Property Law simple reason that they are not the

owners of the property.

735 – All persons who has the capacity to
- This prohibition is not absolute. A
contract and dispose their property may make a
trustee may donate the property if it
donation
such trustee does not benefit from the
- Must have both capacity to contract donation and that the donation is
and dispose. This is because Donation beneficial and onerous to the
inter vivos is contractual in nature and a beneficiary.
mode to alienate and dispose property.
737 – The donor’s capacity shall be determined
- A person who donates without both
at the time of the making of the donation
capacities shall make the donation void.
- A co-owner who donates a part of the - Making of the donation must be
co-owned property by metes and construed to mean the perfection of
bounds is not allowed. Only when he the donation.
donates his share in the property. - A donor who was insane when he
signed the deed of donation but was
An example of a person who has the capacity to
sane when the acceptance by the
contract but not a capacity to dispose is a
donee was conveyed to him is valid, but
donation between spouses.
the donor may ask to annul the
- A spouse may only donate to the other donation if he so desires.
spouse a moderate gift on the occasion
738 – All those who are not specially
of family rejoicing.
disqualified by law may accept donations.
- Both spouses need the consent of the
other spouse in donating the - A donee, whether natural or juridical,
community property except when it is may accept donations as long as he is
for charity or a moderate gift on not specially disqualified by law. The
occasion of family rejoicing or family done does not need to have the legal
distress. capacity to contract therefore persons
who are incapacitated, such as minors,
A corporation organized under the Corporation
may receive donations.
Code has the power and capacity to make
- Art. 739 provides the persons who are
reasonable donations to public welfare. This
specially disqualified by law to receive
recognizes the public responsibility of these
donations.
corporations to aid in the betterment of the
- The Family Code also provides a
economic and social conditions of the
prohibition to donate between spouses
community.
except moderate gifts on the occasion
- No corporation is allowed to make of family rejoicing.
donations to a political party or
739 - The following donations shall be void.
campaign
Those made between persons who were guilty
736 – Guardians and trustees cannot donate
of adultery or concubinage at the time of the
the property entrusted to them
donation
- Guardians/trustees cannot donate the
property entrusted to them for the
Those made between persons found guilty of
the same criminal offense, made in
consideration thereof
Those made to a public officer, his wife,
ascendants and descendants, by reason of his
office
In the case referred to in No. 1 an action for
declaration of nullity may be asked by the
spouse of the donor or done, and the guilt of
the donor or donee may be proven by mere
preponderance of evidence.
- These donations are prohibited and
void ab initio because it is contrary to
morals and public policy.
- These prohibitions are also applicable
to testamentary provisions and life
insurances. Life insurances are no
different from civil donations because
both are founded on liberality.
Donations between persons guilty of adultery
and concubinage – A beneficiary in a life
insurance policy is no different from a donee.
Both are recipients of pure beneficence.
- The declaration of nullity may be
brought after the persons are already
found guilty of adultery or concubinage
by final judgment although the
conviction Is not essential. If the
persons are not yet convicted, a
preponderance of evidence may be
given for the action of declaration of
nullity to succeed.
- If the donation was given to terminate
the illicit relationship then it may be
valid since the consideration is
praiseworthy. This is true when the
donee was a victim of deceit by the
donor. But if the donee demanded the
donation from the donor then it will
void because it is contrary to morals.
- A person who does not know that the
other person is married is not guilty of
concubinage and therefore may receive
donations.
Donations between person found guilty of the
same criminal offense – There must be a
conviction. It applies to co principals and
principals and accomplices and accessories.
- It is void whether the donation was
made before or after the crime and it is
still void even if the crime was not
committed because it was done for an
unlawful cause.
Donations to public officers, his wife,
ascendants and descendants by reason of his
office – Indirect Bribery is committed.
740 – Incapacitated to succeed by will shall be
applicable to donations inter vivos.
Provisions on the incapacity to succeed are fund
on 1027 and 1032.
1027: the ff are incapacitated to suceed
1. The priest who heard the confession of the
donor during his last illness or the minister who
aid him spiritually during the same
2. The relatives of such priest within the 4 th
degree and the church or institution to which
such priest or minister belong.
3. Guardians with respect to the property of the
ward before the final accounts of the
guardianship have been approved
4. Any attesting witness to the execution of the
will – not applicable to donations inter vivos.
5. Any physician, surgeon, nurse or health
officer who took care of the donor during his
last illness.
6. Individuals associations or corporations not
permitted by law.
1032: Incapacity to inherit by unworthiness. The
donation shall be valid if the donor has
knowledge of the donee’s unworthiness but still
condones it in writing.
(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;
(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
(5) Any person convicted of adultery or
concubinage with the spouse of the testator
(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. (756, 673, 674a)
741 – Minors and others who are not capcitated
to contract may become donee’s but the
acceptance shall be made by their parents or
legal guardians.
- This provision is only applies when the
donor requires a written or formal
acceptance of the donation. If such
acceptance is not required, then the
minor or incapacitated person may
receive the donation himself.
742 – Donations made to unborn children shall
be accepted by those who will legally represent
them when they are born.
Considered born If:
- It is completely delivered from the
mother’s womb
- If the unborn child’s intra uterine life is
only 7 months or less, it shall be
considered born if it lives for 24 hours
after its delivery.
743 – Donations to incapacitated persons shall
be void, even under the guise of another
contract or made to a different person who is
interposed.
- Incapacitated persons = persons
specially disqualified by law
744 – Donation of the same thing made to two
or more persons shall be governed by the rules
on double sale
- Movable Property – Ownership shall be
given to the first person who takes
possession of the thing
- Immovable Property – The first person
to register it to the Registry of Property.
Should there be no inscription, the
ownership shall pertain to the person
who, in good faith, was first in the
possession; and, in the absence thereof,
to the person who presents the oldest
title, provided there is good faith.
745 – The donation must be personally
accepted by the donee or a person authorized
by him with a special power for the purpose, or
with the general or sufficient power, otherwise
the donation is void.
- A special power is also needed to
accept inheritance
- A special power is necessary because
the donee may not want to accept the
generosity of the donor or in case of an
 onerous contract, he may not be willing
to be burdened by such donation.

746 – The acceptance must be done during the

lifetime of the donor and the done.

- Even if the donation is made during the

lifetime of the donor or done, the
donation shall not be valid if the donor
dies before the acceptance has been
conveyed to him.
- Donation Mortis Causa is accepted
upon the death of the donor because it
is in the nature of wills and governed by
the rules of succession.

747 – Persons who accept donations on behalf

of persons who are not legally allowed to
accept shall make the following notifications
and notations under 749:

- Acceptance is made by the parents or

legal guardian
- The property is an immovable
- The acceptance is not made in the same
deed of donation but through a
separate public instrument
Effects of Donations and Limitations Thereof
750 – The donation may comprehend all the
present property of the donor or part thereof,
provided he reserves full ownership or usufruct
which is sufficient to support his relatives or
persons who depend upon the donor. If no
reservation is made, a petition can be made to
reduce the donation.
- Present property is composed of the
property which the donor may rightfully
dispose at the time of the perfection of
the donation.
- Share in inheritance is considered as
present property even though the
donor has not yet acquired the
possession of such.
- A donation without reservation is not
null and void, but only subject to
reduction by the court upon petition of
person entitled for support from the
donor.
- This limitation only applies to simple,
remuneratory, and modal donations
and not to onerous donations, For the
reason that in onerous donations, the
donor receives something in return.
- Donation propter nuptias or donations
made in consideration of marriage
cannot exceed 1/5 of the present
property of the future spouses if before
their marriage settlements, they agree
to upon a regime other than absolute
community property.
751 – Donations cannot comprehend future
property
Future property are properties in which the
donor does not have the right to dispose of.
- This prohibition is based on the
principle that a person cannot dispose
what he does not own
- Future inheritance cannpt be donated
but if the testator dies, the share in the
inheritance can be donated even if the
inheritance is not yet delivered.
- Property which depends on the
fulfillment of a suspensive condition
may still be donated because the
suspensive condition retroacts to the
time the donation was made.
752 – The provision of 750 notwithstanding, no
person may give or receive, by way or donation,
more than what he may give or receive by way
of will.
The donation shall be in officious in all that may
exceed its limitation.
- This provision applies when the donor
has forced or compulsory heirs. In order
not to affect the legitimes of the heirs.
- This donation is valid during the lifetime
of the donor. It shall only be inofficious
upon the death of the donor.
753 – When a donation is made to several
person jointly, it is understood to be in equal
shares and accretion shall not apply, unless the
donor provides the contrary
The preceding article shall not apply to
donations made to a husband and wife jointly.
Accretion shall apply unless otherwise provided.
- The donation shall be in equal shares
unless otherwise provided
- There is no right of accretion. For
example A refuses to accept donation, B
cannot receive the donation not
accepted by A unless the contrary is
provided by the donor
- The right of accretion applies to
donations made to husband and wife
jointly.
754 - The rights and actions pertaining to the
donor shall be subrogated to the donee. The
donor is not required to make a warranty on
the property donated unless it is a onerous
donation.

The donor shall be liable for eviction or hidden

defects if there is bad faith on his part.

755 – The right to dispose of the thing donated

or some amount thereof may be reserved by
the donor. If the donor does not make use of
this right before he dies then the right shall be
given to the done.

- The right to dispose shall be considered

mortis causa
- The donation itself is inter vivos

756 – A donation of a property may be made to

one person, but the usufruct be donated to
another person. Provided that all the donees
are still living.

-Donees must be living at the time of the

making of the donation

- If the property donated is immovable, the

formalities for donations of real property must
be complied with (Art. 749.) because the naked
ownership and usufruct over real property are
real properties themselves.

757 – The donor may provide for a reversion

clause for any cause or circumstance. Reversion
in favor of another person other than the donor
is only valid if such person is already living,
therefore, reversion in favor of an unconceived
child is null and void. In such a case, only the
revision would be disregarded but the whole
donation shall be valid.

758 -
Revocation and Reduction of Donation
760 – Every donation inter vivos made by a
person who has children or descendant,
legitimate or legitimated by a subsequent
marriage, or legitimate, may be revoked or
reduced, as long as any of the following events
happen:
- If the donor after the donation should
have children, legitimate, illegitimate
or legitimated, even though they be
posthumous(born after death of the
father)
- If the donor believes that his child has
died but it turns out that the child is
still living
- When the donor adopts a minor child
Two Kinds of Inofficious Donations
- A donation where the donor already
has a child
- A donation where the donor does not
have any children or thought he had
none
Example: X had no children and made a
donation of 1,000,000. After donation the
assets of X were reduced to 500,000. He then
adopts a child. His total assets is now at
1,500,000. Given that the legitime entitled to
the child is half the estate, which is 750,000, X
may reduce the donation by 250,000 to satisfy
the legitime of the adopted child.
- There is a presumption that had the
donor knew he would have or adopt a
child, he would have reduced or
revoked the donation because then his
own child should be the subject of his
own generosity.
In Art. 760, the determination on whether the
donation was inofficious shall be done upon the
birth or reappearance or adoption of the child.
Art. 760 it is essential that the donor had no
child and that the recognition afterwards is not
important.
- At the time of the donation a child is
already conceived but not yet born.
Which article should apply. Art 760 if
the donor had no knowledge of the
conception but if he had knowledge
then Art. 771 should apply.
Art. 760 does not apply to grandchildren, but
Art. 771 may be applied if the legitime of the
grandchild will be impaired. In this case, the
determination on whether the donation was
inofficious shall be done upon the death of the
donor.
Adoption must be with a judicial approval. The
adopted child must be a minor but if the
adopted child was of major age then Art. 771
may still apply. There must still be an action to
revoke the donation because art. 760(3) is not
self-executing.
Art. 760 does not apply to:
- Onerous donations
- Mortis Causa
- Donations Propter Nuptias
Art. 761 – In the cases referred to in the
preceding article, the donation shall be
reduced or revoke insofar as it exceeds the
portion that may be freely disposed of by a
will, Taking into account the whole estate of
the donor at the time of the birth, adoption, or
appearance of the child.
The value of the estate is the value at the time
of birth, adoption or reappearance PLUS the
value of the property donated at the time the
donation was made.
Suppose a donation was part of the free portion
during the time of BAR but it cannot be a part of
the free portion upon the death of the donor.
May the donation still be revoked or reduced?
 - Some authors believe that the donation
may still be revoked or reduced
because of the presence of Art. 771 but
it is still believed that the donation may
not be reduced or revoked because it
will render the prescriptive period in
Art. 763 nugatory.
Art. 760 seeks to protect presumptive or
expected legitime while Art. 771 seeks to
protect actual legitimes
Art. 762 – Upon the revocation or reduction of
the donation by the BAR of the child, the
property shall be returned, or if sold its value.
If the property is mortgage, the donor may
redeem the mortgage by paying the amount
guaranteed, with a right to recover the same
from the done
When the property cannot be returned, its
value shall be estimated during the making of
the donation.
- If the property is still with the donee,
return the property
- If property is sold, return the value
- If mortgage, pay the amount
guaranteed, but donor can be
reimbursed by the done
- If it cannot be returned, it shall be
estimated at the time the donation was
made. (Donee shall bear the loss
because he was considered the owner)
Art. 763 – Art. 760 shall prescribe after 4 years
from the BAR of the child. This action cannot
be renounced and shall be transmitted to the
heirs of the donor upon his death.
- In case of legitimation, the prescriptive
period shall be counted from the
legitimation or recognition of both
parents of the child.
- If the reason or cause disappears, such
as the child dies, the donation shall
remain valid.
Art. 764 – The donation shall be revoked at the
instance of the donor when the donee fails to
comply with any of the conditions imposed by
the former.
In case the donation is to returned, the
alienations made by the done and the
mortgages imposed thereon shall be void, with
limitations established, with regard to third
persons, by the Mortgage Law and Land
Registration Laws
Prescription 4 years from non-compliance
transmissible to heirs
- There must be a court action.
- All conditions must be complied with
- Period when conditions must be
applied. The period given if no period
the courts must fix a reasonable period.
- Donee’s heirs includes donee’s assigns
- If there is no court action, then donor
surrenders his property
- This action is waivable.
Art. 765 – The donation may also be revoked
at the instance of the donor, by reason of
ingratitude in the following cases:
- If the donee should commit some
offense against the person, honor, or
the property of the donor, or his wife,
or children under his parental
authority
- If the donee imputes to the donor any
criminal offense, or any act involving
moral turpitude (an act or behavior
that gravely violates the sentiment or
accepted standard of the community)
even though he should prove it, unless
the act was committed against the
donee, wife or children
 - If he unduly refuses him support when
the donee is legally or morally bound
to give support to the donor.
Paragraph 1
- Criminal conviction is not required. Only
a mere preponderance of evidence
- “Under parental authority”
Paragraph 2
- Donee imputed to the donor any
criminal offense or act of moral
turpitude.
- Exception when the offense imputed
was done to the donee or wife or
children under parental authority
Paragraph 3
- Legally or morally bound
- Refusal must be unjustified
- Support must not exceed the value of
the thing donated
- Donor calls upon the donee for support
even though he has other relatives.
Donation Propter nuptias may be revoked by
ingratitude
Art. 766 – Although the donation has already
been revoked by reason of ingratitude, the
alienation and mortgages effected before such
revocation shall still subsist
Later ones shall be void
- If sale was made then only the value of
the property may be returned
- If sale was made after the annotation of
the complaint for revocation, donor
may recover the property.
- If buyer is in bad faith, property should
be returned to donor.
Art. 767 – In case of the preceding article, the
donor can recover the value of the donation
made at the time of the donation from the
done if the property can no longer be
returned.
If the done is insolvent and the third person is
innocent, the donor shall have the same rights
as that of a creditor.
If property was loss or damaged, the done shall
be liable for damages because he should bear
the loss or deterioration of such property
Art. 768 – Donee shall not return the fruits
prior to the filing of the complaint if it was
revoked by reason of Art. 760, or by
ingratitude, or when it is reduced because it
was inofficious.
If the revocation was because of non-
compliance, the done shall also return the
fruits of the property he may receive after
failure to comply with the condition.
- Fruits of money shall be the legal rate
of interest unless otherwise provided.
Art. 769 – The action to revoke the donation by
reason of ingratitude cannot be renounced in
advance, and this action prescribes 1 year from
the time the donor had knowledge of the
ingratitude.
Art. 770 – This action is also not transmissible
to the heirs of the donor. The action will only
prosper if before the death of the donor, he
had already instituted the action, such action
can therefore be continued by his heirs.
- Heirs of the done are not original
defendants
Art. 771 – Donations which are inofficious
because of art 752 shall take into account the
estimated estate of the donor at the time of
his death. The donation shall be reduced with
regard to the excess, but this reduction shall
not make the donation void. The done shall
also appropriate the fruits
-
Art. 772. Only those who at the time of the
donor's death have a right to the legitime and
their heirs and successors in interest may ask
for the reduction or inofficious donations.

Those referred to in the preceding paragraph

cannot renounce their right during the
lifetime of the donor, either by express
declaration, or by consenting to the
donation.

The donees, devisees and legatees, who are

not entitled to the legitime and the creditors
of the deceased can neither ask for the
reduction nor avail themselves thereof. (655a)

Art. 773. If, there being two or more

donations, the disposable portion is not
sufficient to cover all of them, those of the
more recent date shall be suppressed or
reduced with regard to the excess. (656)