The challenge of immovable property donations

Abstract

When one desires to challenge a donation of immovable property one is to understand the fundamental elements that constitute a donation as to be able to identify any inconstancies of law in the contract, upon which to set up such challenge. These elements that are needed for a donation contract to be upheld shall be interpreted from the Civil Code. A donation may also be challenged on grounds resulting from a lack of formalities in the contract as found in Chapter 55 Laws of Malta. A challenge resulting from grounds found in Chapter 55 are different from those found in Chapter 12, not only since the former deals with the formalities as opposed to the elements that are essential to the validity of a contract; but also since Chapter 55 provides remedies for a donation that may be null or annullable. The European Union has been striving to diminish cross-border restrictions, this has increased the popularity of free movement of persons. As a result, donations with a cross-border element are becoming more popular, as have cross-border successions. However as opposed to succession rules, EU legislation has failed to provide a harmonized approach towards rules pertaining to cross-border donations. This is since the nature of donations, whether it is a contractual or non-contractual, is still debatable amongst EU state-parties. This has resulted in uncertainty amongst interpreters of donation contracts as to which PIL rule is applicable to donations with an international element. The need of practical examples is essential in certifying if the Courts have effectively applied the law. This also provides an explanation of principles laid down by law. An array of practical examples, or attempts to challenge donations shall be provided in this thesis.