A.9.6. The donation in the sense of article 7:177DCC

The interpretation of the text of article 7:177 DCC and the parliamentary explanation pertaining to it is a real puzzle. In no. 2.2 of chapter IV I have tried to make clear what kind of donations are ‘donations in the sense of article 7:177 DCC’.

A donation that brings about conditional obligations (with the element ‘surviving’) or obligations with a suspensive time limit (with the element ‘passing away’), or a donation that brings about an unconditional obligation aiming at devolution on a suspensive condition is only a ‘donation in the sense of article 7:177 DCC’ if the donation has not been carried out. A donation is deemed to be carried out when the obligation is performed, something that is not relevant in the event of conditional obligations or obligations with a time limit, but that can be relevant if the obligation is unconditional and makes a conditional devolution compulsory.The fact that the performance can be claimed can also be seen as carrying out. Even if the obligation only aims at devolution on a suspensive condition, this does not change the fact that the performance is claimable forthwith.This is not the case for conditional obligations or obligations with a suspensive time limit.

If the performance has not been carried out and if the performance is not claimable, the question has to be asked whether the purport is such that there is question of a donation or gift in the sense of article 7:177 DCC. An explanation is only dealt with at this stage.

The ‘paper donations’ which are commonly used by the notarial profession are not ‘donations in the sense of article 7:177 DCC’ and therefore require no prescribed form.