Chapter 2

PERSON WHO MAY GIVE OR RECEIVE A DONATION

WHO MAY BE A DONOR:
Art. 735. All persons who may contract and dispose of their property
may make a donation.
A. Donor must have Capacity to Act or enter into a contract:
1. Age of Majority,
2. Not under civil interdiction
3. Not incapacitated (of sound mind)
CAPACITY TO CONTRACT & DISPOSE OF ONES PROPERTY REQUIRED OF
THE DONOR in Art. 735:
WHY?
Art. 734. The donation is perfected from the moment the donor
knows of the acceptance by the donee.
Knowledge by the Donor of acceptance by donee is crucial.
Thus, the donor must be alive and must have capacity at the time he
learns of
the donees acceptance, for the donation to be perfected. [COGNITION
THEORY ]
o Relate to
Art. 737. The donors capacity shall be determined as of the
time of the making of the donation.

WHEN IS THE DONORS CAPACITY DETERMINED:

Art. 737. The donors capacity shall be determined as of the time of
the making of the donation.
1. What is the meaning of MAKING?
MAKING - to be interpreted not to mean giving, but rather,
perfection of the donation, so as not to conflict with Art. 734 which
states that: The donation is perfected from the moment the donor knows
of the acceptance by the donee.
Note: Castillo v. Castillo, 23 Phil. 364 The donation is perfected not from
the time of acceptance, but from the time of knowledge of the donor that
the donee has accepted. If there is no acceptance, the donation will of
course be null and void.

Congress changed the original draft of the Civil Code, which used the word
acceptance to making, which now resulted into a juridical absurdity.

To avoid this contradiction and absurdity, Civil authorities agreed that

the donors capacity should be determined at the time donor knows of the
acceptance by the Donee.

This interpretation will reconcile with related provisions of Art. 734, and
that of Art. 1323 which states: An offer becomes ineffective upon the
death, civil interdiction, insanity, or insolvency of either party before
acceptance is conveyed.

WHO MAY NOT DONATE :

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 Art. 736. Guardians and trustees cannot donate the property

entrusted to them.
1. May guardians and trustees donate property entrusted to them?
A. NO, as they are not the owners of the property; owner is the beneficiary of
the trust.
EXCEPTION:
a) When the trustees have repudiated the trust and have acquired the
properties by prescription. In this case, having acquired ownership,
they may now be able to
donate said properties. (Legura v. Levantino, 40 O.G 14 S., p. 136)
b) If the donation is made in the name of the ward or trust beneficiary,
who consented
thereto, and upon permission of the court.
2.

Can the court authorize guardians or trustees to donate

properties entrusted to them?

A. NO. Such authorization is generally void, for the making of a donation is a

personal act of liberality or generosity of the property owner.
EXCEPTION: In case the authority to donate granted to the trustee by the
court, is made to relieve the estate under trust, from the expenses and
taxes attendant to the maintenance of a street. This donation is made
in the interest of the trust beneficiaries. ( Araneta v. Perez,
L18872, 15 July 1966).

WHO MAY BE A DONEE :

Art. 738. All those who are not specially disqualified by law therefor
may accept donations.
Legal Effect If Violated:

Art. 743. Donations made to incapacitated persons shall be void,

though simulated under the guise of another contract or through a
person who is interposed.
1. Who are persons specially disqualified by law to accept
donations?
o

Refers not to incapacitated persons like minors or those of unsound minds,

but to those persons mentioned in :
Art. 739 moral &/or public policy reasons
Art. 740 [Arts. 1032, 1027] - unworthiness of the donee

LEGAL EFFECT: If Donee is one of those deemed incapacitated or

disqualified by law to accept donation - DONATION IS VOID (Art. 743)

a.
b.

PERSONS SPECIALLY DISQUALIFIED BY LAW TO ACCEPT DONATIONS :

I.

DONEE DISQUALIFIED DUE TO MORAL OR PUBLIC POLICY REASON:

Art. 739. The following donations shall be void.
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1) Those made between persons who are guilty of adultery or

concubinage at the time of the donation;
xxx
In Art. 739, (1), the action for DECLARATION OF NULLITY may be brought
by the spouses of the donor or donee;
Conviction in criminal action is not necessary.
Guilt may be proven by preponderance of evidence in the same civil action
for the Declaration of Nullity brought by the spouse of donor or donee.

Liguez v. CA, L-11240, Dec. 18, 1957 donation to a 15yr. old minor by a
mature married man is void due to illicit cause . But donors heirs cant get
back the land as the donor who is a party to an illegal transaction cannot
get back what has been given.

2) Those made between persons found guilty of the same criminal

offense, in consideration thereof;
i.

This is a form of a remuneratory or onerous donation with illegal

cause, thus, void even if given before or after the commission of the
crime.

ii.

Criminal conviction is required by law (found guilty of criminal

offense)

3) Those made to a public officer or his wife, descendants and

ascendants, by reason of his office.
Purpose to prevent bribery; applies even on special occasion of b-day or
Xmas.
Public Officer any employee of govt.
Relative who is not the spouse, descendant or ascendant is excluded,
unless proven that the gift was for the public officer intended to be
bribed.
Applies only when public officer & relatives included are the donees; not
when they are the donor.
II. DONEE DISQUALIFIED DUE TO UNDUE INFLUENCE OR INTEREST OR
UNWORTHINESS:
Art. 740. Incapacity to succeed by will shall be applicable to
donations inter vivos.
Q. Who are incapable of succeeding or becoming doneeson the
grounds of incapacity based on undue influence or interest, or
due to unworthiness?
A. Persons incapacitated based on UNDUE INFLUENCE or INTEREST
Art. 1027
B. Persons incapacitated due to UNWORTHINESS - Art. 1032

Capacity to succeed is the general rule; incapacity to succeed is

the exception.
Thus, the rule re incapacity must be strictly construed.

A. DONEE DISQUALIFIED DUE TO UNDUE INFLUENCE or INTEREST

Art. 1027. The following are incapable of succeeding:
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(1)

The priest who heard the confession of the testator during his
last illness, or the minister of the gospel who extended spiritual
aid to him during the same period;
During his last illness means that there is imminent danger of the
illness of donor being his last as far as the donor is concerned, at the
time he made the donation

(2)

The relatives of such priest or minister of the gospel within the

fourth degree, the church, order, chapter, community,
organization, or institution to which such priest or minister may
belong;
o

Disqualification of priest, minister extends to relatives within the 4 th

degree to prevent undue influence.

But the Wife of the minister or pastor is not included from those
disqualified, thus, she is not disqualified.

(3)

A guardian with respect to testamentary dispositions given

by a ward in his favor before the final accounts of the
guardianship have been approved, even if the testator should
die after the approval thereof; nevertheless any provision
made by the ward in favor of the guardian when the latter is
his ascendant, descendant, brother, sister, or spouse, shall be
valid;
For guardian to be disqualified as donee of ward, the donation of the
ward must have been executed before approval of the final accounts
of guardianship.
But if the guardian-donee is an ascendant or descendant, brother,
sister or spouse of the donor, the disqualification does not apply.

o
xxx
(5)

Any physician, surgeon, nurse, health officer or druggist who

took care of the testator during his last illness;
o
o

Reason for disqualification of a doctor, nurse or druggist is similar to

that of a priest in Art.
1027 (1).
But unlike the priest, the disqualification to become a donee does
not extend to the relatives of the doctors, nurse or druggist.

Q. How about if the doctor, nurse, druggist is also the spouse,

or parent or child of the donor, will Art. 1027 (5)
disqualification still apply?
o

Answer: Justice Jurado submits that - par. 5 does not apply, as it is

human nature
for a spouse, parent or child to take care of the donor during his
illness.
(p.486, Jurado, Comments & Jurisprudence on Succession, 2009, 9th ed.)

(6)

Individuals, associations and corporations not permitted by

law to inherit.
o Individuals, associations and corporations referred to are those
absolutely and not relatively incapacitated to succeed.
Example:
1. Donation to an Abortive infant
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2. Donation of real property to alien religious org./corporation. (Reg. of

Deeds v. Ung Siu Si Temple, 51 OG, 2866)

B.

DISQUALIFIED AS DONEE BY REASON OF UNWORTHINESS:

Art. 1032. The following are incapable of succeeding by reason

of unworthiness:

(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;
o

The incapacity in par. (4) based on unworthiness, does not apply on

cases wherein according to law, there is no obligation to make an
accusation;
The requisite that there be a legal obligation to make an accusation,
renders the incapacity in this provision useless for practical application.
In the Phils. there is no obligation imposed by law to make an
accusation in case a person [i.e. donee] knows something about the
violent death of another [i.e. donor]. (p. 492, Jurado, Succession, 2009, 9th
ed.)

(5) Any person convicted of adultery or concubinage with the

spouse of the testator;
o
o
o

In par. 5, it is only the person convicted of adultery or concubinage with

the spouse of the donor or testator who cannot inherit or be a donee.
The spouse (who is equally guilty with this person) is NOT included in
the incapacity.
Legally, the guilty spouse may still accept the donation or inheritance
from the donor spouse.
ILLUSTRATE:

The husband H caught his wife W, committing adultery with his bro. X in Nov.
2010. H sued his bro. X and wife W for adultery and the two were convicted.
However, H is still in love with his wife W, so he forgave her and even gifted her
with a diamond ring worth P1M when they reconciled in 2012. A year after, in
2013 H died.
The only child of H from his first marriage, Y sued to revoke and annul the P1M
ring donation to W and the earlier donation to X by H of a SUV worth P1.5M when
X turned 25 and passed the bar exam - May 2010.

Q. Will Ys action for revocation/annulment of the donations of H to

W & X, prosper?

1.) As to donee wife W: NO. Art. 1032, par. 5. does not include the spouse.
Here, the spouse W is not deemed unworthy to inherit or receive the donation,
only the person convicted of adultery with W.
o Exception in case where the husband secured a decree of legal separation or
expressly disinherited the guilty spouse.
o The law generally favors to sustain the solidarity and sanctity of marriage.
o It is only the offended spouse who can decide to revoke the donation or not.
2.)

As to donee bro. X: YES. If convicted with adultery with the wife of H, the
bro. X will be deemed as unworthy as donee under Art. 740, Art. 1032, par. 5
which states: (5) Any person convicted of adultery or concubinage with

the spouse of the testator;

The revocation and annulment of the donation as to X, will prosper.
Ref: pp. 491-493, Jurado, Succession, 2009, 9th ed.

o
o

(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 latters will;
(8) Any person who falsifies or forges a supposed will of the
decedent.
o

Plaintiff must prove the fraud, violence, intimidation, or undue influence

in order
that the donee responsible will be incapacitated to succeed by reason of
unworthiness stated in Art. 1032 (6) should cause the testator to make
a will or
to change one already made; (7) xxx prevents another from making
a will, or
from revoking one already made.

In pars. (7) supplants, conceals, or alters the latters will; (8) falsifies
or forges
proof of fraud, etc. is not necessary as the act itself, demonstrates fraud
by the donee.

LEGAL EFFECT IF DONOR CONDONE ACTS OF UNWORTHINESS [ART.

1032] BY DONEE :
Art. 1033. The causes of unworthiness shall be without effect if
the testator had knowledge thereof at the time he made the will,
or if, having known of them subsequently, he should condone
them in writing.
Acts of unworthiness in Art. 1032 are offenses directed against the donor.
Thus, only the Donor can erase the effects of such acts thru pardon,
express or implied, despite knowledge of the act of unworthiness the
donee.
Reconciliation between donor & donee is not enough. There must be acts
of PARDON by donor, express or, implied or tacit.
o Express Pardon donor condones act of unworthiness by donee in
writing
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o Implied or Tacit Pardon when donor despite knowing the act of

unworthiness by donee, makes a donation to the latter.
MAY MINORS BE DONEES :
Art. 741. Minors and others who cannot enter into a contract may
become donees but acceptance shall be done through their parents
or legal representatives.
Q. Is donation to a minor valid and can the latter become a donee ?
A. Yes. Donation to a minor is valid and minors can become donees.
Q. Who can accept the donation to a minor or incapacitated persons
?
A. As a general rule, under Art. 741, acceptance shall be done thru the
parents or legal representatives of the minors who are donees.
However, it appears from Supreme Court jurisprudence that:
i. If the donation is SIMPLE or PURE a minor can accept, as this is for the
benefit of the child.
Exception: If written acceptance of the donation is required. Here, the
parents or legal representative must intervene or accept on
behalf of the minor.
ii. If the donation is ONEROUS or conditional the parents or legal
representatives must intervene in the acceptance. Here an onerous
condition or burden is imposed on a minor,
and guidance of the parents or guardian, legal rep. is required.
o
In Kapunan v. Casilan, L-8178, Oct. 31, 1960, the Supreme Court ruled
that - acceptance by the minors legal representative is required only in onerous
or conditional donations and NOT in Simple or Pure Donations.
Q.

Can a parent or legal representative accept an onerous

donation in favor of a minor if the value of the burden exceeds
P5,000?

A. No, unless there is court approval. Without judicial permission, it is as

if there has been no acceptance, the donation is deemed void. (Di Sioc
v. Sy Lioc, 43 Phil. 562)
MAY CONCEIVED AND UNBORN CHILDREN BE DONEES :
Art. 742. Donations made to conceived and unborn children may be
accepted by those persons who would legally represent them if
they were already born.
1.

May donations (simple or onerous) be made to conceived and

unborn children?
o Yes. Such donations may be accepted by those persons who would
legally represent them if they were already born?

2. What if the onerous or conditional donation proves to be

unfavorable to the child?
o It will be treated as if the conceived child possessed no juridical
personality. Void. (Art. 40)
1. What are the requisites for Article 742 to apply?
a.) If it had a normal intra-uterine life that the child is born alive, or
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b.) If it had an intra-uterine life of less than 7 months - that the child,
after being born alive, should live for at least, 24 hours.
o

Otherwise, if the child never possessed juridical personality, the

donation becomes null and void, as there was no donee in this case.

SIMULATED DONATIONS TO INCAPACITATED PERSONS-DONEES;

EFFECT :

Art. 743. Donations made to incapacitated persons shall be void,

though simulated under the guise of another contract or through a
person who is interposed.
1. What is the effect of donations made to incapacitated persons?
o They shall be VOID, even if simulated under the guise of another
contract, or made through an intermediary.
2. What is meant by incapacitated persons under Art. 743?
o This term does not refer to minors or insane persons, but to persons
who are disqualified by law to accept donations under Art. 739.
ILLUSTRATE:
1. Mr. Ang is a defendant of a murder case in the sala of Judge Ayuno. Mr.
Ang donated a 1,000 sq.m. piece of prime commercial land in the city (valued
P10M), to Open Hands, Inc., a non-stock, non-profit charitable corporation,
fully owned and ran by Mike and Glory, the children of Judge Ayuno. Is the
donation valid?
Answer: NO. This is a void donation under Articles 739 and 743. This
donation circumvents the law against donations to incapacitated persons
for moral and public policy reasons.
2. Alan and Jane are found guilty of adultery. During their illicit relations, Alan
executed a contract of sale of his 1-year old BMW car, in favor of the
buyer, Jane. In truth however, Jane did not pay any money to Alan for the
car given to her, and which she accepted.
a.) Is the sale of the car to Jane valid?
No. This is a simulated sale. This is in reality, a donation inter vivos to a
disqualified person under Art. 739 (1) and Art. 743.
b.) Would your answer be the same if the car is sold to Jack, the bro. of Jane,
and who later donated the same to her?
Yes. Jack was only interposed as alleged buyer in the simulated sale,
which is in truth a donation inter vivos to Jane, a disqualified person
under Art. 739 (1) and Art. 743.
c.) What civil action if any, can the legal wife of Alan file to recover the car
from Jane?
o Declaration of Nullity [not annullment] is the proper action to be filed.

RULES ON DOUBLE DONATIONS :

Art. 744. Donations of the same thing to two or more different
donees shall be governed by the provisions concerning the sale of
the same thing to two or more different persons.

1.

What are the Rules on Double Donations? [Refer to Art. 1544

Double Sale]:

A. If property donated is a MOVABLE or PERSONAL:

Ownership is transferred to one who, in good faith, first took
possession.
B. If property donated is an IMMOVABLE or REAL:
a. Ownership is transferred to one, who in good faith, first recorded the
donation
in the Registry of Deeds.
b. If there is no registration, it shall belong to the donee, who in good
faith, first took
possession.
c. In the absence of the two above, to the donee in good faith, who has
the oldest title.
Note Cases:
The donee who first took possession of the land is deemed the owner, if
the first donee who registered his title first is in bad faith. (Cagaoan v.
Cagaoan, 43 Phil. 554).
Discuss - Fernandez v. Mercader, 43 Phil. 581.

HOW SHOULD DONEE ACCEPT DONATION :

Art. 745. The donee must accept the donation personally, or through
an authorized person with a special power for the purpose, or with a
general and sufficient power; otherwise, the donation shall be void.
Additional Duty of Agent of Donee:
Art. 747. Persons who accept donations in representation of others
who may not do so by themselves, shall be obliged to make the
notification and notation of which Article 749 speaks.
1. How may a donee accept a donation?
Basis: Arts. 745 & 747
a. Personally
b. Thru Agent authorized with SPA or GPA
2.

What is the required form of authorization and acceptance by the

authorized person?
Basis: Arts. 745, 747, 749 (a) The authorization to accept on behalf of the donee should be in a
public instrument form pursuant to Art. 1358 (1).
(b) The fact that the donor is notified of the acceptance by donee thru his
agent and this is noted in the deed of donation or in the separate
notarized acceptance document, if any.

3. What is the legal effect if donation is accepted by another without

authority from donee?
A. Donation is void. No transmission of property to donee. Donor remains
as owner.
WHEN MUST ACCEPTANCE BE MADE :
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Art. 746.

Acceptance must be made during the lifetime of the

donor and of the donee.

Reason for the law: Donation is personal between donor and donee.

Art. 746 rule is applicable to donation inter vivos only, and NOT to
donation mortis causa.
Why? In donation mortis causa, acceptance by donee is effective
only after death of donor.
A donation mortis causa is
revocable anytime by donor while alive.

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