Court of Cassation Ruling on Manual Gift and Power of Attorney

Extract

[...] In this case, it is indeed a transfer from the account of one person (the donor, Mr. to the account of another person (the donee, Mrs. Y). We can therefore rightly think that the Court of Cassation, in view of its jurisprudence as a whole, considered that there was indeed a real tradition. However, as it specifies, this transfer was not sufficient since the dispossession was revocable. The elements stated in the principle are therefore cumulative without any hierarchy of importance. So even if there was a tradition, the revocable dispossession prevents the qualification. [...]

[...] According to its principle, the Court of Cassation reminds us that this dispossession must be definitive and irreparable. This jurisprudential reasoning is explained as follows. Although the manual gift is a particular donation at its jurisprudential origins (and not textually provided for by the law), it must respect the same conditions as for other donations made between living persons that the Civil Code provides for. This requirement had already been provided for by other jurisprudences, notably a decision of the first civil chamber rendered in 1960, but also in 1996 (Civ. [...]

[...] The consequence being that Mr. X can recover the amount paid since the qualification of gift was not retained by the judges of cassation. [...]

[...] In fact, in the dispositif of the ruling's response, it is well specified the transfer 'on which the debtor had a power of attorney'. We can deduce that without this factual element, the solution would have been different. But in this case, the power of attorney allows Monsieur X to maintain control over the amount that he had transferred. However, when we delve into the motivation of the Paris Court of Appeal, which had previously ruled on the same dispute, it seems less simple to acquiesce to the cassation. [...]

[...] In other words, the Court of Cassation allows the recognition of the manual gift to be maintained as an exception to the formal rules of donations between living persons. However, Article 931 of the Civil Code is among the articles targeted by the judgment. It is therefore regrettable that the judgment does not explicitly articulate its assessment with the provisions of this article, although it appears to be contradictory at first glance. Indeed (and as a reminder), Article 931 of the Civil Code states that 'All acts involving gifts between living persons shall be executed before notaries, in the ordinary form of contracts; and a record thereof shall be kept, on pain of nullity.' In the case of a so-called 'manual' gift, this article thus appears to be set aside by the judges. [...]