The essay deals with the phenomenon of ‘new philanthropy’ from a juridical point of view, wondering if Italian civil law that rules the contract of donation is able to reach a fair balance between the interests of donors and those of donees. Some legal scholars reckon that there are too many limits to the act of donation, such as those arising from the constraint of a solemn form and above all those related to forced heirship (‘successione necessaria’), according to which an indefeasible portion of the estate passes to the deceased’s next-of-kin. On the contrary, the author argues the reasons why these limits aim, on the one hand, to make the donor aware of the seriousness of the choice of undergoing a pauperization, and, on the other, to fulfil the constitutional protection of the nuclear family. Moreover, although forced heirs can use a specific legal action (called ‘azione di riduzione’) that permits them to restore the reserved portion, donations can be abated only after the testamentary dispositions exceeding the disposable portion have been reduced.
Renda, A., Obsolescenza del sistema donativo?, in De Paoli, D. P. M., Manfredi, M. G., Pavesi A, P. A. S., Tallacchini, T. M., Vendramini E, V. E. A. (ed.), Una filantropia nuova. Economia, diritto e filosofia per una societa digitale collaborativa, Libellula Edizioni, Tricase (LE) 2017: 143- 152 [http://hdl.handle.net/10807/106108]
Obsolescenza del sistema donativo?
Renda, Andrea
2017
Abstract
The essay deals with the phenomenon of ‘new philanthropy’ from a juridical point of view, wondering if Italian civil law that rules the contract of donation is able to reach a fair balance between the interests of donors and those of donees. Some legal scholars reckon that there are too many limits to the act of donation, such as those arising from the constraint of a solemn form and above all those related to forced heirship (‘successione necessaria’), according to which an indefeasible portion of the estate passes to the deceased’s next-of-kin. On the contrary, the author argues the reasons why these limits aim, on the one hand, to make the donor aware of the seriousness of the choice of undergoing a pauperization, and, on the other, to fulfil the constitutional protection of the nuclear family. Moreover, although forced heirs can use a specific legal action (called ‘azione di riduzione’) that permits them to restore the reserved portion, donations can be abated only after the testamentary dispositions exceeding the disposable portion have been reduced.
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