Kilka uwag o odwołaniu darowizny
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Date
1986
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Wydział Prawa i Administracji UAM
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Some Remarks on Revocation of a Donation
Abstract
The task of the article is the discussion of essential problems regarding revocation
of a donation by a donor by reason of a flagrant ungratitude of a donee.
The questions as to which the opinions of literature are concurrent were disregarded.
The deliberations focus on the question of the results of revocation of the
executed donation. Does the revocation cause the transfer of ownerships back onto
the donor (a real effect) or oblige only the donee to the return (obligational effect)?
The views of literature on that subject are divided.
First, the author presents the evolution of judicature. After the initial hesitations,
the decision of 7 judges of the bench in the Supreme Court of January 7,
1967, recognized that the revocation of a donation creates only the obligational duty, to return the object of the donation,, concerning real estate, in particular. The
author studies the merits of the decision in a great detail as well as the position
adopted by the doctrine. Many representatives of the doctrine accept the premises
of the decision, but at the same time question some arguments quoted by the Supreme
Court. There are also others who criticize the theses of the resolution. It
can be neverthelles adopted that the position of judicature is settled in that matter.
The author analyses other decisions proving that these questions have their
weightform the legal and social point of view.
Many discussions are raised by the issue whether the revocation of a donation
is permissible as regards one of the spouse, if a given object had entered their joint
estate.The judicature is of an opinion a flagrant ungratitude towards the donor. In
that case the donated object does not enter the joint estate of the spouses. It becomes
the object of co-ownership of both spouses in equal parts. The donor can claim
that a share in that object be transferred onto him, if it was not possible then the
claim would be for the return of the value. The author questions the position adopted
by the judicature and quotes numerous counterarguments.
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 48, 1986, z. 3, s. 1-17