Translational or obligational? The operativeness of donation in the Spanish civil Code

Abstract

Donation is a controversial act in Spanish Law, being dis- cussed whether its effectiveness is translational or obligational. Talking about translational efficiency means that the patrimonial attribution that the donor intends to make in favor of the donee is produced directly and immediately by the donation act, without intermediate obligation nor need of subsequent traditio. Speaking of obligational effectiveness assumes that this attribution will also occur by donation but mediately, when the donor, by means of a traditio act, gives fulfillment to the obligation that arises for him as the immediate con- sequence of the donation held. The issue does not have an unanimous opinion in our current doctrine and jurisprudence, nor did it historically, although the idea that prevails today is that the donation regulated in the Spanish civil Code is an act of immediate translational effectiveness. But, is it, really? And, if so, does this mean that in our current Law a person cannot assume an obligation in order to give something in favor of another person, by pure liberality? These are the two questions to which this essay aims to respond.