Consequences to the donor
The essential consequence to the donor under the contract of donation is the sacrifice of a
portion or all of his patrimony922. Under article 948 PCC, which regulates the capacity of
the donor, this sacrifice may be produced in all persons’ (legal or physical) patrimonies, because all persons are free to donate as long as they have the capacity to enter into contracts
and to dispose of their rights923. Furthermore, the capacity of the donor to donate is
determined at the time of the donation924 and legal representatives of persons deemed
incapable of conducting their own business cannot donate on their behalf925. It is also worth
mention that parents cannot donate on behalf of their children without consent of the court926.
Beyond the capacity to donate, Portuguese law of donation aims to protect the personal
connection established between donor and donee, as created by the contract of donation927.
Following this objective, only the donor has the power to choose the donee, and he cannot
allow other people to choose on his behalf or to determine the object of the donation928. Only
one exception exists to this rule, where the donor may allow a third party to select, among a
921 C F Almeida, Contratos III (2012); C F Almeida, “Contratos de liberalidade: em especial os contratos para
o uso de coisas corpóreas e incorpóreas” (2011) in Estudos em Homenagem ao Prof. Doutor J. L. Saldanha
Sanches, II.
922 As mentioned before, under art 940 PCC, one of donation’s cardinal elements in Portugal is the decrease of
the donor’s patrimony, by disposing of one of his rights or by undertaking an obligation.
923 In what legal persons is concerned, they may only act, either gratuitously or in view of profit, within the
boundaries set by their articles of incorporation (their “objecto social” or social object of the company) under art 6 of the Business Organisations Code, enacted by Decree Law n. 262/86 of 2 Septembe.
924 Art 949 n 1 PCC. 925 Art 949 n 2 PCC.
926 Art 1889 n 1 (a) PCC. However, parents represent their children when accepting donations on their behalf
(art 1890 n 1 PCC). If they do not do so 30 days after receiving the offer, the children, their relatives, the public prosecutor or the donor may request to the court issue a deadline for the parents to accept the donation (art 1890 n 2 PCC). If this deadline is not met by the parents, the donation is presumed accepted unless the court rules otherwise (art 1890 n 3 PCC).
927 For this reason, if the donee is the receiver of child/adult support (or any other maintenance obligations)
and donates, the persons obliged to maintain the donee may refrain from doing so (art 2011 n 1 PCC). If this is the case, the obligation to provide support will, in some cases, be transferred to the donee and his heirs up to the value of the rights received by donation (art 2011 n 2 PCC).
previously determined group of people, who will be the donee, or how the object of donation will be distributed929.
Under article 954 PCC, an obligation to deliver the subject-matter of the donation is imposed on the donor by the contract of donation. The discharge of this obligation is further regulated under the PCC, where it is defined that the subject-matter of the donation must be delivered in the state it was at the moment of the celebration of the contract of donation, and that all relevant parts, fruits and documents of the subject-matter of the donation (thing or a right)
are comprised within the obligation to deliver930. Furthermore, and bearing in mind that a
contract of donation immediately transfers/creates the rights to the donee or creates an obligation to the donor, delivery is perceived as of crucial relevance by the PCC. That is why the donor’s heirs cannot refuse to deliver the subject-matter of an otherwise void donation if
the donation was confirmed by the donor or by them931.
Consequences to the donee
The donation may benefit one or multiple donees. When a donation is made to more than one donee, the PCC presumes that the donation is made in the same proportion to all donees, and that they cannot benefit from the refusal of one or more of them to receive the benefit
(unless stated otherwise)932. All (legal and physical) persons may receive benefits under a
contract of donation, except when the law expressly forbids them to do so933. Acceptance is
presumed of persons who are declared unfit to conduct their own business by the courts934.
It is also worth mentioning that, in the case of unborn donees, acceptance is presumed under article 952 PCC if they are descendants of an identified person, who is alive at the moment
of the offer, and the legal effects are produced immediately935.
Aiming to protect vulnerable donors, the PCC provides that certain persons (such as doctors, nurses, priests or legal representatives) are forbidden from receiving donations based on their
929 Art 949 n 1 PCC and art 2182 n 2 PCC. 930 Art 955 PCC.
931 Art 968 PCC.
932 Art 944 PCC and with the exception for the donation of the real right to use (usofruto). 933 Art 950 PCC.
934 Art 951 PCC. It is worth mention that non-pure donations (i.e. where a modo is demanded to the donee) are
not presumed accepted, and must, therefore, be accepted by their legal representatives in order to produce legal effects.
935 Art 952 PCC is odd in its effects, considering that the effects of the donation are produced at the moment
personal relationship with the donor936. Other considerations connected with the family may
also be found in the PCC, where if a donee marries a new person without respecting the
waiting period, he or she loses all donations received from the previous partner937; or if the
donation is made to a married person, only that person benefits from the donation938. In
addition, and bearing in mind the protection of the donee, if a donation is made to an underage person, their parents cannot administer any benefits received by donation against the donor’s will or the donation may be made excluding the parents from administering the
benefit received by donation939.