Motto: “That’s what I consider true generosity: You give your all, and yet you always feel as if it costs you nothing.” – Simone de Beauvoir
In the human nature we can find a bundle of features shared by the members of the species, equal in shape, but different in intensity. Among them, there are universal feelings that act positively on each other’s behavior: mercy, love, sympathy or generosity. Given the ubiquity of expressing these feelings, the law could not remain indifferent to the way they manifest and produce effects on social relations.
With regards to generosity, the Civil Code foresees a title dedicated to liberalities, which regulates the donation regime (Book IV, title III, chapter II of the Civil Code). Thus, although the legislator comes to meet those who want to share form their abundance, it imposed the observance of certain rules to protect the interests of the parties involved. It also could not ignore the multitude of “mini-donations” made daily in the form of gifts that are a normal part of life. Therefore, the regime of liberalities in the Code provides nuances for different types of generosity.
Among the donations with a special regime, there are the indirect donations, the disguised ones and the hand-to-hand gifts [art. 1.011 alin. (2) C.civ.]. We will focus on the latter, since these are by far the most common and they have special rules applicable unlike the former two.
In the following, we will examen the remedy that can be used to solve the situation in which an apparent hand-to-hand gift is granted without complying with the legal conditions.
To answer this dilemma, we will start from a practical example. Thus, suppose Primus is a member of an N.G.O. This association has public accounts and uses various advertising campaigns to raise funds from the public to finance its work. One day, Secundus, a citizen interested in the purpose for which the N.G.O. militates, decides to support its initiative by transferring to the association’s account an amount of 30,000 lei. Primus receives notification about the replenishment of the account and, being the first time he receives such a large sum, he wonders if he has to do something about it or not.
A. General rule on the donation contract
The golden rule of the Civil Code is that no form (not even a written one) is necessary for people to conclude contracts. The simple verbal agreement is enough (art. 1.178 Civil Code). However, in cases where the legal transaction arising from the Convention presents certain risks for at least one of the parties, the legislator wanted to provide additional protection to ensure, as far as possible, that those involved know what they are contracting.
One of these protective methods is the establishment of a form which the agreement must be given into, a form necessary ad validitatem, most often as a notarial act. Given that in the case of a donation, the donor voluntarily renounces forever an asset from his patrimony without receiving any patrimonial return, the law established the rule that any donation be concluded by an authentic document, also stipulating that non-compliance with this form leads to the absolute nullity of the contract [art. 1.011 alin. (1) C.civ.]. Thus, the legislator considered that donations cannot be made in any way the parties to the contract would like. In other words, the law has raised the interest of protecting this legal relationship at the level of public order.
B. Manual gifts
However, as already mentioned, three types of donations are exempted from the form regime [art. 1.011 alin. (2) C.civ.], The general rule of consensualism being applied to them. Unfortunately, the law does not provide additional details on what is a hand-to-hand gift apart from certain general lines provided by art. 1.011 alin. (4) C.civ. Thus, by deducing from the legal text, the hand-to-hand gift could be defined as any movable property of a value less than the amount of 25,000 lei, which is remitted by tradition, except in cases where the law provides otherwise. Therefore, the money can be the subject of a manual gift if the amount offered is less than the mentioned threshold.
Compared to our case, the donation received by Primus is not part of the category of manual gifts given this value above the legal limit. As a consequence, the legal transaction between Primus and Secundus is struck by absolute nullity, in the absence of a contract concluded by an authentic document. In addition, there are no special provisions in G.O. no. 26/30.01.2000 regarding associations and foundations, nor in Law no. 32/19.05.1994 on sponsorship to regulate in a different way from the Civil Code the way of financing N.G.O.
C. Remedies for Primus
Regarding the contracts affected by a cause of nullity, the legislator offered several solutions that could save the agreement of the parties. We will analyze each of these remedies in turn to see which path Primus can follow.
C.1. Confirmation of the contract
Also known as covering the cause of nullity, this treatment is reserved mainly for annulable acts, and not for null ones [art. 1.262 alin. (1) C.civ.]. Acts struck by absolute nullity can only be confirmed in cases expressly provided by law [e.g. most causes of null marriage – art. 294 alin. (2), art. 295 alin. (2) C.civ.], Or, in the present case, there is no such provision.
C.2. Conversion of the null act
This solution was created, par excellence, for null contracts [art. 1.260 alin. (1) C.civ.]. However, the null donation contract for lack of authentic form cannot be converted into another contract, as this legal operation does not comply with the substantive and formal conditions provided by law. The last phrase seems to refer to the fact that a null contract cannot be converted into an unnamed contract (art. 1.168 Civil Code), since, by hypothesis, they are not regulated by law. An additional argument comes from the provisions of art. 984 para. (2) C.civ. which prohibits any other contract by which to make liberalities other than donation or testamentary bequest.
In conclusion, Secundus’ donation cannot be converted into another kind of contract in order to be saved.
C.3. Restoration of the null act
The last way to safeguard the null act is to restore it, namely to return to point 0 and restart the legal operation, this time, correctly (art. 1.259 Civil Code). Primus should therefore contact Secundus and explain the situation to him in order to persuade him to meet, most likely, at a notary and conclude the act of donation in authentic form. The final thesis of the above-mentioned article provides that the redone act is not a ratification of the contract, but an autonomous contract and, thus, it produces effects for the future.
This should not discourage the parties from the performance already provided by Secundus. We believe that the insertion in the contract of a clause noting the early performance of the donor’s obligation would be sufficient to remove any problems that might hover over their understanding.
If Secundus refuses to conclude the contract, we consider that Primus should return the money on the basis of enrichment without just cause (art. 1.345 Civil Code) since it does not hold that amount with any valid title.
We have seen how the law meets the noble behavior of people while trying to protect those who may be exposed to certain risks through their willingness to help. However, if the legal rules are observed, everyone can act as they please. It is advised not to forget that, sometimes, the good done without reason can be a burden and not a help.