DONATION 2.

Donative Intent (animus donandi) or intent to

make the donation out of liberality to benefit the
NATURE OF DONATIONS donee
Art. 725. Donation is an act of liberality whereby a 3. There must be Delivery, whether actual or
person disposes gratuitously of a thing or right in constructive
favor of another, who accepts it.
4. Donee must Accept or consent to the donation
Concept of donation
• In certain donations, the Form prescribed by law
• In its generic sense, the term donation includes all must be followed (See Art 748-749)
forms of gratuitous dispositions.
• The subject matter of a donation may be a thing
• The donation the article speaks of and which is or right.
governed by Title Three is the donation proper or
the true (or real) donation, or ordinary donation. • A person may be a DONEE although he is
incapacitated to enter into a contract if he is not
specially disqualified by law to accept donations.
What is the nature and effect of donation? • Not enough that the act is gratuitous, there must
• Although Art 725 defines donation as an act, it is be an intent to benefit the donee.
really a contract, with all the essential requisites of • The acceptance or consent of the donee is
a contract. required because no one can be obliged to receive
• It falls under contracts of pure beneficence, the a benefit against his will.
consideration being the mere liberality of the
benefactor.
Case doctrines •
• The Civil Code considers donation not among the
contracts that transfer ownership but as a particular The essential elements of donation are as
mode of acquiring and transmitting ownership. follows:
• As a mode of acquiring ownership, donation o Essential reduction of the patrimony of the donor
results in an effective transfer of title over the
property from the moment the donor is made o Increase in the patrimony of the donee
aware of the acceptance by the donee, provided o The intent to do an act of liberality or animus
that the donee is not disqualified or prohibited donandi (Heirs of Florencio v Heirs of de Leon)
by law from accepting the donation.
• Once accepted, it is generally considered
IRREVOCABLE, and the donee becomes owner of In order that the donation of an immovable property
property, EXCEPT: (OFI) may be valid, the deed of donation must be made
in a public document. The acceptance must be in a
1. on account of Officiousness; public document as well. (Heirs of Florencio)
2. Failure of the donee to comply with the charge • Registration of the deed in the Office of the RD or
imposed on the donation; in the Assessor’s Office is not necessary for it to
3. or Ingratitude. be considered valid and official. Registration does
not vest title. The necessity of registration comes
• The effect of donation is to reduce the patrimony into play only when the rights of third persons
or asset of the donor and to increase that of the are affected. Furthermore, the heirs are bound by
donee. Hence, the giving of a mortgage or any the deed of contracts executed by their
other security does not constitute a donation. predecessors-in-interest. (Heirs of Florencio)
• A quitclaim is not a donation where those who
executed the same merely acknowledged the
Requisites of donation (CIDA+F) ownership of and better right over the lot by other
1. Donor must have Capacity to make the donation persons. (Heirs of Reyes v Calumpang)
of a thing or right • Acceptance is necessary in a donation. This
applies to all kinds of donations because the law
does not make any distinction. A donation mortis  To reward PAST SERVICES
causa takes effect only after the death of the
donor, consequently it is only after the latter’s e.g.
death that its acceptance maybe made. (Vita v A donates a parcel of land to B, who had
Montanano) previously helped him review for the bar
• Prudent thing to do when drafting deeds of examinations
donation: Place an acceptance clause. So, if court Donation to one who saved the donor’s life
considers it inter vivos, then it would have been
accepted. If court considers it mortis causa, then Donation to the heirs of the deceased
the clause would be a mere superfluity, still open to manager who in life was greatly responsible
the acceptance of the donee upon the death of the for the corporation’s success.
donor.
Form of donation should be followed
The purpose of the formal requirement for REGARDLESS of the true value of the past
acceptance of a donation is to ensure that such services compared to the value of the donation.
acceptance is duly communicated to the donor.
The actual knowledge by the donor of the
c. MODAL or that which imposes upon the donee
construction and existence of the school building
a BURDEN (services to be performed in the
pursuant to the condition of the donation fulfills the
FUTURE) less than the value of the gift - 726 d.
legal requirement that the acceptance of the
donation by the donee be communicated to the  Purpose: to reward future services or because
donor. (Republic v Silim) of certain future charges or burdens, when the
value of said services, charges or burdens is
LESS THAN the VALUE of the donation.
 Partly ONEROUS, partly SIMPLE:
Art. 726. When a person gives to another a thing or
Insofar as it is onerous, follow the form of
right on account of the latter's MERITS or of the
contracts (SALE, EXCHAGE, BARTER)
SERVICES rendered by him to the donor, provided
they do not constitute a demandable debt, or Insofar as it is simple, follow the form of
when the gift imposes upon the donee a burden donations.
which is LESS THAN the value of the thing given,
there is also a donation.  AKA conditional donation or modal donation
or donation with a burden
What are the kinds of donation?
e.g.
1. As to taking effect:
A donates to B a parcel of land worth
a. INTER VIVOS or that which takes effect during 700K but B should give A a ring worth
the lifetime of the donor 150K or teach him certain things – value
of instruction being 90K
b. MORTIS CAUSA or that which takes effect
upon the death of the donor 150k – in the form of an agreement of
barter or sale
c. PROPTER NUPTIAS or that by reason of
marriage 550k – in the form of a DONATION
2. As to consideration d. ONEROUS or that the value of which is
considered the equivalent of the consideration
a. PURE or SIMPLE; or that the cause of which is for which it is given, or that made for a valuable
the pure liberality of the donor in consideration consideration, and is thus governed by the rules
of the donee’s merits – 725 on ObliCon
b. REMUNERATORY or COMPENSATORY; or  Burdens, Charges, or Future service = Value
that which is given out of gratitude on account of the thing donated
of the services rendered by the donee to the
donor, provided they do not constitute a  A donated land worth 2M to B but B has to give
demandable debt – 726 A a Ford Expedition Limited vehicle ring worth
also 2M
 Form: CONTRACT • Modal donations are conditional only in the
sense that a burden, charge, condition or limitation
 Governing law: rules on contracts is imposed by the donor but the burden is not
technically a condition in the sense of an
uncertain event upon which the effectivity or
3. As to effectivity or extinguishment extinguishment of donation is made to depend for it
is really a mere obligation imposed by the donor
a. Pure upon the donee as a consideration
b. Conditional • Actually, a modal donation has dual nature, it is
c. With a term partly onerous and partly simple – the portion
equivalent to the burden is onerous and is
governed by the rules on obligations and contracts,
while the portion exceeding the value of the
Remuneratory donations
burdens imposed, is simple and must follow the
• In this kind of donation, the motivating cause is form of donations.
gratitude, acknowledgment of a favor, a desire to Illustration:
repay for past services
Harry donates to Ron a parcel of land worth 300
• A donation given for future services cannot be galleons1
remuneratory
but Ron has to give another parcel of land or
• It is necessary that the past services do not perform some service worth 100 galleons.
constitute a demandable debt
- the transaction is onerous as the 100 galleons
o A debt is demandable when it can be legally which must be in the form of a contract of barter or
demanded or enforced by the donee against the exchange, and simple as to the 200 galleons which
donor who has thus an obligation to pay it. must follow the form of donations.
• But a debt that has been renounced is not a Case doctrines
demandable debt.
• An onerous donation is that which imposes upon
the donee a reciprocal obligation, or to be precise,
What about gratuities and pensions? this is the kind of donation made for a valuable
consideration, the cost of which is equal to or more
• While technically a gratuity is different from a than the thing donated. (CJ Yulo v Roman Catholic
donation, in substance, they are the same. Bishop of San Pablo)
• A gratuity is similar to a pension and is essentially • Since onerous donations are governed by the
remunerative donation. rules of contracts, the prescription period is 10
years (based on a written contract), and not the 4-
year period based on Article 764 (revocation must
Modal donations be brought within 4 years from the non-compliance
of the conditions of the donation). (De Luna v
• In a modal donation, a burden (which is Abrigo)
necessarily future) less than the value of the gift is
imposed upon the donee.
• If the burden is considered the equivalent of the
thing or right given, then it’s an onerous donation. Art. 727. Illegal or impossible conditions in
• The burden may consist in a real or personal SIMPLE and REMUNERATORY donations shall be
charge which is capable of being valued in terms of considered as not imposed.
money. What’s the effect of illegal or impossible conditions?
What are donations with mixed features? • Under Article 727, the illegal or impossible
• Remuneratory donations are those which are condition in a SIMPLE or REMUNERATORY
given on account of services rendered by the donation would be deemed not imposed following
donee to the donor.
the rule on testamentary dispositions. The donation Subject to Donor’s tax Subject to Estate tax
will be considered as simple.
• If the donation is onerous (or modal, as to its Designation given to donations not conclusive
onerous portion), the illegal or impossible condition
• Did the donor intend to transfer ownership of
shall render it void. Being contractual in nature, the
the property donated upon the execution of the
rule applicable would be that found in Article 1183
donation?
(if divisible, only condition will be void)
o If yes, then it is inter vivos.
Case doctrine
o If not, then, it is merely mortis causa.
• The prohibition in the deed of donation against the
alienation of the property for 100 years should be • “To take effect at the death of the creditor”
declared as an illegal or impossible condition does not automatically make it mortis causa. Such
within the contemplation of Article 727. statements must be construed with the rest of
Consequently, such condition shall be considered the instrument.
as not imposed. No reliance may accordingly be
placed on said prohibitory paragraph in the deed of
donation. (Archbishop of Manila v CA) Donations to be delivered after the donor’s
Art. 728. Donations which are to take effect upon death
the death of the donor partake of the nature of • A distinction must be made between the actual
testamentary provisions, and shall be governed by donation and the execution thereof.
the rules established in the Title on Succession.
 Actual Donation ≠ Execution
• That the donation is to have effect during the
lifetime of the donor does not mean that the
Art. 729. When the donor intends that the donation delivery of the property must be made during his
shall take effect during the lifetime of the donor, life.
though the property shall not be delivered till after • Article 729 speaks of donations in praesenti
the donor's death, this shall be a donation inter which take effect during the lifetime of the donor
vivos. The fruits of the property from the time of but the property shall be delivered after the
the acceptance of the donation, shall pertain to the donor’s death.
DONEE, unless the donor provides otherwise.
• Such are inter vivos although the subject matter is
INTER VIVOS MORTIS CAUSA
Takes effect during the Takes effect upon the death not delivered at once, or the delivery is to be made
lifetime of the donor, of the donor testator, so that post mortem, which is a simple matter of form and
independently of his death, nothing is conveyed to or does not change the nature of the act.
even if the actual execution acquired by the done until
may be deferred until said said death • The fruits shall belong to the donee from the time
death of acceptance unless otherwise provided by the
Made out of the donor’s Made in contemplation of donor.
pure generosity his death without the
intention to lose the thing or Why is it important to make a distinction
its free disposal in case of
survival between inter vivos and mortis causa?
Valid if donor survives the Void should the donor
donee survive the donee • The distinction between a transfer inter vivos and
Must follow formalities of Must follow formalities for mortis causa is important as the VALIDITY or
donations the validity of a will, REVOCATION of the donation depends upon its
otherwise void nature.
Accepted by the done Accepted only after the
during his lifetime donor’s death • If the donation is inter vivos, it must be
Cannot be revoked except Always revocable at any executed and accepted with the formalities
for grounds provided by law time and for any reason
(A. 760, 765) before the donor’s death prescribed by Articles 748 and 749, except when it
(revocable ad nutum – at the is onerous in which case the rules on contracts
discretion of the grantor) apply.
Right to dispose of the Right is retained by the
property is completely donor while he is still alive • If it is mortis causa, the donation must be in the
conveyed to the done form of a will, with all the formalities for the validity
of wills, otherwise it is void and cannot transfer 1. It conveys no title or ownership to the transferee
ownership. Moreover, mortis causa can be before the death of the transferor; or what amounts
revoked any time before the death of the donor. to the same thing, that the transferor should
(Ganuelas v Cawed) retain the ownership (full or naked) and control of
the property while alive;
What clauses are found in a deed of donation?
2. That before his death, the transfer should be
1. Habendum or warranty clause (wherein revocable by the transferor at will, ad nutum; but
grantor transfers ownership) revocability may be provided for indirectly by
2. Redendum or reservation clause (wherein means of a reserved power in the donor to
grantor reserves something new to himself) dispose of the properties conveyed; and

3. Acceptance clause 3. That the transfer should be void if the transferor

should survive the transferee (Maglasang v Heirs
Case doctrines of Corazon Cabatingan)
• It is a settled rule that the title given to a deed of • One of the decisive characteristics of a donation
donation is not the determinative factor which mortis causa is that the transfer should be
makes the donation inter vivos or mortis causa. considered void if the donor should survive the
donee (Maglasang)
In case of doubt, the conveyance should be
deemed donation inter vivos rather than mortis Donations mortis causa must be executed in
causa, in order to avoid uncertainty as to the accordance with the requisites on solemnities of
ownership of the property subject of the deed. wills and testaments under Articles 805 and 806 of
the Civil Code.
• Donations inter vivos are immediately operative,
even if the actual execution may be deferred until
the death of the donor. Mortis causa, nothing is
conveyed to the grantee and nothing is acquired by Art. 730. The fixing of an event or the imposition of
the latter, until the death of the grantor-testator, the a suspensive condition, which may take place
disposition being until then ambulatory and not beyond the natural expectation of life of the donor,
final. (Puig) does not destroy the nature of the act as a
donation inter vivos, unless a contrary intention
• Acceptance clause is a mark that the donation appears.
is inter vivos. Acceptance is a requirement for
donations inter vivos. Donations mortis causa are Donation inter vivos subject to suspensive
not required to be accepted by the donees during condition
the donors’ lifetime. (Gestopa v CA) • This article contemplates a situation where the
• A limitation on the right to sell during the donors’ donor intends the donation to take effect during his
lifetime implied that ownership had passed to the lifetime but he imposes suspensive condition which
donees and donation was already effective during may or may not take place beyond his lifetime.
the donors’ lifetime. (Gestopa) • The fact that the event happens or the condition is
o Reiterated in Alejandro v Geraldez: Condition that fulfilled after the donor’s death does not change the
donees cannot sell during donors’ lifetime to a third nature of the act as a donation inter vivos.
person the donated property implies immediate • The effect of the fulfillment of the suspensive
passage of ownership and, therefore donation is condition is retroactive to the making of the
inter-vivos. donation.
• The reservation of lifetime usufruct indicates • EXCEPTION: when the donor really intended that
that the donor intended to transfer the naked the donation should take effect after his death.
ownership over the properties, thus making it inter Thus, mortis causa.
vivos. (Gestopa)

Art. 731. When a person donates something,

Factors in determining whether a donation is subject to the resolutory condition of the donor's
one of mortis causa: survival, there is a donation inter-vivos.
Donation inter vivos subject to a resolutory the equitable value of the services received by the
condition donor.
• In these cases, the ownership of the donated • The remuneratory donations referred to in Article
property is immediately transferred to the donee 733 are the modal donations or those which impose
upon perfection of the donation once acceptance “upon the donee a burden which is less than the
by the donee is made known to the donor. value of the thing given” as regards that portion
which exceeds the value of the burden, it shall be
• A donation subject to a resolutory condition takes governed by the provisions on donations.
effect immediately but shall become inefficacious
upon the happening of the event which constitutes • There is no burden imposed on remuneratory
the condition. donations. If a burden is imposed, it becomes
onerous as regards the value of the burden.
• Even if the donation is subject to the resolutory
condition of the donor’s survival, the donation is still Case doctrines
inter vivos.
• As onerous donations are governed by the rules
o Ex. I will donate this land to you, but if I survive on contracts, for there to warrant a revocation of
World War III, I will get it back. If I survive World the donation, there must be a substantial breach of
War III, the donation is rescinded. If I don’t make it, the conditions in the deed. Mere casual breaches
then it continues in effect. will not warrant revocations. (CJ Yulo v RC Bishop)
• Considering that the donee’s acts did not detract
from the very purpose for which the donation was
Art. 732. Donations which are to take effect INTER made but precisely to achieve such purpose (of the
VIVOS shall be governed by the general donation), a lack of prior written consent of the
provisions on contracts and obligations in all donor (which was a condition of the donation)
that is not determined in this Title. would only constitute casual breach of the deed.
(CJ Yulo)

Art. 733. Donations with an ONEROUS cause shall

be governed by the rules on contracts and Art. 734. The donation is perfected from the
REMUNERATORY DONATIONS by the provisions moment the donor knows of the acceptance by the
of the present Title as regards that portion which donee.
exceeds the value of the burden imposed.
Perfection of donation
• There is no donation without acceptance by the
Rules governing onerous donations or onerous donee.
portions of donations
• Acceptance is indispensable because nobody is
• This article makes the rules of contracts directly obliged to receive a benefit against his will.
applicable to onerous donations and to
remuneratory donations as to the onerous portion • Its absence makes the donation null and void.
thereof
• The acceptance must be made during the lifetime
• Onerous donations are donations for a valuable of the donor and the donee.
consideration. They include those purely onerous
or those in which the consideration is considered • Perfection takes place, not from the time of
the equivalent of the property donated and the acceptance by the donee, but from the time it is
modal but only as regards that portion thereof made known, actual or constructively, to the donor.
considered the equivalent of the value of the • If the donation and acceptance are in the same
burden imposed. public instrument, signed by both and in the
• Remuneratory donations are true or simple presence of witnesses, the donation is deemed
donations because the consideration is really the already perfected inasmuch as knowledge of the
liberality of the donor since the services rendered acceptance is established by the instrument itself.
by the donee do not constitute a recoverable debt. • If acceptance was made in a separate instrument,
However, the special rules on revocation should not there must be proof that a formal notice of such
apply to the portion of the donation equivalent to acceptance was received by the donor, and in case
the donation involves immovable property, noted in who does not have the free disposal of the thing
both the deed of donation and the separate donated and to alienate it shall not be VALID*.
instrument embodying the acceptance. (See Art
749) PROBLEM: MINOR DONOR

What if there is revocation? Freddie Boy, a 12-year old boy, executed a deed
donating to his brother Aldy a one-hectare lot worth
• If the donor revokes the donation before learning P250,000 located in Magarao, Camarines Sur
of the acceptance by the donee, there is no which was also donated to Freddie Boy by his
donation. father a year ago. The donation is-
• But once it is perfected, it cannot be revoked ANS: Valid, although voidable because the donor is
without the consent of the donee, except: not capacitated to donate property.
1. Inofficiousness (Art 760) VERSUS - ***Catalan v Basa (2007) = voidable
(insanity as vice of consent) ***Espino v Vicente
2. Failure of the donee to comply with the charges (2006) = voidable (fraud as vice of consent)
imposed in the donation (Art 764)
• It is possible, however, for a person to have
3. Ingratitude (Art 765) CAPACITY TO CONTRACT but NOT the capacity
to dispose of property.

Is registration necessary? o Under the Family Code, every donation between

spouses during the marriage shall be void except
• As between the parties to the donation and their moderate gifts on the occasion of any family
assigns, it is not needed for its validity and efficacy. rejoicing.
(But it must be in a public document for
immovables!) • The prohibition applies also to persons living
together as husband and wife without a valid
• But for third parties to be bound, there must be marriage, or in illicit relations.
registration.
o Neither spouse may donate any community
Case doctrines property nor conjugal partnership property
without the consent of the other, except moderate
• The purpose of the formal requirement for
donations for charity or on occasion of family
acceptance of a donation is to ensure that such
rejoicing or family distress.
acceptance is duly communicated to the donor. The
actual knowledge by the donor of the construction Can corporations make donations?
and existence of the school building pursuant to the
condition of the donation fulfills the legal • Yes. But they CAN’T give donations to aid any
requirement that the acceptance of the donation by political party or candidate or for purposes of
the donee be communicated to the donor. partisan political activity. – Prior to amendment of
(Republic v Silim) Corporation Code of the Philippines in Feb 2019.
o Revised Corporation Code amendment:

PERSONS WHO MAY GIVE OR RECEIVE A Domestic corporations are no longer prohibited
DONATION from donating to political parties or candidates or
for purposes of partisan political activity. ONLY
Art. 735. All persons who may contract and dispose FOREIGN CORPORATIONS are now prohibited
of their property may make a donation. from doing so. (Sec. 36i of RA 11232)
Capacity of donor to contract and dispose of *Yes, corporations can make reasonable donations,
property (C = CxDp) including those for public welfare, hospital,
charitable, cultural, scientific, civil or similar
• The donor must have both the capacity to contract
purposes as part of their corporate powers under
and the capacity to dispose of his property in order
Sec. 36 of the Revised Corporation Code.
that he may make a donation.
Who are INCAPACITATED to donate?
Those who cannot give consent to a contract
CANNOT BE DONORS; and donation made by one 1. Minors
2. Insane or demented persons • Hence, the donation would be valid, although
the donor was insane at the time he signs the deed
3. Deaf-mutes who do not know how to write of donation or informs the donee of the donation
---- but SANE when he learns of the acceptance.
The donor may ask for annulment of the donation if
4. Foreign Corporations with regard to giving he so desires
donations to aid any political party
• The subsequent incapacity of the donor does
5. Guardians and trustees (with regard to property not affect the validity of the donation. This is similar
entrusted to them) -A736 to the rule in succession.
6. Spouses (to each other, except moderate gifts)
7. A spouse (to others without the consent of the
other spouse, except moderate donations)
Art. 738. All those who are not specially disqualified
by law therefor may accept donations.
Art. 736. Guardians and trustees cannot donate Capacity of the DONEE
the property entrusted to them.
• Generally, ALL PERSONS, whether natural or
Donation by a guardian or trustee of ward’s artificial, may be donees.
property
• A DONEE need not be sui juris, with complete
• Generally, guardians and trustees cannot be legal capacity to bind himself by contract.
donors of their ward’s properties for the simple
reason that they are not the owners of the same. • As long as he is “not specially disqualified by
law”, he may accept donations.
Exception: With respect to the trustee, donation is
permitted notwithstanding that the trustee receives • So, donations may be made to:
nothing in exchange directly, if the donation is 1. Incapacitated persons such as minors and
onerous and is beneficial to the beneficiary. others who cannot enter into a contract,
2. and to conceived and unborn children.
Art. 737. The donor's capacity shall be determined
as of the time of the making of the donation.
Capacity of donor at time of making the donation Art. 739. The following donations shall be void:
(Date of Donation Rule)
(1) Those made between persons who were guilty
• The donation is perfected from the moment the of adultery or concubinage at the time of the
donor knows of the acceptance by the donee. donation;
• However, this article seems to imply that the (2) Those made between persons found guilty of
donor’s capacity must exist at the time of making the same criminal offense, in consideration thereof;
the donation and NOT from the time of
knowledge by the donor of the acceptance, that (3) Those made to a public officer or his wife,
is, at the perfection of the act descendants and ascendants, by reason of his
office.
• A juridical absurdity arises in case the donor has
no capacity to act at the time the acceptance is In the case referred to in No. 1, the action for
conveyed to him. Since legally, the donor cannot be declaration of nullity may be brought by the spouse
said to have knowledge of the acceptance, there of the donor or donee; and the guilt of the donor
can be no perfection of the donation which and donee may be proved by preponderance of
presupposes a meeting of the minds between the evidence in the same action.
donor and the donee who are both capacitated. Donations void on moral grounds
• To avoid the apparent contradiction, the phrase • This article declares null and void ab initio the
“making of the donation” should be construed to donations referred to.
mean “perfection of the donation”.
What are the different void donations?
1. Between persons who were guilty of adultery o Since the purpose is praiseworthy, good for all
and concubinage at the time of the donation concerned, it should be considered valid. This is
particularly true when the woman (donee) was a
2. Between persons found guilty of the same victim of deceit by the man.
criminal offense, in consideration thereof
o However, where the illicit relation was voluntary,
3. Made to a public officer or his wife, and the donation was demanded by the woman as
descendants and ascendants, by reason of his a price of the termination of their relationship, the
office donation is void.
ADD: What if the concubine did not know that the
4. Between spouses during the marriage, man she lived with was actually married?
except moderate gifts which they may give o Then she is not guilty of concubinage and not
each other on the occasion of any family disqualified from the donation.
rejoicing (Art. 87, Family Code)
Donations between persons found guilty of the
5. Donations of community property by a spouse same criminal offense
without the consent of the other, except
moderate donations (Art 98, Family Code) • These rules presuppose prior criminal conviction
in a criminal action; hence proof of guilty by mere
6. Donations of conjugal partnership property by a preponderance of evidence is not sufficient.
spouse without the consent of the other,
except moderate donations (Art 125, Family • The donation here is remuneratory or onerous. It
Code) is void whether made before or after the
commission of the crime if it is in consideration
7. Donations to those provided for in Article 740, thereof.
in cross reference to Art 1027 and 1032.
• It is still void although the crime is not carried out
8. Donations accepted by agents without special because it is based on an unlawful cause.
authority to do so (A745)
Donations made to a pubic officer, by reason of his
9. Donations of immovables which do not conform office
to the form prescribed in Art 749
• Indirect bribery
The guilt need not be established by proof beyond
Donations between persons guilty of adultery reasonable doubt in a criminal proceeding for
and concubinage bribery.
• The civil action for declaration of nullity may • A civil action to declare the donation void may be
be brought after the persons involved have been maintained by the proper party in interest.
found guilty by final judgment in a criminal
proceeding of adultery or concubinage. • Donations made to persons other than those
mentioned are valid, unless, of course, they are
o In view of the last paragraph, conviction for intended for the public officer.
adultery or concubinage in a criminal action is not
essential. Art. 740. Incapacity to succeed by will shall be
applicable to donations inter vivos.
o The guilt of the donor and the donee may be
proved by a mere preponderance of evidence in a Incapacity to succeed by will
civil proceeding to nullify the donation, alleging the
adultery or concubinage as the cause of action for • This article expressly makes the provisions on
the declaration of nullity. incapacity to succeed by will applicable to
donations inter vivos
• The donation is void, whether made before or
after the illicit relations, if given in consideration • According to Art 1027, the following are incapable
thereof, either as inducement or compensation. of becoming donees:

• What if the donation is given in contemplation 1. The priest who heard the confession of the donor
of the termination of the relationship, is the during his last illness, or the minister of the gospel
donation still void? who extended spiritual aid to him during the same
period
2. The relatives of such priest or minister of the 7. Any person who by the same means prevents
gospel within the fourth degree, the church, order, another from making a will, or from revoking one
chapter, community, organization, or institution to already made, or who supplants, conceals, or alters
which such priest or minister may belong the latter's will;
3. A guardian with respect to donations given by a 8. Any person who falsifies or forges a supposed
ward in his favor before the final accounts of the will of the decedent.
guardianship have been approved, even if the
donor should die after the approval thereof; SUMMARY: Who are incapable of becoming
nevertheless, any provision made by the ward in donees? What is the effect of the violation/making
favor of the guardian when the latter is his them donees? 1. Those mentioned in Art. 739 (3)
ascendant, descendant, brother, sister, or spouse, - ? 2. Those mentioned in Art 1027 (5 –
shall be valid incapacitated to succeed by will) - ? 3. Those
mentioned in Art 1032 (8 - unworthiness) - ?x
4. Any physician, surgeon, nurse, health officer or
druggist who took care of the donor during his last Art. 741. Minors and others who cannot enter into a
illness contract may become DONEES but acceptance
shall be done through their parents or legal
5. Individuals, associations, and corporations not representatives.
permitted by law to inherit.
Donations to minors and others without capacity to
• According to Art 1032, there are certain people contact
who are deemed incapable to inherit by reason of
unworthiness. The donation made to a person who • Donation requires acceptance by the donee.
falls under any of its provisions is valid if the donor o the donee may not validly accept a donation
had knowledge of the act of unworthiness or having although it imposes no burden
known it subsequently, he should condone the
same in writing. Even in the absence of pardon, the • If the donee is a minor or without capacity to
donation is not subject to revocation because enter into a contract, the acceptance must be
donations may be revoked only for causes made by the parents or legal representative of the
mentioned in Articles 760, 764 and 765. So, who donee.
are these people?
• This is especially true if the donation is onerous
1. Parents who have abandoned their children or or imposes a charge or burden.
induced their daughters to lead a corrupt or
• In any case, when a formal or written acceptance
immoral life, or attempted against their virtue;
is required by the donor, such acceptance must
2. Any person who has been convicted of an be made by the parents or legal representative.
attempt against the life of the testator, his or her
Versus MAY MINORS ACCEPT BY
spouse, descendants, or ascendants;
THEMSELVES? IT DEPENDS.
3. Any person who has accused the testator of a
1. If the donation is SIMPLE—YES because after
crime for which the law prescribes imprisonment for
all is for the benefit of the child. The exception is
six years or more, if the accusation has been found
when a written acceptance is required. In this case,
groundless;
the parents or legal representative must
4. Any heir of full age who, having knowledge of the intervene.
violent death of the testator, should fail to report it
2. If the donation is ONEROUS or
to an officer of the law within a month, unless the
CONDITIONAL—NO. because there is some
authorities have already taken action; this
burden is imposed on the child. The parent and the
prohibition shall not apply to cases wherein,
legal representative must intervene.
according to law, there is no obligation to make an
accusation;
5. Any person convicted of adultery or concubinage Art. 742. Donations made to conceived and unborn
with the spouse of the testator; children may be accepted by those persons who
would legally represent them if they were already
6. Any person who by fraud, violence, intimidation,
born.
or undue influence should cause the testator to
make a will or to change one already made;
Can you donate to conceived and unborn Who must accept the donation?
children?
1. The donee personally, or
• Yes.
2. An authorized person or an agent, with a
• “A conceived and unborn child cannot accept a special power for the purpose, or with a general
donation because it is not yet a natural person.” and sufficient power
• The acceptance must be made by those persons If not?
who would legally represent them if they were
already born. • Then, the donation is void.
Does the parent of a minor need a special power
for the purpose of accepting a donation?
Probably not, a PARENT is NOT considered an
agent of a minor. They are considered legal
guardians.
REQUISITES FOR THE ARTICLE TO APPLY
Art. 746. Acceptance must be made during the
1. The child be born alive later lifetime of the donor and of the donee.
2. Or that the child after being born alive, should When should acceptance be made for inter
live for at least 24 hours vivos?
• A donation inter vivos takes effect during the
Art. 743. Donations made to incapacitated lifetime of the donor and the donee, and to take
persons shall be VOID, though simulated under effect, it must be accepted by the donee.
the guise of another contract or through a person • Hence, acceptance by the donee (or his
who is interposed. representative) must be made during his lifetime
Who are the incapacitated persons referred to and that of the donor.
here? • Even if the donation is made during their lifetime,
• They are those specially disqualified by law to but the donor dies before the acceptance is
become donees, such as those in Articles 739 and communicated to him, the donation is not
740. perfected.

Donations to such persons are void even if 2 “Art. 1544. If the same thing should have been
simulated under the guise of another contract or donated to different donees, the ownership shall be
through an intermediary. transferred to the person who may have first taken
possession thereof in good faith, if it should be
movable property. Should it be immovable property,
the ownership shall belong to the person acquiring
Art. 744. Donations of the same thing to two or
it who in good faith first recorded it in the Registry
more different donees shall be governed by the
of Property. Should there be no inscription, the
provisions concerning the sale of the same thing to
ownership shall pertain to the person who in good
two or more different persons.
faith was first in the possession; and, in the
Donations of the same thing to different donees absence thereof, to the person who presents the
oldest title, provided there is good faith.”
• This article expressly makes applicable by
analogy the rules on sales2 of the same thing to How about for mortis causa?
two or more different vendees.
• Donations mortis causa are accepted only after
the donor’s death because they partake of a will,
and are governed by the rules on succession.
Art. 745. The donee must accept the donation
PERSONALLY, or through an AUTHORIZED • If the acceptance was made before the donor’s
PERSON with a special power for the purpose, or death, the donation mortis causa although validly
with a general and sufficient power; otherwise, the executed, cannot be given force and effect. Such
donation shall be void. acceptance is void.
Art. 747. Persons who accept donations in • In every case, the acceptance of the donee must
representation of others who may not do so by be made known to the donor for perfection of a
themselves, shall be obliged to make the donation to take place.
notification and notation of which Article 749
speaks. Art. 749. In order that the donation of an immovable
may be valid, it must be made in a public
When does this article apply? document, specifying therein the property
donated and the value of the charges which the
1. When acceptance is made through the parents, donee must satisfy.
legal representative, or authorized agent of the
donee; The acceptance may be made in the same deed of
donation or in a separate public document, but it
2. The property donated is immovable, and shall not take effect unless it is done during the
3. The acceptance is not made in the same deed of lifetime of the donor.
donation but in a separate public instrument. If the acceptance is made in a separate instrument,
• The requirement of notification of the donor and the donor shall be notified thereof in an authentic
notation in both instruments that such notification form, and this step shall be noted in both
has been made is necessary for the validity and instruments.
perfection of the donation.
Art. 748. The donation of a movable may be made
orally or in writing.
Formalities for donation of immovables
An oral donation requires the simultaneous delivery
of the thing or of the document representing the • This article does not apply to ONEROUS
right donated. donations since they are governed by the laws of
obligations and contracts
If the value of the personal property donated
exceeds five thousand pesos, the donation and the • Donation of real property, which is a solemn
acceptance shall be made in writing, otherwise, contract, is void without the formalities stated in
the donation shall be void. Article 749
What are the rules for the formalities for So, what are the rules?
donations for movables?
• When donation and acceptance are in the same
• When the value of property exceeds P5,000 instrument, the requirements are:
(>5k), the donation and the acceptance must
always be made in writing; otherwise the donation 1. The donation must be in a public document or
is void, even if there is simultaneous delivery of the instrument; and
thing. 2. The instrument must specify the property
o The donation and the acceptance need not be donated and the charges, if any, which the
made in a public instrument, nor is it necessary that donee must satisfy.
the acceptance be made in the same deed of • When the donation and acceptance are in
donation. separate instruments, the requirements are:
• When the value of property is P5,000 or less, it 1. The donation must be in a public document or
may be made orally or in writing. (in any form) instrument;
o If made orally, there must be simultaneous 2. The instrument must specify the property
delivery of the thing or of the document donated and the charges, if any, which the
representing the right donated, otherwise, the donee must satisfy
donation is void. There must be acceptance which
may be oral or written. The receipt of the delivery 3. The acceptance by the donee must be in a
by the donee constitutes implied acceptance. public document
If made in writing, the donation is valid although 4. It must be done during the lifetime of the donor
there is no simultaneous delivery. Again, there
must be acceptance which may also be made orally
or in writing.
5. The donor must be notified in authentic form of prove that the document was lost or destroyed.
the acceptance of the donation in a separate (DECS v Del Rosario)
instrument; and
• Where the deed of donation fails to show the
6. The fact that such notification has been made acceptance, or where the formal notice of the
must be noted in both instruments. acceptance, made in a separate instrument is not
given to the donor or else not noted in the deed of
o But see the Rep v Silim case wherein the donation and in the separate acceptance, the
notification was not noted in the instrument, but still, donation is null and void. (Sumipat v Banga)
the SC ruled that the donation was valid.
The donation of real property in a private
instrument is null and void, and the DONEE may
not compel the donor to execute a public
instrument (1357) which applies only when the
contract or donation is valid and enforceable. The
donation cannot be ratified.
• Registration is not necessary for the donation to
be considered valid and effective.
• From the time the public instrument of donation is
simultaneously executed and acknowledged by the
donor and the donee, the latter acquires the
ownership of the donated property, since the
execution of a public instrument of conveyance is
one of the recognized ways in which tradition of
immovable property may be made, unless the
contrary is expressed or inferable from the terms of
the deed.
• Title to immovable property does not pass from
the donor to the donee by virtue of donation until
and unless it has been accepted in public
instrument and the donor duly notified thereof.
• Where the donation is on its face absolute and
unconditional, it is error to imply that the
possession or usufruct is excluded from the
donation or the donation is subject to any charge or
burden. The absence in the deed of any reservation
in favor of the donor is proof that no such
reservation was ever intended considering that
under the law, a donation of immovable by public
instrument is required to specify “the value of the
charges” that the donee must assume.
Case doctrines
• The best or primary evidence of a donation of real
property is an authentic copy of the deed of
donation with all the formalities required by A749.
When a party wants to prove the contents of a
documents, the best evidence is the original writing
itself.
• Prior to the introduction of secondary evidence, a
party must establish the existence and due
execution of the instrument, after which he must