DONATION IN PROSPECT OF DEATH (DONATIO MORTIS CAUSA)

Abstract

Donation in prospect of death represents a legal transaction witha long legal tradition. This institute shares common Roman legal roots with atestament and legacy. In different time periods of the development of Roman law,donatio mortis causa had variable legal nature, with the dominance of the onecreated in the time of Justinian’s law wherein donatio mortis causa representeda legacy. It was an unencumbered desposal of a donor for the benefit of a doneewith effect after the death of the donor, under the condition the donee outlivedthe donor. As such, donatio mortis causa could be revoked.The disputable legal nature had marked further development of a donation inprospect of death.Hence, ACC accepted double nature of a donation in prospectof death, as a legacy and as a donation contract, while SCC accepted Romanconception. Such divergent interpretation has remained to date, since donatiomortis causa has not been regulated neither by current contract nor inheritancelaw. It is, generally, believed that donatio mortis causa represents a type ofdonation contract inter vivos, wherein the handing over of the object of donationhas been postponed until the death of the donor. It is a donation contract enteredinto under suspensive condition that occurs at the moment of death of the donor,and the condition is for the donee to ourlive the donor. If the donee happens todie before the donor, his heirs have a right to request handing over of the objectof donation.Donatio mortis causa contract, as a rule, is irrevokable.