Capacity in the law of donations

Abstract

The Maltese Civil Code does not admit donations "Causa Mortis" but only allows donations "inter vivos". The Civil Code defines a donation "inter vivos" "a contract whereby the donor irrevocably and gratuitously transfers a thing to the donee who accepts it". Since a donation is a contract, one must fulfil all the requirements necessary for the vailidity of a contract, including those concerning capacity to enter into a contract. Besides the general capacity to enter into contracts, it must also fulfil the capacity required for the particular contract of donation. Since capacity is the rule and incapacity the exception, the Civil Code in Section 1838 gives a list of those who are incapable of making a donation. A person is capable of making a donation or receive by donation if he is not declared incapable by the law. The capacity to make a donation, has very often been linked up with the capacity to make a will. In fact in the Old Italian Code, Art. 1052 stated, "non puo donare chi non puo fare testamento." This principle was taken from the French Code which regulates the question of capacity in wills and donations together. In fact Art. 902 states, "toutes personnes peuvent disposer et recevoir, soit par donation, entre vifs, soit par testament, except celles que la loi en declare incapable." The two acts are placed together in a number of sections relative to capacity.