donation without notarial law Court: Court of Appeals in Civil, Room I (CNCiv) (Salai)
Date: 07/07/2005
Parties: O., DC c. SF, JI
FULL TEXT:
2 ª Instance. - Buenos Aires, July 7, 2005.
Whereas: I. These actions rise to the Court pursuant to appeals filed on fs. 125 for the guardian ad litem and fs. 148 row. advocate for children. Were awarded to fs. 126, fs. 149, founded in the fs. 136 / 8 and 152/156 respectively, and the transfer is said to fs. 146.
the sake of a better understanding of the dispute it must provide a brief overview of its history.
A fs. 1 of these proceedings the DCO and JISF spouses, under an agreement in a divorce hearing, stated that "... the only thing that is part of the community property ... they decide to award grant to SN and TG minor children to mother reserved the usufruct for life ... For this purpose the parties agree to submit scripts and documentation necessary for its realization ...".
A fs. 78 the mother of the children accepted the donation, an act made by Ms. defender below fs. 80 and by the guardian ad litem to fs. 89/90.
A fs. Asked Mr. SF 86 revocation of the donation.
The ruling held that there was no appeal donations which may try to overturn because the art. 1810 Coll. Civil provides that where it is to the transmission of property that contract must be by deed, under pain of nullity. Then the rule states that for donations does not apply to art. 1185, which allows to consider the contract as an agreement in which the parties have forced the deed.
II. It must first be established whether, despite the clear letter of art. 1810 of Ref. background can be accepted, because of the specifics of the case-one solution that gives validity binding Property donation made to fs. 1 without deed.
From a purely exegetical, reasoning logically with the structure of a syllogism where the major premise is the norm mented, could not but conclude the invalidity of the donation without due solemnity by the encoder.
Nevertheless, this dimensional view of the matter about which projects can be overcome interpretation, expanding into other directions.
And is that the rules should be interpreted investigating its true scope, through a review of its terms that provide for the rationality of the provision, not in isolation or align verbatim with the rest of the specific arrangement, that is, making this the whole object of a reasonable and unobtrusive hermeneutics (CS, May 10/92 "Garcia Morales, Ofelia c. Cavassa, Carlos and others.")
From this perspective it is important to highlight that the spirit behind the rule, as expressed by one of its editors, is to safeguard the donor of an untimely event and ensure that the scope of the donation has been properly weighed. As if to specify 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 in which the donor may repent or reaffirm their purpose (acc. Borda, Guillermo A., "Contracts", v. 2, No. 1539, pg. 292).
In this case, the statement made to the judge who was involved in a divorce in which they discussed various issues of great importance for spouses, recklessly discarded by the donor. On the other hand, his will to that effect was maintained for at least seven years and only then tried to rebut it by presenting fs. 86. Therefore, from this angle the purposes of the rule are preserved.
factual dimension provides another flank from which the interpreter must approach its task in constant alternation between the standard and the case (Villey, Michel, "Method, sources and legal language, Ghersi, pg. 80). And is that the case has special features that add weight elements that determine its solution. Thus, it is to be noted that the award of property was made by parents to their minor children and were those, in any case, as legal representatives, entitled to require or propose the implementation in the manner provided by law or seek the appointment of a guardian to serve the interests of their children possibly in conflict with theirs.
this omission can not harm the interests of the children the benefit of those who had just duty to meet that decline.
This truck also angle weighting, since an interpretation of the donor protection is opposed to another that includes the interests of children, which in the case, despite the contract in question, are the weak business Legal. You can not disregard that the award of good was done in the same time that food is agreed and possession of children which suggests that it was their interest that came into play and gravitated in that audience.
These considerations lead to the conclusion that it is appropriate to attribute binding commitment to grant the audience realizes that the minutes fs. 1.
This brings us to another question, which is whether the donation was refined with acceptance.
regard and indeed factors that were reviewed, it imposes an affirmative answer.
Acceptance is an act supplementary and can not disregard that the beneficiaries are incapable and donors for their legal representatives, who also are people forced to take the steps leading business and for that acceptance occurs usefully (c OLN . GCG and other s / damages, Room G, L No 173,372 of 25/04/1996). In this case, the lack of effective actions for the acceptance is attributable to materialize a person seeking to rely on their behalf with the revocation founded precisely in this lack of acceptance is an abuse, diverted from the purposes for which the law had in order to regulate the point (art. 1071, Ref. civil).
Moreover, the fate of the topic is sealed when we consider that the mother of the children accepted the donation before it was revoked. And given that this is a free gift or consideration by the beneficiaries, not the requirements are applied to the art. 264 quater of the Code. Civil actions provide for the disposal, which should be interpreted as one that is presumed to have the consent of another holder of parental authority in the context of art. 264 of the Code. Civil (conf room C, "Gentile, Hector M." of 12.23.1985, JA, 1986-IV-158).
Therefore, the donation to fs. 1 should be understood accepted by the beneficiaries.
however, admitted the validity of the donation and the subsequent acceptance that perfects it, remains to examine the merits of the revocation to try Mr. SF on the ground that "the grantee has become in default as to the implementation of the burden. "
regard it is possible to note that the grant recipients were children and not put any load on her head. From this perspective hold no claim to charge the defendant failure of the latter, since it was not on them about who was to weigh the load. But there is another circumstance that would not admit failure. And is that the obligation to "... deliver deeds and other documents" necessary to realize the gift-giving both hung over the event, which one can not establish a right to breach of an obligation which also weighed on him and without even attempting to justify their lack or credit that was due to the attitude of the other party.
This act is at odds with previous conduct free and effective, it can be concluded that the hearing provided in fs. 1 for the awarding of grant to minors is the only legally relevant will. It imposes the cardinal principle of good faith that must prevail even more so if it is a parent-child relationship.
III. The costs should be imposed in the order established as the specifics of the case and rules that govern it might lead the defendant to believe with the right to petition as it did.
the foregoing and in accordance with the opinion of Mrs. defender under the Court resolved: 1 Revoke appealed the ruling, rejecting the request for revocation of donation made to fs. 86. 2 ° impose costs in the order established. Register, report to Ms. defender of children and devuélvanse. - Charles R. Ponce. - Delfina M. Borda. - Julio M. Ojea Quintana. Doctrine
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