The Court of Verona has recently expressed its opinion on the prerequisites of donations of modest value, coining a principle with undoubtedly important practical implications: under certain conditions, a simple bank transfer without a reason may suffice to integrate a donation albeit in the absence of a public deed pursuant to Article 782 of the Italian Civil Code.
The case dealt with by the Court of Verona in its very recent judgment No. 845/2024 of 08.04.2024 is as follows: an elderly woman (on several occasions) transfers sums amounting to tens of thousands of euros to an acquaintance in the belief that she is lending her friend the money needed to make some investments; subsequently, however, the good relations between the parties deteriorate and the elderly woman demands the repayment of the loans but the beneficiary of the credits objects that he received donations of modest value and that he does not, therefore, have to return anything.
The judgment, introduced as an opposition to an injunction obtained by the elderly woman against her acquaintance, developed to a good extent, and then resolved, in the ascertainment of the lender/donor’s economic and financial conditions; this was to address and overcome the objection promptly raised by the opposing party from the earliest stages of the judgment that the alleged donations were to be considered null and void because they were not made with the formalities required by Article 782 of the Civil Code, i.e., by public deed.
Before delving into the Court’s solution to the matter, it is useful to remember that a donation is, by definition of the code, that contract by which one party, out of generosity, enriches the other by disposing of its right in favor of the latter or assuming an obligation towards it (art. 769 Civil Code).
For a donation to take place, there must be the animus donandi on the part of the donor, i.e., a willingness to grant gratuitous enrichment to the donee (among many others, Supreme Court of Cassation Civ. 03.06.1980, No. 3621 in Giust. Civ. 1980, I, 2138); at the same time, the increase in the assets of the person benefiting from the donation must correspond to the simultaneous impoverishment of the donor.
With the exception of donations of modest value, such acts of generosity must be formalized by public deed under penalty of nullity (Art. 782 of the Civil Code) and, according to the teaching of the Supreme Court, in such a deed the role of witnesses determines a formality so-called ab sustantiam (Cass. Civ. Sec. II, 30.06.2014, No. 14799 in Dir. Giustizia 2014, July 1); moreover, for the donation to come into effect, the donee must express acceptance.
Returning to the case dealt with by the Court of Verona, the judge accepted the theory of multiple gifts of small value in favor of the donee on the basis of at least two pieces of factual evidence.
The first: at the time of the separate generous acts, the lady was the owner of personal assets (just under a million euros) that at least two transfer provisions, of € 5,500.00 and € 20,000.00, respectively, were considered to be donations of “modest value”; hence the application of Article 783 paragraphs 1 and 2 of the Civil Code, which, as is well known, excludes the need for a public deed to make the donation valid.
According to unanimous jurisprudence, the judge shall assess the reasonableness of the donated goods bearing in mind both the objective element of the value of the donated goods and the subjective element represented by the disposer’s economic potential; through the balancing of both elements, the judge must be able to establish that the donation did not significantly affect the donor’s assets (see commentary on art. 783 of the Italian Civil Code in Codice Civile edited by Pietro Rescigno, ed. 1992, page. 848 sub 5).
The second factual element carefully assessed by the court concerns the absence, in the two transfers, of a precise indication of the reason that could in any way trace the transactions back to loans rather than to donations; in one transfer, in fact, the reason had been omitted altogether, while in the other only the words “… as per the understanding …” had been given.
The court therefore decided that there were separate gifts of small value rather than individual loan contracts precisely because of the absence of any indication in the reasons for transfers made in favor of the beneficiary.
It should also be said that the argument in favour of the loan was also disregarded on the basis of the principle that, for the purpose of the repayment of the sums paid as a loan, the existence of such a contract cannot be inferred from the mere delivery of the sums of money, since it is also necessary to provide proof of the title (Cass. Civ. Sec. VI, 22.11.2022, no. 34294 in Guida al Diritto 2023, 1).
Regarding this argument, however, it is worth noting that, in such contexts, those who naively transfer sums to acquaintances/friends with élan and generosity (well, in the meantime I’ll lend it to you, you need it, then you’ll give it back to me …) are placed at an unquestionable disadvantage compared to those who collected the money: in fact, the burden to prove the cause of the loan is often insuperable when familiarity with the borrower is such that no formal acknowledgements of debt are required to secure the repayment obligation, and everything is merely based on one’s word.
Also perplexing is the principle proposed by the judgment in question according to which unless the cause of transfer is specified as a loan, we are in the presence of a gift of modest value, provided that the donor’s assets allow the invocation of Article 783 of the Civil Code.
An unprecedented “presumption of donation” that imposes the utmost caution in money transfers because, under certain conditions, a simple wire transfer really does suffice to integrate a real donation.
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