The Ordinary Court of Verona recently expressed its opinion on the conditions of donations of modest value, coining a principle with practical implications of undoubted importance: under certain conditions, a simple bank transfer without reason may be sufficient to integrate a donation even in the absence of a public deed pursuant to the ‘art. 782 cc
The matter dealt with by the Ordinary Court of Verona with the very recent ruling no. 845/2024 of 04.08.2024 is the following: an elderly lady transfers sums (on several occasions) to an acquaintance amounting to tens of thousands of euros in the belief that she is lending ‘friend the money needed to make some investments; subsequently, however, the good relations between the parties deteriorate and the elderly woman asks for the repayment of the loans but the beneficiary of the credits objects that he has received donations of modest value and therefore does not have to repay anything.
The judgment, introduced as an opposition to an injunction obtained by the elderly lady against the acquaintance, was largely developed, and then resolved, in ascertaining the financial and financial conditions of the lender/donor; this is to address and overcome the exception promptly raised by the opposing party right from the start of the judgment according to which the alleged donations were to be considered null and void because they were not made with the formalities required by the art. 782 cc, or with a public deed.
Before delving into the solution given to the matter by the court, it is useful to remember that the donation is, by code definition, that contract by which one party, out of a spirit of liberality, enriches the other by disposing of one of his rights or assuming an obligation towards it (art. 769 cc).
For a donation to be made, the animus donandi of the donor must exist, i.e. the will to grant gratuitous enrichment to the donee (among many Cass. Civ. 03.06.1980, n. 3621 in Giust. Civ. 1980, I, 2138 ); at the same time, the increase in the assets of those who benefit from the donation must correspond to a simultaneous impoverishment of the donor.
With the exception of donations of modest value, similar acts of generosity must be formalized by public deed under penalty of nullity (art. 782 cc) and, according to the teaching of the Court of Cassation, in this act the intervention of witnesses determines a so-called formality sustantiam (Cass. Civ. Sez. II, 30.06.2014, n. 14799 in Dir. Justice 2014, 1 July); furthermore, for the donation to take place, the donee’s acceptance must be expressed.
Returning now to the case dealt with by the Court of Verona, the Judge accepted the theory of multiple donations of modest value in favor of the donee on the basis of at least two factual evidence.
The first: the lady was, at the time of the separate acts of generosity, the owner of such personal assets (just under one million euros) to consider at least two bank transfer provisions, respectively of €5,500.00 and €20,000.00, as donations of “modest value”; hence the application of art 783 paragraphs 1 and 2 of the Civil Code which, as is known, excludes the need for a public deed to make the donation valid.
According to unanimous jurisprudence, the modesty of the donated assets must be assessed by the judge keeping in mind both the objective element of the value of the donated assets and the subjective element represented by the economic potential of the settlor; through the reconciliation of both elements the judge must be able to establish that the donation has not had an appreciable impact on the donor’s assets (see commentary on art. 783 of the Civil Code by Pietro Rescigno, ed. 1992 , page 848 sub 5).
The second factual element carefully evaluated by the court concerns the absence, in the two transfers, of a precise indication of a reason that could in some way trace the operations to loans rather than donations; in one transfer, in fact, the reason for payment had been completely omitted, while in the other only the words “…Â as per agreement…Â ” had been reported.
The Court therefore opted for the existence of distinct donations of modest value rather than individual loan contracts due to the absence of any indication in the reasons for transfers made in favor of the beneficiary.
It must also be said that the mortgage thesis was also rejected on the basis of the principle according to which, for the purposes of repayment of sums paid by way of mortgage, the existence of such a contract cannot be deduced from the mere delivery of the sums of money, being it is also necessary to provide proof of title (Cass. Civ. Sez. VI, 22.11.2022, n. 34294 in Guida al lavoro 2023, 1).
Having argued so much, however, it should be noted that, in similar contexts, anyone who naively transfers sums to acquaintances/friends with enthusiasm and generosity (Â well, in the meantime I’ll lend them to you, you need them, then you’ll give them back to me…Â ) is placed in a position of undoubted disadvantage compared to whoever received the money: in fact, the burden of proving the cause of the loan is often insurmountable when the familiarity with the beneficiary is such as not to require formal acknowledgments of debt to guarantee the restitution obligation and everything is based on the word given alone.
Perplexity is also raised by the principle proposed by the sentence in question according to which, if it is not specified in the reason for the transfer that it is a loan, we are in the presence of a donation of modest value, provided that the donor’s assets allow the art to be invoked. 783 cc.
An unprecedented “presumption of donation” which requires the utmost prudence in money transfers because, under certain conditions, a simple bank transfer is really enough to integrate a real donation.