Kilka uwag o odwołaniu darowizny

Abstract

The task of the article is the discussion of essential problems regarding revocation of a donation by a donor by reason of a flagrant ungratitude of a donee. The questions as to which the opinions of literature are concurrent were disregarded. The deliberations focus on the question of the results of revocation of the executed donation. Does the revocation cause the transfer of ownerships back onto the donor (a real effect) or oblige only the donee to the return (obligational effect)? The views of literature on that subject are divided. First, the author presents the evolution of judicature. After the initial hesitations, the decision of 7 judges of the bench in the Supreme Court of January 7, 1967, recognized that the revocation of a donation creates only the obligational duty, to return the object of the donation,, concerning real estate, in particular. The author studies the merits of the decision in a great detail as well as the position adopted by the doctrine. Many representatives of the doctrine accept the premises of the decision, but at the same time question some arguments quoted by the Supreme Court. There are also others who criticize the theses of the resolution. It can be neverthelles adopted that the position of judicature is settled in that matter. The author analyses other decisions proving that these questions have their weightform the legal and social point of view. Many discussions are raised by the issue whether the revocation of a donation is permissible as regards one of the spouse, if a given object had entered their joint estate.The judicature is of an opinion a flagrant ungratitude towards the donor. In that case the donated object does not enter the joint estate of the spouses. It becomes the object of co-ownership of both spouses in equal parts. The donor can claim that a share in that object be transferred onto him, if it was not possible then the claim would be for the return of the value. The author questions the position adopted by the judicature and quotes numerous counterarguments.