Revision of the conditions and charges which affect gratuitous acts

Author:PhD. Romeo Popescu
Position:Associate Professor, Bucharest University, Faculty of Law
Pages:53-59
SUMMARY

In practice there are multiple situations when the gratuitous acts (liberalities) - donations and legacies – are subject to charges or conditions. The fulfilment of the charges or the meeting of the conditions is achieved in time (more decades or even over a century). During this period of time, the situations taken into account by the transferor and the beneficiary may suffer significant alternations so that the meeting of the conditions or the fulfilment of the charges becomes extremely difficult or excessively onerous for the beneficiary. The issue of accommodating the conditions and charges so that the spirit of the gratuitous act consented by the transferor be observed, is raised. We are in the presence of an application of the hardship theory in the field of gratuitous acts subject to charges or conditions. It has to be underlined that the revision can be obtained if an impossibility to perform in the modality set forth by the donation or by will occurs, but an accommodation of the charges or conditions is possible so that the transferor’s will – in its spirit, and not necessarily in its letter – can be observed.

 
CONTENT
Revision of the conditions and charges which affect gratuitous acts 53
REVISION OF THE CONDITIONS AND CHARGES WHICH
AFFECT GRATUITOUS ACTS
Associate Professor PhD. Romeo POPESCU
Bucharest University, Faculty of Law
Abstract:
In practice there are multiple situations when the gratuitous acts (liberalities) - donations and
legacies – are subject to charges or conditions. The fulfilment of the charges or the meeting of the
conditions is achieved in time (more decades or even over a century). During this period of time,
the situations taken into account by the transferor and the beneficiary may suffer significant
alternations so that the meeting of the conditions or the fulfilment of the charges becomes
extremely difficult or excessively onerous for the beneficiary. The issue of accommodating the
conditions and charges so that the spirit of the gratuitous act consented by the transferor be
observed, is raised. We are in the presence of an application of the hardship theory in the field of
gratuitous acts subject to charges or conditions. It has to be underlined that the revision can be
obtained if an impossibility to perform in the modality set forth by the donation or by will occurs, but
an accommodation of the charges or conditions is possible so that the transferor’s will – in its
spirit, and not necessarily in its letter – can be observed.
Keywords: the gratuitous act, donations, legacies, an accommodation of the charges or
conditions.
1. Preliminaries. There are multiple cases in practice where gratuitous acts
(both donations and legacies) are subject to charges or conditions. Moreover, the
charges and conditions do not regard the obligations, namely events that shall be
performed, respectively be fulfilled immediately after the gratuitous act (liberality)
starts producing effects, but sometimes they cover very long periods of time (more
decades or even over a century). During this period of time, the cases taken into
account by the transferor and the beneficiary may suffer significant alternations so
that the meeting of the conditions or the fulfilment of the charges becomes
extremely difficult or excessively onerous for the beneficiary. The issue of
accommodating the conditions and charges so that the spirit of the gratuitous act
consented by the transferor be observed, is raised.
The most issues are raised in practice in those hypotheses where beneficiary of
the gratuitous act is a public legal entity (administrative- territorial units, schools,
universities, hospitals etc.) or private legal entity (association, foundations etc.),
Law Review vol. I, issue 1, Januar
y
-June 2015, p. 53-59
54 ROMEO POPESCU
and the obligations to be performed have a continuous character and an unlimited
time extent.
2. Area of application. According to art. 1.006 Civil Code „If, due to some
unforeseeable circumstances and not attributable to the beneficiary, occurred after
the acceptance of the gratuitous act, the meeting of the conditions or fulfilment of
charges which affect the gratuitous act became extremely difficult or excessively
onerous for the beneficiary, he/she can ask for the revision of the charges or
conditions”.
We are in the presence of an application of the hardship theory in the field of
gratuitous acts subject to charges or conditions. It has to be stated that not any
difficulty in the meeting of conditions and the fulfilment of the charges grants to
the beneficiary the right to obtain their revision. The legislator uses the wording
extremely difficult” and „excessively onerous”, which means it is absolutely
necessary that very serious difficulties exist, that could not be foreseen by the
transferor at the moment when the donation has been made or when the will has
been drawn up, and by the donee upon conclusion of the donation agreement or
by legatee upon accepting the legacy. The monetary instability, economical crisis,
depreciation of the immovable property value and other such events recently
occurred and known by the transferor and beneficiary – if they shall be repeated in
the near future without totally unusual intensities being registered – shall no more
justify the revision of the conditions and charges. Thus, new economical, financial,
political or social circumstances or events and obstacles the donor or testator did
not foresee must exist.
It has to be underlined that the revision can be obtained if an impossibility to
perform in the modality set forth by the donation or by will occurs, but an
accommodation of the charges or conditions is possible so that the transferor’s will
– in its spirit, and not necessarily in its letter – can be observed.
Upon request of the beneficiary of the gratuitous act, the court is entitled to
take the proper measures in order to allow the accommodation of the charges and
conditions to the new circumstances, the will of the transferor being observed as
much as possible.
The French jurisprudence (which can be turn to advantage in our country
because the texts of the new Civil Code are inspired by the French Civil Code, as
amended in 1984) has rendered certain court decisions having a value of principle,
which are deemed to configure the field of application of such legal institution.
For example, there have been cases when a building has been bequeathed to a
town under the charge that such building should be used as school. At a certain
point, by an action of the authority, the school has been closed either due to lack of
pupils, or because it was no more in compliance with the legal rules in force (and
the upgrading up to the required standards made necessary enormous expenses,
the pertaining funds being unavailable). Under such circumstances, the claim for
Revision of the conditions and charges which affect gratuitous acts 55
revision of the charges has been upheld which can mean even the authorisation to
sell such asset, and the price should be used within the scope according to the will
of the transferor (for example, the building shall be used as library or the money
obtained from the sale of building to be used for purposes in relation with the
supporting of the children from such town for their training and education).
It was also the case of an asset used, according to the will of the testator, as
presbytery, and at a certain moment the position of priest in that town has been
suppressed.
Also, in another case, a widow bequeathed more immovable properties to an
asylum, under the charge that those immovable properties to be used as
appurtenances of the asylum for elder people. As at a certain moment mandatory
legal regulations have been adopted in respect to the security and comfort rules
which the buildings designated to receive the public and to offer care services for
elder people had to comply with, the asylum has claimed the revision of the
charge. The court upheld the claim under the reason that the immovable properties
which made the object of the legacy were incompatible with the new adopted legal
provisions, irrespective of the works, even substantial, which could have been
performed.
There have been cases where the courts rejected the claim for revision of the
charge. In a case, tried by Tribunal de Grande Instance de Paris, a legacy by
particular title has been agreed upon, having as object an apartment, in favour of
Paris City Hall subject to the charge for it to use this apartment as a museum
designated for the displaying the paintings of the husband of the testator Even
though in the will it has been provided that the museum should have been
completed within two years, the city hall limited its activity to relocate the art
works in the basement, difficult for the access of the public, while the apartment
has been affected to the lodging of a curator of another museum. The court has not
accepted any of the reasons regarding the difficulties of fulfilment of the charge
raised by the city hall in support of its claim for revision of the charge, such as the
lack of space, the necessity of insuring the security of the space, the fact that the
inhabitants of the other flats could be disturbed by the public access or the fact that
there are in progress challenging projects regarding the turning of the apartment
into a museum. In the rationale of the court decision, the court held that the legatee
is firstly bound to evaluate the charge before accepting the gratuitous act, and if it
is deemed from the beginning as being unrealistic, in the sense that it cannot be
reasonably fulfilled, then the legatee must refuse to accept the gratuitous act. The
court also held that it is not admissible that the legatee accepts the gratuitous act
and then is exonerated from fulfilment of the charge by invoking certain
difficulties, known to it from the beginning.
3. Settlement of the claim for revision. Art. 1.007 provides: „(1) By observing,
as much as possible the will of the transferor, the court to which the claim for
56 ROMEO POPESCU
revision is submitted may order quantitative or qualitative amendments to the
conditions or charges affecting the gratuitous act or to group them together with
those similar arising out from other gratuitous acts. (2) The court may authorise the
partial or total divestiture of the gratuitous act object, determining that the price to
be used for purposes according to the will of the transferor, as well as any other
measures to maintain as much as possible the destination intended by him”.
The court in front of which the claim was brought by the beneficiary of the
gratuitous act may take, according to the law, a large range of measures, subject to
observing, as much as possible, the will of the transferor:
i) quantitative amendments may be ordered, in the sense of diminishing the
value or decreasing the periodical character of the undertakings that encumber the
gratuitous act. For example, the object of the legacy is represented by assets
producing fruits, and the charge must be fulfilled out of the value of the fruits
generated by the asset (out of the interests generated by an amount of money or
the rent obtained following the lease of a real estate). On the ground of the
decreasing of the interests or rents, the court may decrease the value of the charge
up to the incomes the asset which makes the object of the gratuitous act generates
or may order that the obligation should be performed at longer delays, so that the
fruits of the asset which makes the object of the gratuitous act be able to cover the
charge.
ii) qualitative amendments may be ordered, the court aiming to accommodate
the charges and conditions in the scope of the interest in the service of which they
have been created, so that the benefits obtained as a result of the gratuitous act
under scrutiny receive the destination which complies the most with the will of the
transferor. For example, by will a charge for a village was provided that from the
incomes obtained from the lease of some real estates to be ensured the food for two
older persons, alone and in need. If at a certain moment such persons move into
another village, they may be provided with the proper amount for the
procurement of the food.
Also, if a donee is under the charge to pay a to a third beneficiary a life
annuity, and at a certain moment the donee retires prematurely on medical
grounds and the rent is insufficient to pay the rent and cover his own expenses, the
court may uphold the request that the charge should consist in providing the
support in kind to the third beneficiary, especially if the later has enough incomes,
but is in need of a permanent care.
iii) the conditions or the charges may be grouped together with similar ones arising out
of other gratuitous acts. For example, the testator has left more immovable properties
to a village subject to the charge that from the rents generated by such assets, 5
monthly social aids of 500 lei each to be granted to the poor families and with
many children; by the same will an amount of money has been bequeathed to the
school of such village in order to grant 5 scholarships of 500 lei each for the
children of the secondary education with good school score. Under the
Revision of the conditions and charges which affect gratuitous acts 57
circumstances of considerable decrease of the rents obtained from the immovable
properties, as well as the interests, and the town hall and the school can no more
provide the aids and the scholarships in the amount provided under the will (the
fulfilment of the charges becoming extremely difficult), the charges can be revised
in the sense that out of all incomes obtained to be granted 2 monthly scholarships
to the children having good scholar score and originating from families with poor
material conditions.
We deem that the concept „other gratuitous acts” must not include only the
case when all gratuitous acts are granted by the same testator or donor, but also
that where more transferors exist, the gratuitous acts are subject to similar charges
and the beneficiaries are the same. For example, by two different wills, 2 testators
bequeath to an university different amounts of money subject to the charge that
only out of the interests generated by the capitals (but not out of the capitals also)
10 scholarship in amount of 2,500 lei each to be granted twice a year to the
deserving and indigent students, the students being nominated by the senate of the
university. If the interests are not sufficient to provide the scholarships, the court
vested with the revision of the charge may hold that instead of 20 scholarships
only 5 scholarships in the stipulated amount to be granted, and the source of the
incomes to be the interests generated by the two capitals.
iv) may authorise the partial or total divestiture of the object of the gratuitous acts,
ordering that the price should be used for the purposes in accordance with the will of the
transferor. For example, the immovable donated or bequeathed can no more be
used as asylum because does not meet the security and operational conditions, and
the accommodation of it to the new legal requirements is extremely onerous for the
beneficiary of the gratuitous act. In this case, the divestiture of the immovable can
be authorised, and the money obtained should be used for the upgrading or
extension of another asylum where the individuals from the village indicated by
the transferor can be taken care of.
v) may order any other measures to maintain as much as possible the destination
intended by the transferor. The legislator took into consideration the variety of
circumstances which can be met in practice and granted the courts the possibility
to order, in keeping with the object of the claim for revision and the circumstances
of the case, the most appropriate measures so that the purpose intended by the
transferor to be achieved. This legal provision has the role of a genuine „ backup
text”, which can be used by the courts in those hypotheses where the express legal
provisions regarding the measures to taken are insufficient.
4. Removal of the revision effects. According to art. 1.008 of Civil Code, „If
the reasons which have determined the revision of the conditions or charges do no
more exist, the interested person may claim the removal for the future of the
revision effects”.
58 ROMEO POPESCU
Interested person may be the transferor himself (in case of donation subject to
the charges), the transferor’s heirs, testamentary executor (who must survey the
observance of all testamentary provisions) or even the beneficiary of the charge.
For example, due to the decrease of the number of pupils and their transportation
with a minibus in a neighbouring town, the court may decide that a building
bequeathed to a village subject to the charge of being used as school (and which
has been used for this destination) to keep being used as a library. If afterwards the
number of pupils is sufficient for the opening of the school in that village, such
building shall be used once more as school.
Therefore, sometimes the revision of the conditions and charges has not a final
character, but only a temporary one. In such case, the issue of the existence of res
judicata of a judgement does not exist otherwise than when the reasons
determining the revision of the conditions or charges still exist.
5. Certain procedural aspects. The revision of the conditions or charges may
be requested as a main claim, contradictorily with his donor, or with the heirs of
donor or heirs of testator, as the case may be, such being the individuals who could
be interested in invoking the non-fulfilment of the charge. In numerous situations
the revision is requested by a counterclaim, provided that by the principal claim is
requested the revocation of donation or of legacy for non-fulfilment of the charges.
In the hypothesis when the court shall asses that the conditions are not met
(for instance, because the fulfilment of the charge became difficult, but not
extremely difficult) it shall reject the claim for revision, but the beneficiary of the
gratuitous act can reiterate it, if the circumstances shall be changed.
It is important to state that in the Civil Code is regulated the revision of
conditions and charges by the court. Nothing stops the interested parties to solve
this issue by amicable way, by settlement, without being necessary that the
beneficiary of the gratuitous act to bring an action before the court. The donation
agreement can be amended by parties’ agreement, or a settlement agreement by
which the interested parties avoid litigation can be reached.
REFERENCES
[1] L. Pop, I.-F. Popa, S.I. Vidu, Elementary treatise of civil law. Obligations. Universul
Juridic, Bucharest, 2012, p. 152-160;
[2] C. Zamşa, in The New Civil Code. Comments on articles, coordinators Fl. A. Baias,
E. Chelaru. R. Constantinovici, I. Macovei, Ed. C.H. Beck, Bucharest, 2012, p. 1329-1331.
Revision of the conditions and charges which affect gratuitous acts 59
[3] J. Patarin, Révocation des libéralités pour l'inexécution des charges: conditions de
recevabilité d'une demande reconventionnelle en révision des charges (art. 900-2 et 900-5 c. civ.) et
indemnisations consécutives à la révocation, în RTD Civ. 1995, p. 167-169.
[4] Fr. Deak, R. Popescu, Treatise on succession law, vol. II. Testamentary succession,
Ed. Universul Juridic, Bucharest, 2014, p. 132-133.
[5] M. Grimaldi, Révocation d'un legs particulier consenti à une commune qui n'a pas respecté
les charges prévues par le legs, Recueil Dalloz 1995, p. 49.
[6] C.Macovei, C.-M. Dobril, în The New Civil Code. Comments on articles, coordinators
Fl. A. Baias, E. Chelaru. R. Constantinovici, I. Macovei, Ed. C. H. Beck, Bucharest, 2012,
p. 1.054.
[7] D.N. Theohari, The gratuitous acts subject to term, condition and charge, Ed. Hamangiu,
Bucureşti, 2009, p. 190.