Article 227 of the Obligations and Contracts Act (OCA) outlines the circumstances under which a donation can be repealed, and they are as follows:
- When the donee intentionally kills or attempts to kill the donor, their spouse, or child, or is an accomplice in such a crime, unless the act is committed under circumstances that exclude criminal liability (culpability);
- When the donee slanderously accuses the donor of a crime punishable by imprisonment for no less than three years, unless the false accusation is pursued by the injured party and no such complaint has been filed; and
- When the donee refuses to provide support to the donor, from which the donor is in need.
This publication only comments on and analyzes the third hypothesis concerning the refusal of support—Article 227, paragraph 1, item “v” of the OCA.
A donation does not automatically create an obligation for the donee to support the donor. For such an obligation to arise, new facts, beyond the legal cause, must occur, indicating that the donor has fallen into lasting need over a prolonged period and has requested support from the donee. Additionally, the donee must have sufficient means such that by providing support to the donor, the donee does not place themselves or those they support in a worse position than that of the donor. Finally, the donee must have refused the requested support without valid reason. Only in these cases does the moral obligation of the donee transform into a legal one, and its failure to fulfill is sanctioned with the repeal of the donation. Therefore, the grounds for repeal are ingratitude, expressed in the refusal of the donee to provide support to the donor, from which they are in need.
Regarding the concept of “need for support,” in the presence of which the donor may have the right to request the repeal of the donation, there is no legal definition. In legal theory and established case law regarding the application of Article 227, paragraph 1, item “v” of the OCA, it is accepted that the need for support should be assessed based on the factual circumstances of each specific case, taking into account the donor’s personality, their specific living and health needs, individual requirements, social environment, and the conditions of the country’s economic life. It is also necessary for the need to be of a lasting nature. The entire property of the donor is also of importance—both available financial resources and any other assets from which income can be generated.
