• Capacity of donor to enter into contracts is vital in deed of donation

    Persida Acosta

    Persida Acosta

    Dear PAO,
    What should be considered in executing a valid and binding deed of donation?

    Dear ML,
    In executing a deed of donation, one must consider first the capacity of the donor to enter into contracts. He must be capable of disposing the object of the donation and he must not be prohibited or disqualified by law from making such donation. The donee must likewise not be disqualified by law from accepting the donation (Article 738, Civil Code). For instance, incapacitated persons may not be recipients of donations. Donation made in their favor shall be void even if made under the guise of another contract or through a person who is interposed (Article 743, Civil Code).

    Our laws also state that those who are incapacitated to succeed by will may not accept donations. This includes: (1) priests who heard the confession of the donor during the latter’s last illness, or the minister of the gospel who extended spiritual aid to him during the same period;  (2) relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; (3) guardians, if made by their wards, before final accounts of the guardianship have been approved, unless the guardian is an ascendant, descendant, brother or sister; (4) attesting witness of the execution of the donation, if there is any, or the spouse, parents or children, or anyone claiming under such witness, spouse, parents or children; (5) physician, surgeon, nurse, health officer, or druggist who took care of the donor during his last illness; and (6) those made by individuals, associations, and corporations not permitted by law to make donations (Article 1027, Civil Code). Additionally, spouses and those living together as husband and wife without a valid marriage are prohibited from donating to each other during the marriage or during the time they are living together, except moderate gifting on the occasion of family rejoicing (Article 87, Family Code of the Philippines).

    Apart from the foregoing, the following are considered prohibited donations: (1)

    Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons who were guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office (Article 739, Civil Code).

    The object to be donated must not be outside the commerce of men and must be transmissible. If the property to be donated is a personal property, the parties may agree orally or in writing, provided that if the agreement is made orally, simultaneous delivery must be made. But if the value of the personal property exceeds five thousand pesos (P5,000), the donation and the acceptance thereof must be made in writing (Article 748, Civil Code). On the other hand, if what is to be donated is a real property, the same must be made in a public document, specifying the property to be donated and the value of the charges which the donee must satisfy (Article 749, Civil Code).

    The acceptance of the donee may be made in the same instrument or in a separate public document, but it shall not take effect, unless it is done during the lifetime of the donor. If the acceptance is made in a separate public document, the donor must be notified of such acceptance in an authentic form and the same must be noted in both instruments.

    We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net


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