Wednesday 13 October 2010Promesa of donation. deed. Ad solemnitatem requirement. Failure
Buenos Aires, August 17 2010. / / -
seen and considered:
I. - come these cars to appeal to resolve the appeal filed by Mr. H. against the decision of fs. 58 / 9 which provided approved the settlement agreement of a couple obrante to fs. 31, signed by the parties in 2000, at the time of her divorce petition. The memorial looks to fs. 62 / 3 and has been responded to fs.
64/5.-
II .- In the history of cars emanating from that on 05/04/2000 the SEG and RFH spouses, for joint filing, applied for divorce based on the fact that they were separated in fact no willingness to join for more than three years (As permitted by art. 214 inc. 2 of the Civil Code)). On 4/5/2000 the judge issued the sentence level and homologated impetradas tenure arrangements and agreed views on demand. That decision became final and is duly registered with the Registry of Civil Status and Capacity of Persons (see fs record. 23 / 4, added on 9/22/2000) .-
Nine years later, brought back to the process Ms. G. and presented a settlement agreement of a couple who had joined Mr. H. dated 31/03/2000. Tax former spouse of such a document, it did not know the date and signature, so it has been formally recognized. However, opposed to its ratification, arguing that the factual context that the parties had in mind when signing the agreement had changed substantially .-
worth noting that the agreement of fs. 31 recognized that the spouses of the marital property was affected by a mortgage and pay the missing one hundred twenty (120) shares. They also pledged to repay the mortgage once, would give their children CD and NSH (today and adults), their share of the property. The ex-wife required the homolgación the agreement, which opposed her ex-husband claiming that he has had in nine years, two children of another union so that any sale or donation them to do their part Dower on the good car, as this is the only property he owns, would affect the legitimacy of their new offspring. He also mentioned that the farm is the current home of his new family, so that compliance with agreed care to jeopardize his wife's room and their two children .-
III .- The judge considered grade meeting the requirements of validity of the transaction and approved the agreement fs. 31. Observed that the lack of donation made by the spouses for their children does not entitle you to any of them, to unilaterally alter the will expressed and consolidated on the provision of property that formed a couple. He also determined that the effectuation of the donation to the children beneficiaries shall be performed in accordance with the provisions of art. 1810, 1st. subparagraph, Civil Code. Against that decision stands, Mr. H. -
IV .- As has been asked the question, to resolve the issue focuses on determining whether to approve a commitment of future donation made to the parties time to agree how to liquidate the conjugal partnership
.- V. - The art. 1810 Civil Code, after the reform of the law 17 711-stipulates that donations of real estate must be made before a notary public in the ordinary form of contracts, under penalty of nullity. It also adds that the said rule in these cases () governing the art. 1185 of the code that supports claim deeds of those donations made by private instrument. We see that the deed is a requirement by law as an ad solemnitatem, and only donations are exempted from the state, which can be credited with the records of administrative proceedings .-
17,711 law has thus come to settle a disputed issue that had arisen in the literature prior to the reform, both in the judiciary and in academia. Some even postulated that the formalities of the grant were not of the nature solemn (CCiv. 1st. Capital, 7/5/1926, JA 27, pg. 489; id. 9/10/1931, JA 36, pg. 1342; Segovia, t. I, note 50 at art. 1812 of numbers; Machado, t. 5, note to art. 1810, p. 61 et seq Anzorena Acuña, sources of obligations, t. III, No. 1598, note 76 and nature of the formal requirements on the donation, JA , v. 44-123, etc.), while others held the opposite approach (SCJ, 16/9/1919, JA, t. 3, p. 792, VCCI. 2nd. Capital, 11/5/1931, JA , v. 35, p. 950; Sup Court BA, 3/7/1951, LL 63, 799; ST San Luis, 5/6/1937, LL t. 7, pag. 106; Salvat, Contracts , t. 3, No. 1598; Llerena, T. 6, art. 1810, n ° 2, p. 43, No. 2, Lafaille, Contracts, t. 1, No. 279; Borda, Contracts, t. II, No. 1538 and following, among others) .-
With the current wording of art. 1810 has been decided the dispute in the sense that the donation of real property as a requirement for holding solemn deed, revenue, without which the act is not binding. By adding the reform of the penultimate paragraph, according to the caual "for the cases provided for in this Article shall not apply to art. 1185, putting an end to all discussion and removed all doubt .-
The author has argued that reform "With this solution the law aims to protect the donor, ensure the freedom of their feature to draw your attention to the act to be performed and avoid the damage that may be a hasty and generous impulse. Whether to finalize the donation is essential to appear before the notary to prepare the script and then sign it, it will take several days between the promise and the consummation of the act, days in which the donor can reflect on and repent of his liberality or reaffirm their purpose of carrying it out. It is reasonable that the law so special care domain such transmissions are not the result of a negotiation, or a change in values \u200b\u200band importing liquid assets amputation of the donor. Is not the same promise of a donation than a purchase or exchange, because in these cases, as in all commutative contracts, the law owes its equal protection to both parties, while the donation must protect mainly the author of it "(Borda William, the Treaty of Civil Law, Contracts, Volume II, seventh edition, Abeledo Perrot, 1997, pg. 292) .-
VI .- The promise of a donation does not require that the causes or their heirs different reasons. On the one hand, as already stated, the donation of property is a solemn contract of absolute solemnity, so that the instrument made in private is zero and shows no action to obtain the public deed otrogan (Under art. 1810 Civil Code), there is no possibility of a "ticket donation" like the bill of sale of real estate. On the other hand, when the donation was not accepted by the grantees, such as in-kind donor may revoke expressly or implicitly (as art. 1793 of the Civil Code), which is not simply a consequence of the principle of free will granted by Art. 1789, which means that a person can not be constrained by a commitment to make a donation or remain bound by a perpetual irrevocable offer or temporarily. It is worth mentioning here than can be revoked is the offer of donation, because while not bound by agreement no grant contract (conf Belluscio, Augusto C., Civil Code and complementary legislation, commented, annotated and agreed, Buenos Aires, Astrea, 2004, Volume 9, pg. 6, No 7 and coincidental rules. By the same author, see also Grant no deed "?, LL 2006-B, 278) .-
VII .- For the reasons given and beyond the extrinsic validity of the document fs. 31, recognized by the parties, this court finds that no conditions exist that allow minimum legal ratify it, so it will rise to the action proposed and revoke the decision appealed. That is so notwithstanding the feasibility of the parties occur on the road and appropriate way to realize the liquidation of the conjugal partnership
.- VIII .- Since both parties, his work reflected a fs. 31, have finalized the legal act which gave rise to the conflict that caused the incident, the costs of both instances must be supported in the order established (arts. 68 and 69 of the Code of Procedure) .-
For the reasons given and in accordance with the provisions of the arts. 1789, 1793, 1810 and coincidental rules. Civil Code, the court RESOLVED: Repeal resolution fs. 58 / 9 and, therefore, dismiss the request for judicial approval of the agreement as evidence of fs. 31. Costs of both instances in the order established. Sign up and be refunded. Notify in the instance of a degree (acc. art. 135 inc. 7 of the Procedure Code Signed ).//-
. Jorge A. Mayo, Liliana E. Abreut of Bagh, Claudio M. Kiper
(Hernán Pagés H. - Deputy Secretary
Posted by ARI at 10/13/2010 4:24:00 PM
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