The nature and effects of the contract of donation.

Abstract

This thesis focuses on the nature and effects of the contract of donation and departs by examining donations in the wider context of acts of liberality and gratuitous acts. After defining donations, a distinction is made between donations inter vivas and the now outdated donations mortis causa. The in-depth study into the nature of donations is commenced by examining the essential characteristics of any donation, that is, their contractual nature, their gratuity, irrevocability and immediacy. The various types of donations possible are also briefly examined. This first chapter is concluded by discussing the position of the articles of law regulating donations in the Civil Code. The second chapter traces the history of donations from Roman Law to modern times. A study is made into the nature of donations under Roman law starting from the period preceding the /ex Cinicia to the reforms made to donations by Justinian. The changes made to donations during the Middle Ages are also considered. The final part of the chapter deals with the history of donations under Maltese law and includes the amendments made to the Civil Code by Act XVI 11 of 2004. The third chapter focuses on the essential requisites necessary for the validity of any contract. It departs by analysing the internal requisites of capacity, consent, object and causa. Such requisites are not considered in general but a specific approach to the implications of each requisite to the contract of donation is taken. These are however not the only requisites which are necessary for the validity of any contract of donation: they have to be accompanied by animus donandi on the part of the donor, and the donee's estate must increase due to the donation. After discussing the above notions, the effects of the contract of donation are considered. This fourth chapter takes an in depth analysis into the obligations which such a contract gives rise to both on the part of the donor and also on the part of the donee. One of the essential characteristics of any contract of donation is that the donor cannot revoke it after the contract is published. This fifth chapter considers the implications of such irrevocability and also examines the effect, which this irrevocable nature of donations has on those conditions, which can be included in the contract of donation. Finally, after establishing the nature of such irrevocability, those exceptional circumstances in which a donation can be revoked by the donor are considered. The final part discloses the author's own views and suggestions on some of the aspects outlined in this thesis.