Why can’t the donation be revoked?

The donation is irrevocable, except in exceptional cases. Let’s see when it is not possible to obtain the return of a sum of money or property.

The donation can be revoked by the donor only in three cases: for the occurrence of children, ingratitude (i.e. serious injury or serious damage to the donor’s assets), or for failure to pay maintenance to the donor. These hypotheses, as indicated by the law (art. 801 civil code) appear very generic and difficult to understand by those who do not know the concrete applications of the jurisprudence. Therefore, in this article, we will try to understand for what reason the donation cannot be revoked

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That is, we will see what behaviors, arguments and insults are which, although serious on a moral level, on a legal level do not allow the return of what was given as a gift. But let’s proceed in order.

When a second child is born

The first case in which it is possible to revoke the donation is supervenience of a child. This happens when a child is born after the donation. However, it must be the first child and not a further one. Therefore, the donation cannot be revoked if the donor conceives a second, third, fourth child and so on.

Revocation is also permitted if:

• the first child was already conceived at the time of the donation but the donor was not aware of it;
• the donor discovers the existence of a first child or other descendant that he did not know about when he made the donation;
• the donor adopts a first minor child;
• the donor recognizes a first child after the donation.

In case of separation

Donations made to a spouse during married life cannot be revoked. And this for two reasons:

• first of all because separation, even if it occurs due to serious quarrels, is not considered as a cause of ingratitude;
• secondly because donations, especially those of modest value, fall within the duty of family solidarity inherent in both marriage and de facto cohabitation.

The Court of Cassation once deemed the donation that the father-in-law had made to his daughter-in-law to be irrevocable, despite the fact that the woman had kept quiet that she was already at loggerheads with her husband and that they intend to separate. Once the marriage was dissolved, the house remained with the woman.

Also the betrayal, discovered after the donation, is not cause for revocation of the same due to ingratitude. It is only so when the infidelity takes place in public, with serious damage to the honor and reputation of the spouse (this situation also allows you to obtain compensation for damages).

Serious arguments, separation and betrayals

Simple arguments, even if bitter, between donor and donee do not allow the revocation of the donation due to serious injury. To be considered offensive, the donee’s behavior must express an

persistent, deep and rooted aversion towards the donor. But not only that: it must be manifested in a dramatic way and not just in private form.

In practice, it must be a question of a declared and public disesteem of the moral qualities of the donor and an evident one disrespect for his dignity.

The revocation of the donation presupposes behavior that can be perceived by third parties and which contradicts the sense of gratitude that should characterize the attitude of the donee according to common conscience.

According to jurisprudence therefore It is not possible to revoke the donation:

• in case of refusal and unavailability to assist the donor and take care of his needs, thus leaving him in a situation of abandonment and loneliness (Cass. 10 November 2011 n. 23545);
• lack of care and assistance during the donor’s illness (Naples Court 21 June 2004);
• complaint filed against the donor for personal injuries on the basis of insufficient evidence when the total groundlessness of the accusation is not demonstrated (Cass. 5 November 2001 n. 13632);
• establishment of a civil or criminal judgment against the donor (Trib. Bologna 26 October 2017 n. 2380);
• single attack against the donor which is explained by a climate of conflict arising from a specific situation (Naples Court 7 July 2011);
• sale of the apartment received as a donation (Cass. 29 May 1998 n. 5310);
• decision to end cohabitation in order to maintain an extramarital relationship for a long time (Cass. 25 February 1987 n. 2003).