Book 7 Particular agreements
Title 7.3 Donation agreement
Article 7:175 Definition of a 'donation agreement'
- 1. A donation agreement is an agreement on
a gratuitous basis, through which one of the parties ('the donor'), engages
himself to make a disposition out of his own property with the purpose
to enrich the other party to the agreement ('the donee)'.
- 2. An offer to make a donation, addressed to a specific person, is considered
to be accepted when the addressed person, after he has become aware of
the offer, has not rejected it immediately.
Article 7:176 Voidability on the ground of an abuse
If the donor introduces facts from which follows that the donation agreement
has been concluded under the influence of an abuse of circumstances and
he appeals on account thereof to its voidability, then the burden of proof
of the contrary lies with the donee, unless the donation has been written
down in a notarial deed or this allocation of burden of proof would in
the given circumstances be in conflict with the principle of reasonableness
Article 7:177 Donation to be performed after the death
of the donor
- 1. As far as a donation agreement necessarily implicates that it is
to be performed only after the death of the donor and it has not yet been
performed actually during his life, it ceases to exist upon the donor's
death, unless the donation agreement was concluded by the donor personally
and written down in a notarial deed. To the extent that the donation is
related to clothing, personal accessories or in advance pointed out personal
jewellery, furnishings or books, a private deed is sufficient as well,
provided that it is completely hand written, dated and signed by the donor
- 2. Where the donor has reserved for himself the right to revoke a donation
agreement as meant in paragraph 1, such a revocation may be effectuated
by means of a declaration of the donor addressed to the donee or by means
of a statement to this end in the last will of the donor without giving
notice of the revocation to the donee separately.
Article 7:178 Donation to a confidential counsellor
or care provider
- 1. A donation agreement is voidable if it is concluded during a sickness
of the donor and the donation is made either to a person who practices
his profession in the field of individual health care services and who
lends assistance to him or to a person who provides mental care assistance
and who supports him during his sickness.
- 2. A donation agreement is voidable as well if it is concluded during
the time that the donor remained in a nursing home for the elderly or
for mentally disturbed patients and the donation is made to the person
who owns or manages this institution or to someone who works there.
- 3. Article 4:62, paragraph 2 and 3, of the Civil Code applies accordingly.
- 4. The right to nullify a voidable donation
agreement pursuant to paragraph 1 or 2, becomes prescribed three years
after the sickness referred to in paragraph 1 has ended or, where it concerns
the situation referred to in paragraph 2, three years after the donor
was discharged from the nursing home.
- 5. After the donor has died, any person who
has suffered a disadvantage from the donation may nullify the voidable
donation agreement on the basis of paragraph 1 or paragraph 2. The voidable
donation shall in such event only be nullified insofar this is necessary
to undo the disadvantage suffered by the person who has nullified it.
A right of action (legal claim) to nullify a voidable donation on the
basis of the first sentence of this paragraph becomes prescribed at a
moment to be determined in accordance with Article 4:54 of the Civil Code,
but in any event three years after the sickness referred to in paragraph
1 has ended or, where it concerns the situation referred to in paragraph
2, three years after the donor was discharged from the nursing home.
Article 7:179 End of a revocable offer; offer for
- 1. Contrary to what is provided for in Article 6:222 of the Civil Code,
an offer to make a donation that could be revoked by the offeror at the
time of his death, shall cease to exist when he dies, unless an agreement
or the offer itself implies otherwise.
- 2. Where the offer is made for a specific period of time as a way of
offering a reward, it shall cease to exist when the offeror dies within
that period, provided that at the time of his death there was an important
reason for revoking the offer as meant in Article 6:220, paragraph 1,
of the Civil Code, or the death of the offeror produces in itself such
an imported reason; Article 6:220, paragraph 2, of the Civil Code shall
apply accordingly in such a situation.
Article 7:180 Donation subject to a condition subsequent
and a condition precedent
Articles 4:140, paragraph 1, and 4:141 of the Civil Code apply accordingly
to a donation subject to a condition subsequent, immediately followed
by an attached donation subject to a condition precedent.
Article 7:181 Necessary existence of the donee
- 1. An offer to make a donation that does not expire at the death of
the offeror, cannot be accepted by someone who does not yet exist at the
time of the offeror's death.
- 2. Paragraph 1 is not applicable:
a. if the donor has stipulated that what he
donates to a descendant of his father or mother, shall be donated, when
this descendant has died or at an earlier moment, to the then living descendants
of that descendant, each for equal parts;
b. if the donor has stipulated that what he
donates to someone, shall be donated, when thìs donee has died
or at an earlier moment, to a descendant of one of the donor's parents
and also that, if that descendant is not alive anymore at this moment,
the then living descendants of that descendant shall take his place, each
for equal parts;
c. if the donor has stipulated that what the
donee has left unconsumed at his death or at an earlier moment, will as
of that time fall to a then living blood relative of the donor in the
Article 7:182 Fiduciary administration of property
- 1. A written offer to make a donation may stipulate that the donated
assets shall be acquired subject to a fiduciary administration of property
by a legal administrator.
- 2. Such a fiduciary administration of property has the same legal effects
as a fiduciary administration of property instituted by a testator in
his last will, on the understanding that:
a. the periods meant in Articles 4:178, paragraph
1 and 2, 4:179, paragraph 2, and 4:180 paragraph 2, of the Civil Code
start to run from the moment that the donation is performed, and;
b. the fiduciary administration of property,
as far as it has not been instituted in the interest of another person
than the donee, also ends when the donor and the donee have notified the
legal administrator in writing of their mutual decision to terminate it.
Article 7:183 Liability for legal and factual defects
in the donated property
- 1. A donor is only liable for legal defects in a donated right or for
factual defects in donated asset if he has not removed these defects although
he was aware of their existence and the donee could not have discovered
them when the donated asset was supplied to him.
- 2. This liability does not enclose the damage that has been suffered
with respect to the donated asset itself, except in the event of fraud.
Article 7:184 Voidability of the donation agreement
- 1. Regardless whether the donation has been performed already, the donation
agreement is voidable:
a. if the donee is in default of complying
with an obligation imposed on him at the donation, for which no one, neither
the donor nor a third party, is able to claim performance [if the donor
or a third person is able to claim performance, he may rescind the donation
agreement on a breach of contract in the sense of Article 6:265];
b. if the donee deliberately commits a crime
against the donor or his nearest relations;
c. if the donee by law or agreement is obliged
to contribute in the costs of living of the donor and he is in default
of complying with this maintenance obligation.
- 2. By a 'crime' in paragraph 1, point (b),
is understood as well: the attempt to or preparation of a crime or the
participation in a crime.
Article 7:185 Nullification of a voidable donation
- 1. The right of action (legal claim) to nullify a voidable donation
agreement pursuant to Article 7:184 becomes prescribed on the expiry of
one year from the day on which the fact that produces a ground for this
nullification has come to the knowledge of the donor.
- 2. After the donor has died, a voidable donation agreement can only
be nullified on the basis of the previous paragraph by judicial decision
and, in the situations mentioned in Article 7:184, paragraph 1, point
(b) and (c), only if the fact that produced the ground for nullification
has caused the death of the donor.
Article 7:186 Corresponding applicability of Title
7.3 to other gifts; definition of 'gifts'
- 1. The provisions of this Title (Title 7.3) apply accordingly to other
gifts than donations, as far as the scope of these provisions do not oppose
to their applicability in view of the nature of the operation under which
the gift was made.
- 2. A gift is considered to be every operation through which the acting
person intends to make a disposition out of his own property to enrich
another person. Operations meant in the first sentence are not considered
to be a gift as long as this other person, whose enrichment is intended,
has not received the performance and neither can lay a claim to it.
Article 7:187 Gifts against a counter performance;
- 1. Where the donee in relation to the gift has to carry out a performance
in return, Article 7:186, paragraph 1, shall apply accordingly, except
as far as it concerns the application of Article 7:182; furthermore the
two following paragraphs will be applicable.
- 2. In the event meant in Article 7:177, paragraph 1, the gift does not
cease to exist, but it is voidable. A nullification of the voidable gift
has retroactive effect up until the moment of the death of the person
who has made the gift. The right of nullification of a voidable gift expires
if the donee in time promises to carry out an additional performance which
deprives the operation from its intention meant in Article 7:186, paragraph
2. Moreover, the court may, upon the request of an heir of the donee,
in stead of nullifying the operation, modify its effects.
- 3. If the gift is voidable on the ground of Article 7:178, then Article
3:54 of the Civil Code shall apply accordingly.
- 4. The previous paragraphs apply accordingly
to operations which partly have to be considered as a gift and partly
as the compliance with a natural obligation.
Article 7:188 Appointment as beneficiary of a non-indemnity
- 1. The appointment of a beneficiary of a capital sum insurance policy
is regarded as a gift as soon as it has been accepted or can be accepted
by the appointed beneficiary, unless this appointment is made in order
to comply with an obligation which is not derived from a donation agreement.
Articles 7:177, 7:179, 7:181, 7:182 en 7:187 do not apply to these gifts.
- 2. Where the appointment as beneficiary of a capital sum insurance policy
is considered to be a gift, its value equals the value of all rights and
payments resulting from the insurance. If the appointment as beneficiary
is only partly regarded as a gift, its value equals a proportional part
of the value of all rights and payments resulting from the insurance.
- 3. The amount which the insurer under law or an agreement with the policyholder
may withhold from the cash benefits payable to the beneficiary, shall
be deducted firstly from the value of the gift.