decision becomes final. In these last situations, forgiveness is similar with the conclusion of a new donation. (30)

As an exception, the donor's heirs become the persons who file the complaint in revocation if [Article 1024 paragraph (3) Civil Code]:

--the donor died before the expiration of the term of a year calculated from the day when the donor knew that the donee committed the deed of ingratitude and he did not forgive him for this deed;

--the donor died without knowing the cause of revocation. In this case the heirs have to file the complaint for revocation in term of a year or since the date of the donor's death.

At the same time, the heirs can continue the action in revocation promoted by the donor.

Secondly, the passive processual capacity in the case of the action for donation revocation can belong only to the donee guilty of ingratitude.

If the donee dies before filing the complaint, this cannot be exercised against his heirs.

Unlike the old Civil Code [Article 833 paragraph (2)] that did not allow to be continued the action against the donee's heirs, solution criticized by the doctrine, (31) the provisions of the current Civil Code (Article 1024 paragraph (2), second thesis) allow, expressis verbis, to continue the action that requires the donation revocation in contradiction with the donee's heirs, if he dies after the complaint is filed.

Thirdly, the right to the action for donation revocation due to ingratitude has to be exercised, under the sanction of prescription, in term of a year since the day the donor knew that the donee committed the deed of ingratitude (Article 1024 paragraph (1) Civil Code). The doctrine related to the old Civil Code, (32) which did not refer to the legal nature of this term, considers in unanimity that it was a compliance period, and could not be susceptible of suspension, interruption and to reinstate the appeal. The Civil Code in force, unlike the previous legislation, specifies expressly (Article 1024 paragraph (1) Civil Code) that the right to exercise the action of donation revocation for ingratitude prescribes within one year since the day the donor knew that the done committed the deed of ingratitude.33 Consequently, to this term will be applied the legal regime of the extinctive prescription regarding the beginning, the suspension and interruption of the extinctive prescription regulated by the Civil Code (Article 2523-2543), unlike the compliance period that does not obey to the suspension and interruption, if the law does not stipulates otherwise (Article 2548 paragraph (1) Civil Code).

Fourthly, the statute of limitations in revocation starts from the moment when the donor found out effectively of the ungrateful deed committed by the donee, regardless of its cause. In the case when the ingratitude happens in repeated manifestations, the term for filing the complaint for revocation starts from the date when the donor found out of the last manifestation of the donee's ingratitude. If the donee's obligation is continuous (food provision), but it is not fulfilled continuously, the term of a year starts from the day following the cease of the donor's need to be provided with food. (34)

Fifthly, the effects of approval of the action of donation revocation are of two kinds: general effects (between parties) and special effects (against the thirds parties). As regards the general effects of approval of the action of donation revocation, the law (Article 1025 Civil Code) stipulates that the donee has to be pay in kind the donated thing. If the payment in kind is not possible anymore (as the good was alienated, distroyed etc.) the donee will have to pay the value of the received good, calculated at the moment of solving the case. We consider that the date of solving the case is when the decision becomes final.

Another effect of approval of the action of donation revocation for ingratitude is represented by the return of the fruits that the donee had appropriated since the day when the complaint for donation revocation was filed. Although the donee had become holder in bad faith since the day when the act of ingratitude was committed, the law-maker established that he has to return the fruits since the date when the complaint was filed, as since this moment the donor expressed his will of not forgiving the ungrateful donee. As regards the special effects of the revocation, those against the third parties, they happen only against the third parties who obtained gratuitously the good donated by the guilty donee.

3. Conclusions

This effect results, per a contrario, from the examination of the text of law dedicated to the special effects of revocation (Article 1026 Civil Code). According to this text, the approval of the action of donation revocation has no effect on the real goods obtained with good faith and onerously by the third parties, on the donated good and on the guarantees. These rights of the third parties are protected, if they were recorded in the publicity registers before the registration of the request of revocation. If the action of revocation for ingratitude aims at a real estate donation, it has to be written in the same register of estate publicity in which is recorded the donated estate, so that the acts of alienation or of rights constitution made by the donee after filing the complaint should not be opposable to the donor.35

Yet, if the donated good was alienated by the donee and the restitution is not possible anymore, the general above-mentioned effects of the revocation apply. In a future study, we will examine the case of donation revocation for non-fulfillment of a charge and we will support that de lege ferenda it should be reinacted in the present legislation the case of revocation in the situation of birth of children.

NOTES AND REFERENCES

(1.) See Ungureanu, O. (2005), Drept civil. Introducere (Civil Law. Introduction). 7th edition, Bucharest: Rosetti, 181; Boroi, G., Stanciulescu, L. (2012), Institutii de drept civil in reglementarea noului Cod civil (Institutions of Civil Law in the Regulation of the New Civil Code). Bucharest: Hamangiu, 413; Oprescu, M. M. (2010), Contractul de donatie (Donation Contract). Bucharest: Hamangiu, 5.

(2.) See Prescure, T. (2012), Curs de contracte civile (Course of Civil Contracts). Bucharest: Hamangiu, 216.

(3.) See Deak, Fr., L. Mihai, R. Popescu (2007), Tratat de drept civil. Contracte speciale (Treatise of Civil Law. Special Contracts). Vol. III. Bucharest: Universul Juridic, 247.

(4.) In the classical Roman law, revocation for ingratitude could be made only by the parents who made donations to their children. Later, revocation was extended, during the reign of Justinian, in the favour of all the donations. The right to revoke could have been exercised by the donor only towards the donee, during his life, being forbidden to be applied against the sucessors of the dead donee. The alienations and other real rights settled by the donor in the favour of the third parties were protected from any harm by donation revocation for ingratitude--see Alexandresco, D. (1913), Explicatiunea teoretica si practica a dreptului civil roman (Theoretical and Practical Explanation of the Romanian Civil Law). Tome IV, part I, Bucharest: Atelierele Grafice Socec, 435.

In the old Romanian law, the donation revocation for ingratitude was also regulated. Thus, Calimach Code showed that donation revocation happened when "the receiver" (donee) was guilty of "a big discontent" towards "the endower" (donor), also named "good doer." The laws during Caragea regime specified that the gift "will be asked back" when the receiver "will dishonour" the endower, or "will harm," or when "will do bad thinking against him" or when "will make unrighteous complaints," see M. M. Oprescu, op. cit., 236.

(5.) See Chirica, D. (1997), Dreptul civil.Contracte speciale (Civil Law. Special Contracts). Bucharest: Lumina Lex, 164.

(6.) It is famous the phrase stating that "In my infamy I bit the hand that fed me." The well-known folk saying "gratitude is a rare flower" is also present in the texts of the Bible, when the ten leprous people were cured and only one returned and praised God loudly. This made Jesus wonder: "Or not ten were cleaned? Where are the other nine?" (The Holy Gospel accoording to Luke, Chap.17 ("About offences, forgiveness andfaith. The healing of the ten men with leprosy. When the kingdom of God will come") pt.17. brenda

(7.) There are also other deeds representing causes for donation revocation for ingratitude, such as: killing at the victim's request (art. 190 C.pen) or causing or facilitating the suicide (art. 191 Penal Code).

(8.) For various reasons, such as: the donee's death, the prescription of the penal liability etc.

(9.) See Constantinovici, R. (2012), "Donatia (Donation)", Baias, Fl. A., Chelaru, E. Constantinovici, R. and Macovei, I. (coord.) Noul Cod civil. Comentariu pe articole (New Civil Code. Comments on Articles), Bucharest: C.H. Beck, 1067.

(10.) In the doctrine there are viewpoints considering that these penal deeds include those committed with guilty, see T. Prescure, op.cit., 217.

(11.) See art. 193-196 new Penal Code.

(12.) See art. 205-208 new Penal Code.

(13.) See art. 203-204 new Penal Code.

(14.) See art. 209, 210, 212-214, 216 new Penal Code.

(15.) See art. 218-219, 223 new Penal Code.

(16.) See art. 224-227, new Penal Code.

(17.) See Title II, special part in the new Penal Code.

(18.) See Oprescu, M. M. op.cit., 241.

(19.) For example, it is a case of physical cruelty when the donee obliges the donor to assist to brutalities committed against a person dear to him.

(20.) See R. Constantinovici, Donatia (Donation), in the collective work, coord. Fl.A. Baias, E. Chelaru, R. Constantinovici, I. Macovei, op. cit., 1067.

(21.) In the juridical practice and doctrine it was established that the following do not represent serious offences: the simple arguments between the parties on the background of the disagreements concerning the way of use of a piece of land (Decision no. 288 of 20 March 1998 of CA Iasi, Civil Section and Ungureanu, O. Balaci, Al. Turianu, C. Jugastru, C. (2002), Principii si institutii de drept civil (Principles and Institutions of Civil Law), Bucharest: Rosetti, 302), filing by the donee of a complaint against the donor, if the court action does not involve animus injurandi (Decision no. 1409 of 4 June 2002 of CA Bucharest, Ivth Civil Section, quoted by Stoica, L. C. (2009), Ineficacitatea actului juridic civil. Practica judiciara (Inefficacy of the Juridical Civil Action. Juridical Practice), Vol. II, Bucharest: Hamangiu, 208-209), the affair of a concubine with another person than the donor (Riondet, E. and Sedillot, H. (2003), Transmission du patrimoine, Paris: Delmas, 154), insults made by the donee to the donor's memory (Hamangiu, C. Rosetti-Balanescu, I. Baicoianu, Al. (1998), Tratat de drept civil roman (Treatise of Romanian Civil Law). Vol.III, Bucharest: All Beck, 497.

(22.) See Prescure, T. op. cit., 218.

(23.) See Constantinovici, R. Donatia (Donation), Baias, Fl. A., Chelaru, E., Constantinovici, R. Macovei, I. op.cit., 1067-1068.

(24.) "In considering the thing"--see Carjan, L. (2013), Dictionar de cultura juridica latina (Dictionary of Latin Juridical Culture), Bucharest: Universitara Publishing House, 157.

(25.) See Chirica, D. op.cit, 165.

(26.) See Decision no. 681/1995 of the Supreme Court, in Selection of decisions, 1955, p.81-82.

(27.) See Deak, Fr. Mihai, L. Popescu, R. op. cit., 250.

(28.) "Of Law and of Right," see Carjan, L. op. cit., 110.

(29.) See Deak, Fr. Mihai, L. Popescu, R. op. cit., 250.

(30.) See Oprescu, M. M. op. cit, 252.

(31.) See Mazeaud, Henri and Leon (1963), Lecons de droit civil. Vol.III, Paris, 1189, no. 1532 apud Deak, Fr. Mihai, L. Popescu, R. op. cit., 251, note 1.

(32.) See Alexandresco, D. op. cit., 458; Hamangiu, C. Rosetti-Balanescu, I. Baicoianu, Al. op. cit, Vol.III, 498; Deak, Fr. Mihai, L. Popescu, R. op. cit, 250; Dogaru, I. (coord.) (2005), Drept civil. Teoria generala a actelor cu titlu gratuit (Civil Law. General Theory of the Gratuitous Acts), Bucharest: All Beck, 282; Oprescu, M. M. op. cit., 269.

(33.) In comparison with the unequivocal legal regulation, we consider that the singular point of view expressed in the doctrine related to the legislation in force, according to which the term of a year would be a compliance period and not a statute of limitations, is a material mistake, see Boroi, G. and Stanciulescu, L. op.cit., 428.

(34.) See Mihai, L. and Kolisher, A. (1985), "Termenul revocarii donatiei pentru ingratitudine (The Term of Donation Revocation for Ingratitude)", Studii si Cercetari Juridice 3: 248-249.

(35.) See Chirica, D. op. cit., 166.

BUJOREL FLOREA

floreabuj orel@yahoo.com

Spiru Haret University, Bar Association Bucharest
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