When can a gift be annulled?

Question

José Manuel Alburquerque · Accepted Answer

In Catalonia a gift cannot be undone once the donor knows that the recipient has accepted it, so having a change of heart is not enough to reverse it. The “Código Civil de Cataluña”, the Catalan Civil Code, only allows it to be revoked on five grounds, such as the donor later having a child, the ingratitude of the recipient or the donor's poverty. The time limit for doing so is one year. Annulling it because it was flawed from the start is another matter, as with a gift of a flat made without a public deed, a gift by someone who was not in a position to understand what they were doing or one made by mistake, through deception or under threat. Revoking it because of what happens later Revoking means cancelling a gift that was valid, because something has happened afterwards that the law takes into account. The Catalan code only allows it on these grounds: The donor having a child after making the gift, even if they already had others. A child of the donor whom the donor believed to be dead turning up alive. The recipient failing to meet the obligations the donor imposed, such as paying the donor a sum or caring for the donor. The ingratitude of the recipient, which includes any criminal offence against the person or property of the donor or of the donor's children, spouse or partner in a Catalan stable partnership (“pareja estable”). It also includes, in general, any conduct towards them that is socially unacceptable, even if it is not an offence. The donor's poverty, that is, being left without sufficient means to support themselves. The time limit for revoking is one year from when the event occurs or, in the case of ingratitude, from when the donor learns of it. If the event is a criminal offence, it runs from when the judgment finding that it was committed becomes final. It is a time bar (“caducidad”), which a mere “burofax” (a certified letter with proof of content) does not halt. It is advisable to give notice of the revocation straight away by burofax or through a notary, because, in general, anything the other person sells or mortgages before receiving it remains valid and only what the asset was worth when it was given can then be claimed from them. If they do not return it, you must attempt the agreement that the law generally requires before going to court and bring the claim before the year is up. In most of the rest of Spain the applicable code is the Spanish Civil Code (“Código civil”), which is stricter. There the birth of a child only allows revocation if the donor had no children when making the gift, ingratitude is limited to certain criminal offences and to refusing the donor maintenance, poverty is not a ground and the time limits vary according to the reason. Annulling it for a defect from the outset Annulment is something else, because the gift was flawed from the start: Lack of form. A gift of a property is only valid if the donor makes it and the recipient accepts it in a public deed. A gift of a flat signed in a private document is not valid. A gift of movable items must be made in writing, unless they are handed over at the same time. Lack of capacity. The donor must have sufficient capacity and be entitled to dispose of the asset. If they were not in a position to understand what they were doing, for example because of advanced dementia, the gift can be annulled. Defective consent. If the donor made the gift by mistake, after being deceived or under violence or threats, they can ask for it to be annulled. Here the Spanish Civil Code applies, because the Catalan code has no rules of its own on these defects in a gift. There are four years. If there was violence or threats, they run from when these ceased. In cases of mistake and deception, they run from the completion of the gift, which in principle is when it is made and accepted. If someone took advantage of an elderly or dependent person to obtain a gift of their assets, it may be treated as deception or intimidation, depending on the case. Similar cases with their own rules If the donor already had debts when making the gift and has no other assets left to pay them, the gift does not prejudice those creditors, who can ask for it to be set aside as against them. If the gift leaves a child without their forced share (“legítima”), when the donor dies the child can ask for the gift to be reduced. Anyone who wants to be able to recover the asset in certain cases can provide for this when making the gift, with a reversion clause or with obligations set out in the deed.