BALANCE SOBRE EL PERÍODO COLONIAL GUATEMALTECO

1.6.1. Long-term relationships

Donations are often regarded by European legal writers as gratuitous transactions entered into between persons who have a previous relationship or who wish to pursue a close relationship in the future. That is one of the reasons why donation is classified as a personal

relationship161 _{and presumed to be closely connected with family life}162_{, after all, family}

relationships are presumed to be long-term relationships – from birth to death. The assumption that donations are entered into by two parties who are close, and who wish to pursue a closer relationship in the future, may also explain why legal authors such as Bell state that in Scots law, where a strong presumption against donation exists, this presumption

may be overcome or even inverted in the case of donations within the family163_.

It is therefore necessary to inquire if a donation must always be aimed at the creation or maintenance of a long-term relationship. This consideration will have important consequences on the objectives to be pursued by an efficient law of donation, because if the maintenance of a long-term relationship is one of the cardinal elements of donation, then the national laws of donation under review must be able to promote a long-term relationship between donor and donee. Most legal literature is silent in this regard, and voices are only found describing donation as socially beneficial and aimed at the improvement of life in society. One of the legal writers who express this idea is Hyland, who states that “the customary gift is designed to improve social relations, to make life in society more cordial

and affectionate”164_{. His opinion is based in arguments which are withdrawn from an}

economic analysis of donation. Hyland’s economic analysis of donation intends to explain the donor’s behaviour as well as his motivation to donate, which is separated into the

160 _{When the benefit given to the community is recognized by form of tax benefit or by any other means.}

Expression used in J M Ricks, J A Williams, “Strategic Corporate Philanthropy: Addressing Frontline Talent Needs through an Educational Giving Program” (2005) Journal of Business Ethics, p 149.

161 _{M Gordon, “Donation” (reissue 2011) SME, p 6.}

162 _{P Malaurie, Les successions, Les Libéralités (5}th _{ed 2012) p 147.}

163 _{G Watson (ed), Bell’s Dictionary and Digest of the Law of Scotland (7}th _{ed, 1890) [2012]) p 298; Forbes v}

Forbes (1869) 8 M 85.

following four different motivations: altruism (“warm glow altruism”); the symbolic utility of the donation in a community which grants the donor with social approval; the fostering of future market relations (establishment of a relationship with trading partners); and the

(previous) commitment of the donor165_.

Out of the four explanations provided for the motivation of the donor by Hyland, only two of them (the symbolic utility of the donation in a community which grants the donor with social approval and the fostering of future market relations) may be directly linked to the motivation towards the development of a long-term relationship between the parties. Nevertheless, altruism is the one which is mentioned the most in economics and sociological

studies166 _{and social approval is the motivation for donation often referenced in economy}

studies167_{. Even though altruism and social approval are often mentioned in economy studies}

on gratuity in the market, these two motivations are difficult to be used in the market context because of the anonymity of the market institutions, which does not allow donors to disclaim

their “good deeds” in a market context168_{. Despite these considerations, altruism and social}

approval may be found in sociological and psychological studies, where they “play the same

part there as money does in economics”169_{, and donations may be easily found in countries}

with a strong market economy170_.

1.6.2. Short-term relationships

Bearing in mind the above, drawing a clear distinction between the motivation to give in general and the motivation to foster a long-lasting relationship in particular, is of extreme relevance. A donation is often described as a juridical act where all parties agree to the result

and juridical consequences of the act, and where each party assumes different risks171_{. But}

165 _{R Hyland, Gifts, A Study in Comparative Law (2009) p 39.}

166 _{As examples, please see E Bertacchini, W Santagata, G Signorello, “Individual Giving to Support Cultural}

Heritage” (2011) International Journal of Arts Management, p 41-55; D R Lichtenstein, M E Drumwright, B M Braig “The Effect of Corporate Social Responsibility on Customer Donations to Corporate-Supported Nonprofits” (2004) Journal of Marketing, p 16-32; L Ray, “Why We Give: Testing Economic and Social Psychological Accounts of Altruism” (1998) Polity, p 383-415; D Bar-Tal, “Altruistic Motivation to Help: Definition, Utility and Operationalization” (1986) Humboldt Journal of Social Relations, p 3-14.

167 _{R Hyland, Gifts, A Study in Comparative Law (2009) p 39.}

168 _{Doubt also expressed by R Hyland, Gifts, A Study in Comparative Law (2009) p 41.}

169 _{J van de Ven, “The demand for Social Approval and Status a Motivation to Give” (2002) Journal of}

Institutional and Theoretical Economics (2002) p 465.

170 _{C Gregory, "Gifts" (1989) The New Palgrave Social Economics, p 109.}

171 _{C F Almeida, Contratos III (2012) p 18; and C F Almeida, “Contratos de liberalidade: em especial os}

contratos para o uso de coisas corpóreas e incorpóreas” (2011) Estudos em Homenagem ao Prof. Doutor J. L.

this classification does not describe the true complexity of the donating act, where juridical effects are produced immediately and upon completion of the relevant juridical act, and

where a relationship is created between the parties and regulated by legal norms172_{. It is also}

important to bear in mind that a personal relationship is connected with the identity of the parties, not the length of time during which the parties are in a relationship, nor does it foresee the establishment of new relationships in the future between those parties. It is therefore possible to find examples of donations which are given by the donor to strangers with whom the donor has no intention to create a future long lasting relationship.

Two of the most common types of solitary donations are charitable donations173_{, which are}

given as the result of a religious, moral or altruistic motivation (for example the alms given to a charity, humanitarian cause, or public institution); and donations given by business to consumers aimed at encouraging them into a commercial transaction in the immediate future174_{. It is therefore possible to argue that donations may have as their objective the}

maintenance of long term relationships or the creation of new long term relationships, but a donation may also adopt the form of a solitary donation, where the donor has no interest in pursuing a long-term relationship with the donee.