Dutch Civil Code

Book 7 Particular agreements

Title 7.3 Donation agreement

Article 7:175 Definition of a 'donation agreement'
- 1. A donation agreement is an agreement on a gratuitous basis, through which one of the parties ('the donor'), engages himself to make a disposition out of his own property with the purpose to enrich the other party to the agreement ('the donee)'.
- 2. An offer to make a donation, addressed to a specific person, is considered to be accepted when the addressed person, after he has become aware of the offer, has not rejected it immediately.

Article 7:176 Voidability on the ground of an abuse of circumstances
If the donor introduces facts from which follows that the donation agreement has been concluded under the influence of an abuse of circumstances and he appeals on account thereof to its voidability, then the burden of proof of the contrary lies with the donee, unless the donation has been written down in a notarial deed or this allocation of burden of proof would in the given circumstances be in conflict with the principle of reasonableness and fairness.

Article 7:177 Donation to be performed after the death of the donor
- 1. As far as a donation agreement necessarily implicates that it is to be performed only after the death of the donor and it has not yet been performed actually during his life, it ceases to exist upon the donor's death, unless the donation agreement was concluded by the donor personally and written down in a notarial deed. To the extent that the donation is related to clothing, personal accessories or in advance pointed out personal jewellery, furnishings or books, a private deed is sufficient as well, provided that it is completely hand written, dated and signed by the donor personally.
- 2. Where the donor has reserved for himself the right to revoke a donation agreement as meant in paragraph 1, such a revocation may be effectuated by means of a declaration of the donor addressed to the donee or by means of a statement to this end in the last will of the donor without giving notice of the revocation to the donee separately.

Article 7:178 Donation to a confidential counsellor or care provider
- 1. A donation agreement is voidable if it is concluded during a sickness of the donor and the donation is made either to a person who practices his profession in the field of individual health care services and who lends assistance to him or to a person who provides mental care assistance and who supports him during his sickness.
- 2. A donation agreement is voidable as well if it is concluded during the time that the donor remained in a nursing home for the elderly or for mentally disturbed patients and the donation is made to the person who owns or manages this institution or to someone who works there.
- 3. Article 4:62, paragraph 2 and 3, of the Civil Code applies accordingly.
- 4. The right to nullify a voidable donation agreement pursuant to paragraph 1 or 2, becomes prescribed three years after the sickness referred to in paragraph 1 has ended or, where it concerns the situation referred to in paragraph 2, three years after the donor was discharged from the nursing home.
- 5. After the donor has died, any person who has suffered a disadvantage from the donation may nullify the voidable donation agreement on the basis of paragraph 1 or paragraph 2. The voidable donation shall in such event only be nullified insofar this is necessary to undo the disadvantage suffered by the person who has nullified it. A right of action (legal claim) to nullify a voidable donation on the basis of the first sentence of this paragraph becomes prescribed at a moment to be determined in accordance with Article 4:54 of the Civil Code, but in any event three years after the sickness referred to in paragraph 1 has ended or, where it concerns the situation referred to in paragraph 2, three years after the donor was discharged from the nursing home.

Article 7:179 End of a revocable offer; offer for a reward
- 1. Contrary to what is provided for in Article 6:222 of the Civil Code, an offer to make a donation that could be revoked by the offeror at the time of his death, shall cease to exist when he dies, unless an agreement or the offer itself implies otherwise.
- 2. Where the offer is made for a specific period of time as a way of offering a reward, it shall cease to exist when the offeror dies within that period, provided that at the time of his death there was an important reason for revoking the offer as meant in Article 6:220, paragraph 1, of the Civil Code, or the death of the offeror produces in itself such an imported reason; Article 6:220, paragraph 2, of the Civil Code shall apply accordingly in such a situation.

Article 7:180 Donation subject to a condition subsequent and a condition precedent
Articles 4:140, paragraph 1, and 4:141 of the Civil Code apply accordingly to a donation subject to a condition subsequent, immediately followed by an attached donation subject to a condition precedent.

Article 7:181 Necessary existence of the donee
- 1. An offer to make a donation that does not expire at the death of the offeror, cannot be accepted by someone who does not yet exist at the time of the offeror's death.
- 2. Paragraph 1 is not applicable:
a. if the donor has stipulated that what he donates to a descendant of his father or mother, shall be donated, when this descendant has died or at an earlier moment, to the then living descendants of that descendant, each for equal parts;
b. if the donor has stipulated that what he donates to someone, shall be donated, when thìs donee has died or at an earlier moment, to a descendant of one of the donor's parents and also that, if that descendant is not alive anymore at this moment, the then living descendants of that descendant shall take his place, each for equal parts;
c. if the donor has stipulated that what the donee has left unconsumed at his death or at an earlier moment, will as of that time fall to a then living blood relative of the donor in the hereditary line.

Article 7:182 Fiduciary administration of property
- 1. A written offer to make a donation may stipulate that the donated assets shall be acquired subject to a fiduciary administration of property by a legal administrator.
- 2. Such a fiduciary administration of property has the same legal effects as a fiduciary administration of property instituted by a testator in his last will, on the understanding that:
a. the periods meant in Articles 4:178, paragraph 1 and 2, 4:179, paragraph 2, and 4:180 paragraph 2, of the Civil Code start to run from the moment that the donation is performed, and;
b. the fiduciary administration of property, as far as it has not been instituted in the interest of another person than the donee, also ends when the donor and the donee have notified the legal administrator in writing of their mutual decision to terminate it.

Article 7:183 Liability for legal and factual defects in the donated property
- 1. A donor is only liable for legal defects in a donated right or for factual defects in donated asset if he has not removed these defects although he was aware of their existence and the donee could not have discovered them when the donated asset was supplied to him.
- 2. This liability does not enclose the damage that has been suffered with respect to the donated asset itself, except in the event of fraud.

Article 7:184 Voidability of the donation agreement
- 1. Regardless whether the donation has been performed already, the donation agreement is voidable:
a. if the donee is in default of complying with an obligation imposed on him at the donation, for which no one, neither the donor nor a third party, is able to claim performance [if the donor or a third person is able to claim performance, he may rescind the donation agreement on a breach of contract in the sense of Article 6:265];
b. if the donee deliberately commits a crime against the donor or his nearest relations;
c. if the donee by law or agreement is obliged to contribute in the costs of living of the donor and he is in default of complying with this maintenance obligation.
- 2. By a 'crime' in paragraph 1, point (b), is understood as well: the attempt to or preparation of a crime or the participation in a crime.

Article 7:185 Nullification of a voidable donation agreement
- 1. The right of action (legal claim) to nullify a voidable donation agreement pursuant to Article 7:184 becomes prescribed on the expiry of one year from the day on which the fact that produces a ground for this nullification has come to the knowledge of the donor.
- 2. After the donor has died, a voidable donation agreement can only be nullified on the basis of the previous paragraph by judicial decision and, in the situations mentioned in Article 7:184, paragraph 1, point (b) and (c), only if the fact that produced the ground for nullification has caused the death of the donor.

Article 7:186 Corresponding applicability of Title 7.3 to other gifts; definition of 'gifts'
- 1. The provisions of this Title (Title 7.3) apply accordingly to other gifts than donations, as far as the scope of these provisions do not oppose to their applicability in view of the nature of the operation under which the gift was made.
- 2. A gift is considered to be every operation through which the acting person intends to make a disposition out of his own property to enrich another person. Operations meant in the first sentence are not considered to be a gift as long as this other person, whose enrichment is intended, has not received the performance and neither can lay a claim to it.

Article 7:187 Gifts against a counter performance; mixed agreements
- 1. Where the donee in relation to the gift has to carry out a performance in return, Article 7:186, paragraph 1, shall apply accordingly, except as far as it concerns the application of Article 7:182; furthermore the two following paragraphs will be applicable.
- 2. In the event meant in Article 7:177, paragraph 1, the gift does not cease to exist, but it is voidable. A nullification of the voidable gift has retroactive effect up until the moment of the death of the person who has made the gift. The right of nullification of a voidable gift expires if the donee in time promises to carry out an additional performance which deprives the operation from its intention meant in Article 7:186, paragraph 2. Moreover, the court may, upon the request of an heir of the donee, in stead of nullifying the operation, modify its effects.
- 3. If the gift is voidable on the ground of Article 7:178, then Article 3:54 of the Civil Code shall apply accordingly.
- 4. The previous paragraphs apply accordingly to operations which partly have to be considered as a gift and partly as the compliance with a natural obligation.

Article 7:188 Appointment as beneficiary of a non-indemnity insurance
- 1. The appointment of a beneficiary of a capital sum insurance policy is regarded as a gift as soon as it has been accepted or can be accepted by the appointed beneficiary, unless this appointment is made in order to comply with an obligation which is not derived from a donation agreement. Articles 7:177, 7:179, 7:181, 7:182 en 7:187 do not apply to these gifts.
- 2. Where the appointment as beneficiary of a capital sum insurance policy is considered to be a gift, its value equals the value of all rights and payments resulting from the insurance. If the appointment as beneficiary is only partly regarded as a gift, its value equals a proportional part of the value of all rights and payments resulting from the insurance.
- 3. The amount which the insurer under law or an agreement with the policyholder may withhold from the cash benefits payable to the beneficiary, shall be deducted firstly from the value of the gift.