GIFT CONTRACT

What does Italian law establish for gift contracts

Article 769 of the Italian civil code establishes what a gift contract is, stating that it is an agreement according to which a party freely decides to enrich the other party by disposing of his/her rights in favour of the other party, or taking on an obligation.

In this way, by means of a gift agreement a patrimonial transfer takes place from the donor to the other party. Essential aspects of this contract are its gratuitous nature and the spirit of liberality. In fact, the donor decides to renounce his own right/s or to assume an obligation in favour of the recipient, without receiving anything in exchange, this therefore demonstrates the gratuitousness of the agreement.

The other essential aspect of this contract is the spirit of liberality, which is the spontaneous, free feeling which makes the donor wish to give the other party a gift.

The decision to offer this gift must be the result of a spontaneous personal evaluation made by the donor himself.

The gift can only be made if the asset/s are present in the donor’s patrimonial sphere; the donation is null if it is connected to future assets. Future assets are all those assets that are not present in the donor’s patrimony at the specific time.

It is possible under Italian law to gift an asset while keeping the right to its use during the donor’s lifetime, in what is described as “usufrutto”. In this case it is possible to use the gift contract in order to settle delicate family relationships by transferring the property of the asset to the other party, but at the same time the donor will still have the right to use the assets until her/his death, when the usufruct will end.

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