Published 28 August 2020, The Daily Tribune

Ever an optimist, I have the greater tendency to believe that a crisis brings out the best in people. In emergencies and dire situations, what most would classify as irresponsible or insensitive behavior is typically the exception than the rule.

Since our government began imposing community quarantine restrictions, I have seen some of the most glimmering acts of liberality and heroism. Among the most notable of these are the numerous initiatives that sprung up in which citizens pooled resources to donate essentials of varying kinds: protective gear, food, and even gadgets for our schoolchildren who are newly reckoning with the constraints of distance learning.

There is very little, if at all, of the things we engage in as a modern society that have remained untouched and unregulated by law. Donations are no exception. As early as 1889, these acts of liberality within our jurisdiction have been regulated by the Old Civil Code, made effective in the Philippines by Spanish Royal Decree. Following our emancipation, a new legal regime came to force and now, the uninitiated would do well to know that every gesture of generosity is a both a contract and gesture of time-honored legal consequences that are likely already spelled out in Book III, Title III of the New Civil Code.

To be cloaked with validity, it must conform to certain formal and substantive requirements, subject to its classification. For purposes of this article’s discussion, let us confine ourselves to donations inter vivos or those intended to take effect during the lifetime of the donor, as in the case of COVID-19 initiatives previously mentioned.

Here are the Do’s and Don’t’s of Donations Inter Vivos.

Do: Be the owner of the property donated at the time of your donation.

Donations of property made by one who is not the owner thereof are generally void, consistent with the principle of nemo dat quod non habet — no one can give what he does not have.

Don’t: Donate when you are among those disqualified by law.

The following individuals are disqualified by law from donating to each other:

a. Those guilty of adultery or concubinage at the time of the donation;

b. Those found guilty of the same offense, if the donation is made in consideration thereof;

c. Anyone vis-à-vis public officers or their spouses, descendants and ascendants, if the donation is made by reason of their office;

d. Testators, vis-à-vis those who are incapacitated to succeed by will by reason of unworthiness; and

e. Spouses, to one another, if the donation is made during the marriage, except moderate ones given on the occasion of any family rejoicing.

Donations made in violation of these prohibitions are likewise void.

Do: Observe the formalities required.

If a donation involves personal property not exceeding P5,000 in value, the donation may be made orally, accompanied by simultaneous delivery of the thing or document representing the right donated. If the property involved exceeds P5,000, the law mandates that both the donation and the acceptance thereof be in writing. If the property involved is real property, such as a parcel of land, the donation and the acceptance thereof must both be made in a public instrument. Note that documents acknowledged before a notary public qualifies as a public document. It also bears noting that the acceptance need not be made in the same instrument, so long as formal notice thereof and the fact of acceptance are communicated to the donor. For such a donation to bind third persons, parties must be reminded to register the same in the Registry of Property.

Don’t: Donate without reserving sufficient means to support yourself and your family, or donate beyond what you can give away through a will.

While not void, donations made without reservation for support, or those involving an amount that exceeds what the donor may lawfully bequeath by will, are reducible to the extent necessary.

Once it meets the requirements set forth by law, donation then becomes a whole new mode of acquiring ownership. A transfer of title from one person to another is effectively accomplished, and the donee becomes the absolute owner of the property donated.

Donations inter vivos are generally irrevocable, which means that the donee shall remain undisturbed in his ownership, subject only to a few exceptions relating to the excessiveness of the donation, the non-fulfillment of charges or conditions that may have been imposed by the donor, the subsequent appearance of children whose existence the donor may not have been aware of, and the fact of the donation’s excessiveness (inofficious donations).

I hope this basic “primer” has empowered you to embark on more gestures of generosity, assured that the law has long afforded ample protection of your rights, be you in the position of donor, or donee.

After all, it has been said that our Almighty God favors a cheerful giver.

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