DONAȚIILE DEGHIZATE ȘI INDIRECTE
CONCEALED AND INDIRECT DONATIONS*)

Summary/Abstract: Together with the manual gift, concealed and indirect donations represent derogations from the rule of the authentic form established ad validitatem by the provisions of art. 813 of the Civil Code, recognized by the judicial practice and the doctrine. The concealed donation is a disguised gift, dissimulated by an act of an apparently (externalized) different nature, onerous or neutral (abstract). In practice, there are certain difficulties in differentiating a concealed donation from an indirect donation. From the point of view of validity requirements, the apparent act must meet all its substantive and formal requirements, while the secret act (the donation itself) must meet the substantive requirements of a gift but, from the point of view of formal requirements, it derogates from the requirements imposed by law to donations. The effects of concealed donations are identical to those of regular donations. From the point of view of evidence, since this is, in fact, a simulation, its proof is made according to the common law in this matter. The indirect donation, although it involves a support act (vector) ensuring the transfer of rights from the donor’s patrimony into the donee’s patrimony, unlike in the case of concealed donation, contains no element of simulation and, on the other hand, unlike the pure and simple donation, also contains no intrinsic clues indicating that it is a gift. Consequently, the indirect donation involves a ambivalent act in form, but which, in order to be qualified as such, requires the proof of the fact that it was made with the intention to gratify (animus donandi) by the donor. The indirect donation may be achieved either through onerous acts (sale, exchange, rental), or through neutral acts (issuance or endorsement of an instrument to order; transfer of registered securities; a payment made for somebody else; stipulation in favor of a third party; waiver of a right). From the point of view of substantive requirements, the indirect donation requires meeting both the vector act requirements and the gift requirements. From the point of view of form, the vector act requirements must be met, but not the requirements provided by the law for donations (authentic form) as well. The proof of indirect donations, given the fact that it refers to matters of fact (on the one hand, the impoverishment of the donor and the correlative enrichment of the donee, and on the other hand, the existence of the intention to gratify from the donor), may be made by any means of proof.

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