Chapter 2

PERSON WHO MAY GIVE OR RECEIVE A DONATION

WHO MAY BE A DONOR?

 Art. 735. All persons who may contract and dispose of their property may make a
donation.

A. Donor must have Capacity to Act or enter into a contract:

1. Age of Majority,
2. Not under civil interdiction
3. Not incapacitated (of sound mind)

WHY IS THE CAPACITY TO CONTRACT & DISPOSE OF ONE’S PROPERTY REQUIRED OF THE
DONOR in Art. 735?
Because -
 Art. 734. The donation is perfected from the moment the donor knows of the
acceptance by the donee.
 Knowledge by the Donor of acceptance by donee is crucial.
 Thus, the donor must be alive and must have capacity at the time he learns of
the donee‘s acceptance, for the donation to be perfected. [COGNITION THEORY ]

 Relate this to - Art. 737.

WHEN IS THE DONOR´S CAPACITY DETERMINED?

 Art. 737. The donor´s capacity shall be determined as of the time of the making of the
donation.

1. What is the meaning of “MAKING”?

• MAKING - to be interpreted not to mean “giving”, but rather, “perfection” of the
donation, so as not to conflict with Art. 734 which states that: “The donation is
perfected from the moment the donor knows of the acceptance by the donee.”

Note: Castillo v. Castillo, 23 Phil. 364 – The donation is perfected not from the time of
acceptance, but from the time of knowledge of the donor that the donee has
accepted. If there is no acceptance, the donation will of course be null and void.

• Congress changed the original draft of the Civil Code, which used the word
“acceptance” to “making”, which now resulted into a “juridical absurdity”.

• To avoid this contradiction and absurdity, Civil authorities agreed that – the donor´s
capacity should be determined at the time donor knows of the acceptance by the
Donee.

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 • This interpretation will reconcile with related provisions of Art. 734, and that of Art.
1323 which states: “An offer becomes ineffective upon the death, civil interdiction,
insanity, or insolvency of either party before acceptance is conveyed.

WHO MAY NOT DONATE ?

 Art. 736. Guardians and trustees cannot donate the property entrusted to them.

1. May guardians and trustees donate property entrusted to them?

A. NO, as they are not the owners of the property; owner is the beneficiary of the trust.

EXCEPTION:
a) When the trustees have repudiated the trust and have acquired the properties
by prescription. In this case, having acquired ownership, they may now be able
to donate said properties. (Legura v. Levantino, 40 O.G 14 S., p. 136)

b) If the donation is made in the name of the ward or trust beneficiary, who
consented thereto, and upon permission of the court.

2. Can the court authorize guardians or trustees to donate properties entrusted to

them?

A. NO. Such authorization is generally void, for the making of a donation is a personal
act of liberality or generosity of the property owner.

EXCEPTION: In case the authority to donate granted to the trustee by the court, is
made to relieve the estate under trust, from the expenses and taxes attendant to the
maintenance of a street. This donation is made in the interest of the trust
beneficiaries. ( Araneta v. Perez, L- 18872, 15 July 1966).

WHO MAY BE A DONEE ?

 Art. 738. All those who are not specially disqualified by law therefor may accept
donations.

WHAT ARE THE LEGAL EFFECTS IF ART. 738 RULE IS VIOLATED?

 Art. 743. Donations made to incapacitated persons shall be VOID, though simulated
under the guise of another contract or through a person who is interposed.

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 1. Who are the “incapacitated persons” specially disqualified by law to accept
donations under Art. 743 ?

o Refers not to incapacitated persons like minors or those of unsound minds, but to
those persons mentioned in :
a. Art. 739 – moral &/or public policy reasons
b. Art. 740 [Arts. 1032, 1027] - unworthiness of the donee & undue influence or
interest

o LEGAL EFFECT: If Donee is one of those deemed incapacitated or disqualified by law

to accept donation - DONATION IS VOID (Art. 743)

WHO ARE THE PERSONS SPECIALLY DISQUALIFIED BY LAW TO ACCEPT DONATIONS :

I. DONEE DISQUALIFIED DUE TO MORAL OR PUBLIC POLICY REASON:

 Art. 739. The following donations shall be void.
1) Those made between persons who are guilty of adultery or concubinage at the
time of the donation;
xxx
• In Art. 739, (1), the action for DECLARATION OF NULLITY may be brought by the
spouses of the donor or donee;
• Conviction in criminal action is not necessary.
• Guilt may be proven by preponderance of evidence in the same civil action for the
Declaration of Nullity brought by the spouse of donor or donee.

Note: Liguez v. CA, L-11240, Dec. 18, 1957 – donation to a 15yr. old minor by a mature
married man is void due to illicit cause. But donor’s heirs cannot get back the
land as they cannot be in a better position than the donor, their predecessor
in interest who is a party to an illegal transaction, and who cannot get back
what has been given. The donor and donee are in pari delicto, thus, they will
be left as they are, before the action was filed by the heirs, subject to the
determination of the latters legitime which must not be prejudiced.

2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;

i. This is a form of a remuneratory or onerous donation with illegal cause, thus,

void even if given before or after the commission of the crime.

ii. Criminal conviction is required by law (“found guilty of criminal offense”)

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 3) Those made to a public officer or his wife, descendants and ascendants, by reason
of his office.

• Purpose – to prevent bribery; applies even on special occasion of b-day or Xmas.

• Public Officer – any employee of govt.
• Relative who is not the spouse, descendant or ascendant is excluded, unless
proven that the gift was for the public officer intended to be bribed.
• Applies only when public officer & relatives included are the donees; not when
they are the donor.

II. DONEE DISQUALIFIED DUE TO UNDUE INFLUENCE OR INTEREST OR UNWORTHINESS:

 Art. 740. Incapacity to succeed by will shall be applicable to donations inter

vivos.

Q. Who are incapable of succeeding or becoming donees on the grounds of incapacity

based on undue influence or interest, or due to unworthiness?

A. Persons incapacitated based on UNDUE INFLUENCE or INTEREST – Art. 1027

B. Persons incapacitated due to UNWORTHINESS - Art. 1032

o Capacity to succeed is the general rule; incapacity to succeed is the exception.

Thus, the rule re incapacity must be strictly construed.

A. DONEE DISQUALIFIED DUE TO UNDUE INFLUENCE or INTEREST

 Art. 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testator during his last illness, or the
minister of the gospel who extended spiritual aid to him during the same period;

o “During his last illness” – means that there is imminent danger of the illness of
donor being his last as far as the donor is concerned, at the time he made the
donation

(2) The 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;

o Disqualification of priest, minister extends to relatives within the 4 th degree to

prevent undue influence.

o But the Wife of the minister or pastor is not included from those disqualified,
thus, she is not disqualified.

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 (3) A guardian with respect to testamentary dispositions given by a ward in his favor
before the final accounts of the guardianship have been approved, even if the
testator should die after the approval thereof; nevertheless any provision made
by the ward in favor of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;

o For guardian to be disqualified as donee of ward, the donation of the ward

must have been executed before approval of the final accounts of
guardianship.
o But if the guardian-donee is an ascendant or descendant, brother, sister or
spouse of the donor, the disqualification does not apply.
xxx

(5) Any physician, surgeon, nurse, health officer or druggist who took care of the
testator during his last illness;

o Reason for disqualification of a doctor, nurse or druggist is similar to that of a

priest in Art. 1027 (1).
o But unlike the priest, the disqualification to become a donee does not extend
to the relatives of the doctors, nurse or druggist.

Q. How about if the doctor, nurse, druggist is also the spouse, or parent or child
of the donor, will Art. 1027 (5) disqualification still apply?

o Justice Jurado submits that - par. 5 does not apply, as it is human nature for a
spouse, parent or child to take care of the donor during his illness.
(p.486, Jurado, Comments & Jurisprudence on Succession, 2009, 9th ed.)

(6) Individuals, associations and corporations not permitted by law to inherit.

o Individuals, associations and corporations referred to are those absolutely and
not relatively incapacitated to succeed.
Example:
1. Donation to an Abortive infant
2. Donation of real property to alien religious org./corporation. (Reg. of Deeds v.
Ung Siu Si Temple, 51 OG, 2866)

B. DISQUALIFIED AS DONEE BY REASON OF UNWORTHINESS:

 Art. 1032. The following are incapable of succeeding by reason of unworthiness:

(1) Parents who have abandoned their children or induced their daughters to lead a
corrupt or immoral life, or attempted against their virtue.

(2) Any person who has been convicted of an attempt against the life of the testator,
his or her spouse, descendants, or ascendants;

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(3) Any person who has accused the testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation has been found groundless;

(4) Any heir of full age who, having knowledge of the violent death of the testator,
should fail to report it to an officer of the law within a month, unless the authorities
have already taken action; this prohibition shall not apply to cases wherein,
according to law, there is no obligation to make an accusation;

o The incapacity in par. (4) based on unworthiness, does not apply on cases
wherein according to law, there is no obligation to make an accusation;

o The requisite that there be a legal obligation to make an accusation, renders the
incapacity in this provision useless for practical application. In the Phils. there is no
obligation imposed by law to make an accusation in case a person [i.e. donee]
knows something about the violent death of another [i.e. donor]. (p. 492, Jurado,
Succession, 2009, 9th ed.)

(5) Any person convicted of adultery or concubinage with the spouse of the testator;
o In par. 5, it is only the person convicted of adultery or concubinage with the
spouse of the donor or testator who cannot inherit or be a donee.

o The spouse (who is equally guilty with this person) is NOT included in the
incapacity.
o Legally, the guilty spouse may still accept the donation or inheritance from the
donor spouse.

ILLUSTRATE:
• The husband H caught his wife W, committing adultery with his brother X in Nov. 2010.
• H sued his bro. X and wife W for adultery and the two were convicted.
• However, H is still in love with his wife W, so he forgave her and even gifted her with a
diamond ring worth P1M when they reconciled in 2012. A year after, in 2013 H died.
• The only child of H from his first marriage, Y, citing Art. 740 in relation to Art. 1032 (5), sued
to revoke and annul the P1M ring donation to W and the earlier donation to the bro. X by H
of a car worth P1.5M when X turned 28 yrs. old and passed the medical board exam in 2010.

Q. Will Y’s action for revocation/annulment of the donations of H to W & X, prosper?

1.) As to donee wife W: NO. Art. 1032, par. 5. does not include the spouse. Here,
the spouse W is not deemed legally unworthy to inherit or receive the donation, only
the person convicted of adultery with W.
o Exception – in case where the husband secured a decree of legal separation or
expressly disinherited the guilty spouse.
o The law generally favors to sustain the solidarity and sanctity of marriage.
o It is only the offended spouse who can decide to revoke the donation or not.

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 2.) As to donee bro. X: YES. If convicted with adultery with the wife of H, the bro. X
will be deemed as legally unworthy as donee under Art. 740, Art. 1032, par. 5
which states: “ (5) Any person convicted of adultery or concubinage with the spouse
of the testator”;
o The revocation and annulment of the donation as to X, will prosper.
o Ref: pp. 491-493, Jurado, Succession, 2009, 9th ed.

(6) Any person who by fraud, violence, intimidation, or undue influence should cause
the testator to make a will or to change one already made;

(7) Any person who by the same means prevents another from making a will, or from
revoking one already made, or who supplants, conceals, or alters the latter´s will;

(8) Any person who falsifies or forges a supposed will of the decedent.

o Plaintiff must prove the fraud, violence, intimidation, or undue influence in order
that the donee responsible will be incapacitated to succeed by reason of
unworthiness stated in Art. 1032 (6) “should cause the testator to make a will or
to change one already made”; (7) xxx “prevents another from making a will, or
from revoking one already made”.

o In pars. “(7) supplants, conceals, or alters the latter´s will; (8) falsifies or forges”
–
proof of fraud, etc. is not necessary as the act itself, demonstrates fraud by the
donee.

Q. WHAT IS THE LEGAL EFFECT IF DONOR CONDONE ACTS OF UNWORTHINESS BY

DONEE [ART. 1032] :

 Apply - Art. 1033. The causes of unworthiness shall be without effect if the testator
had knowledge thereof at the time he made the will, or if, having known of them
subsequently, he should condone them in writing.

• Acts of unworthiness in Art. 1032 are offenses directed against the donor. Thus,
only the Donor can erase the effects of such acts thru pardon, express or implied,
despite knowledge of the act of unworthiness the donee.

• Reconciliation between donor & donee is not enough. There must be acts of
PARDON by donor, express or, implied or tacit.
o Express Pardon – donor condones act of unworthiness by donee in writing
o Implied or Tacit Pardon – when donor despite knowing the act of
unworthiness by donee, makes a donation to the latter.

CAN MINORS BE DONEES ?

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 Art. 741. Minors and others who cannot enter into a contract may become donees but
acceptance shall be done through their parents or legal representatives.

Q. Is donation to a minor valid and can the latter become a donee ?

A. Yes. Donation to a minor is valid and minors can become donees.

Q. Who can accept the donation to a minor or incapacitated persons ?

A. As a general rule, under Art. 741, acceptance shall be done thru the parents or legal
representatives of the minors who are donees. However, it appears from
Supreme Court jurisprudence that:

i. If the donation is SIMPLE or PURE – a minor can accept, as this is for the benefit of
the child.
Exception: If written acceptance of the donation is required. Here, the parents
or legal representative must intervene or accept on behalf of the
minor. (Letuno v. Rodriguez, 56 Phil. 823)

ii. If the donation is ONEROUS or conditional – the parents or legal representatives

must intervene in the acceptance. Here an onerous condition or burden is imposed
on a minor, and guidance of the parents or guardian, legal rep. is required.

Q. Can a parent or legal representative accept an onerous donation in favor of a

minor if the value of the burden exceeds P5,000?

A. No, unless there is court approval. Without judicial permission, it is as if there

has been no acceptance, the donation is deemed void. (Di Sioc v. Sy Lioc, 43 Phil.
562)

MAY CONCEIVED AND UNBORN CHILDREN BECOME DONEES ?

 Art. 742. Donations made to conceived and unborn children may be accepted by those
persons who would legally represent them if they were already born.

1. May donations (simple or onerous) be made to conceived and unborn children?

o Yes. Such donations may be accepted by those persons who would legally
represent them if they were already born?

2. What if the onerous or conditional donation proves to be unfavorable to the child?

o It will be treated as if the conceived child possessed no juridical personality. Void.
(Art. 40)

3. What are the requisites for Article 742 to apply?

a.) If it had a normal intra-uterine life – that the child is born alive, or
b.) If it had an intra-uterine life of less than 7 months - that the child, after being
born alive, should live for at least, 24 hours.

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 o Otherwise, if the child never possessed juridical personality, the donation
becomes null and void, as there was no donee in this case.

SIMULATED DONATIONS TO INCAPACITATED PERSONS-DONEES; LEGAL EFFECT :

 Art. 743. Donations made to incapacitated persons shall be void, though simulated
under the guise of another contract or through a person who is interposed.

1. What is the effect of donations made to incapacitated persons?

o They shall be VOID, even if simulated under the guise of another contract, or made
through an intermediary.

2. What is meant by “incapacitated persons” under Art. 743?

o This term does not refer to minors or insane persons, but to persons who are
disqualified by law to accept donations under Art. 739.

ILLUSTRATE:

1. Mr. Eng is a defendant of a murder case in the sala of Judge Ayuno. Mr. Eng donated a
1,000 sq.m. piece of prime commercial land in the city (valued P10M), to Open Hands,
Inc., a non-stock, non-profit charitable corporation, fully owned and ran by Mike and Rio,
the children of Judge Ayuno. Is the donation valid?

Answer: NO. This is a void donation under Articles 739 and 743. This donation
circumvents the law against donations to incapacitated persons for moral and public
policy reasons.

2. Alan and Jane are guilty of adultery. During their illicit relations, Alan executed a
contract of sale of his 1-year old BMW car, in favor of the buyer, Jane. In truth
however, Jane did not pay any money to Alan for the car given to her, and which she
accepted.

a.) Is the sale of the car to Jane valid?

• NO. This is a simulated sale. This is a donation inter vivos to a disqualified person
under Art. 739 (1) and Art. 743.

b.) Would your answer be the same if the simulated sale of the car was made to Jack,
the bro. of Jane, and the latter gratuitously donated the same to Jane?

• YES. Jack was only interposed as alleged buyer in the simulated sale, which is in
truth a donation inter vivos to Jane, a disqualified person under Art. 739 (1) and
Art. 743.

c.) What civil action if any, can the legal wife of Alan file to recover the car from Jane?
o File of Declaration of Nullity [not annullment] of the simulated sale and
subsequent donation inter vivos.

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WHAT ARE THE RULES IN CASE OF DOUBLE DONATIONS ?
 Art. 744. Donations of the same thing to two or more different donees shall be
governed by the provisions concerning the sale of the same thing to two or more
different persons.

i. What are the Rules on Double Donations? [Refer to Art. 1544 Double Sale]:

A. If property donated is a MOVABLE or PERSONAL:

o Ownership is transferred to one who, in good faith, first took possession.

B. If property donated is an IMMOVABLE or REAL:

a. Ownership is transferred to one, who in good faith, first recorded the donation
in the Registry of Deeds.
b. If there is no registration, it shall belong to the donee, who in good faith, first
took possession.
c. In the absence of the two above, to the donee in good faith who presents the
oldest title.

Illustrate:
1.) Facts: A donated to B land who accepted but did not take possession. A few weeks
later, A donated the same to C who in good faith immediately took possession of the land,
without knowing that the same was donated earlier to B. About four years later, B
registered his title by donation to the land, despite knowing the donation to C. Donee-C
then filed an action to cancel the donation to B, and B’s registration of the title, and to
have him (C) declared as owner of the land. Will C’s action prosper?

Answer: Yes. The donee- C who in good faith first took possession of the land is deemed
the owner. B, even if he was the first donee, failed to take possession and registered only
4 years later his title in bad faith. (Cagaoan v. Cagaoan, 43 Phil. 554).

2.) Facts: A donated ½ of his land to B. Later, A also donated his entire land to C. The 2nd
donee-C knew of the previous donation of the half of the land to B. Still, C registered the
entire land donated to him in his name. B now files an action to have the land partitioned
so he can get his half share of the land earlier donated to him by A. But C now claims sole
ownership. Who wins?

Answer: B wins and must be given his half share of the land. C’s registration of the whole
land was in bad faith and gives him no additional right or title to the entire land, except
for the half share. (Fernandez v. Mercader, 43 Phil. 581)

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