Indirect Donation and Burden of Proof: Analysis of Order No. 19230/2024

The recent Order No. 19230 of July 12, 2024, issued by the Court of Cassation, provides important clarifications regarding indirect donations and the proof of their liberal nature. This topic proves crucial in disputes related to asset transfers and their legal qualifications. The ruling under examination, involving Mr. S. against Mrs. A., focuses on the distinction between indirect donation and simulated donation, offering significant insights for civil law.

Indirect Donation: Definition and Characteristics

Indirect donation is defined as a contract with a burdensome cause, aimed at enriching the contracting party who receives benefits of greater value, despite the intentions of liberality. This type of donation is distinctly different from simulated donations, where the parties, while formalizing a contract, do not genuinely intend to transfer assets for free. Such a distinction is crucial as it has direct implications on proof and the burden of proof.

In general, indirect donation is a contract with a burdensome cause, established to achieve an additional and different purpose consisting of the enrichment, for mere spirit of liberality, of the contracting party who receives the benefit of greater value, and differs from simulated donation, in which the apparent contract does not correspond to the will of the parties, who instead intend to establish a free contract; it follows that the limitations on proof dictated by Article 1417 of the Civil Code do not apply to indirect donation, and that the proof of the actual liberal nature of the legal transaction can also be provided through presumptions, even in cases where the quality of heir is not attached as the foundation of the claim.

Probative Implications and Legal References

The ruling clarifies that the probative limitations provided by Article 1417 of the Civil Code, which refers to simulated donations, do not apply to indirect donations. For indirect donations, proof of their liberal nature can also be provided through presumptions, thus allowing for greater flexibility in complex evidentiary contexts. This aspect is particularly relevant, especially in situations where the parties cannot provide direct documentation.

  • Civil Code, art. 769: Definition of donation.
  • Civil Code, art. 1417: Probative limitations.
  • Civil Code, art. 2697: Burden of proof.
  • Civil Code, art. 2722: Presumptions.
  • Civil Code, art. 809: Nature and intentions of donations.

Conclusions

Order No. 19230/2024 represents an important step in Italian jurisprudence regarding donations. The clarity provided on the distinction between indirect donation and simulated donation, along with the issue of proof, offers valuable guidance to legal professionals and taxpayers. The ruling invites reflection on the importance of a correct legal qualification of asset transactions, to avoid future disputes and ensure more conscious asset management.

Bianucci Law Firm