How the ban on donations of future assets works

In our legal system, a donation is traditionally considered an act of particular importance, not only financially but also personally. Precisely for this reason, the legislator has established a rigorous regulation, aimed at ensuring the donor's awareness and preventing reckless or excessively uncertain acts of generosity.

Article 771 of the Civil Code establishes that "a donation cannot include future assets," specifying that any act by which the donor undertakes to transfer assets not yet existing in his estate is null and void.

The law has two fundamental objectives: to protect the donor from uncertain or excessive financial commitments and to ensure certainty and timeliness of the deed of gift.

It is important to distinguish between future assets in the strict sense and assets not yet in the donor's estate. The first category includes, for example, unripened fruits or assets that will come into existence at a later date (such as a property under construction). In such cases, the donation is clearly prohibited.

A more delicate issue is the case of assets that already exist but are not yet owned by the donor, as in the case of assets that the donor plans to purchase in the future. Even in this situation, case law firmly holds the prohibition to be applicable, since what matters is not the material existence of the asset, but rather its current ownership of the donor's estate.

The severity of the prohibition has, over time, raised the issue of its relationship with indirect donations, such as the payment of the price of an asset registered to a third party, the waiver of a credit, or the stipulation of a contract in favor of third parties.

Indirect donations, while producing an effect of gratuitous enrichment, are not subject to the public deed form required for direct donations and, above all, do not automatically fall under the prohibition set forth in art. 771 of the Civil Code.

For example, the payment of future installments of a mortgage taken out for the purchase of a property registered to the beneficiary does not constitute a donation of future assets, but rather a series of current patrimonial attributions, each of which is valid at the time it is made.

The prohibition on the donation of future assets represents a fundamental safeguard for the protection of the donor and the certainty of legal transactions. At the same time, indirect donations offer flexibility that, if properly utilized, allows for legitimate patrimonial attributions without violating the law.

When it comes to donations, legal planning must proceed with caution, taking into account not only the form of the deeds, but also their substance and the specific purposes pursued. Relying on professionals like those at Agenzia delle Successioni can be the right solution.