LA DONACIÓN DE BIENES INMUEBLES ENCUBIERTA BAJO LA FORMA DE UNA COMPRAVENTA OTORGADA EN ESCRITURA PÚBLICA: EL PROBLEMA DE LA SIMULACIÓN Y LA FORMA.

Abstract

This paper looks at whether a deed of sale of immovable property suffices to meet the requirements of form set for gifts in article 633 of the Civil Code. The example is a case of relative simulation, in which there is an apparent transaction (the sale) plus a concealed or disguised transaction (the gift). The topic is one that has been widely debated in doctrine and jurisprudence alike, yet there is no unanimous conclusion. The paper examines the positions established in case law through the Spanish Supreme Court's rulings of 11 January and 26 February 2007. These rulings consider (rightly, in the author's opinion) that such a deed of sale fails to satisfy the requirements of form for a gift of real property, because article 633 of the Civil Code requires that the desire to give and the acceptance of the gift must be recorded in a notarial deed, but not merely in any notary deed: The document must necessarily be a notarial deed of gift. Lastly, the paper looks at the case of disguised remunerative gifts. The Supreme Court rulings examined in the paper show that the thesis on the nullity of disguised gifts due to defects of form is also applied to disguised remunerative gifts.