Marie-Avril Roux Steinkühler
27 mai 20221 Min
Although this is a legal subtlety, the distinction between a gratuitous transfer and a donation can have very practical and unpleasant consequences. This was demonstrated by the Paris judicial court in a decision of February 2022: the reclassification of a gratuitous transfer as a donation can lead to the nullity of the deed and thus cancel the transfer. A donation is governed by Article 931 of the Civil Code, which makes the validity of an inter vivos donation conditional on its being recorded before a notary. In the case examined by the Paris court, the deed of gratuitous transfer was made under private signature, and since it corresponds to the very definition of a donation (see recital 11 of the decision), “the deed, which should have been made before a notary when it is clear that it was concluded under private signature, is null and void”.
Since the nullity arises from the fact that the deed was not concluded before a notary, one could say that it is enough to conclude all one's deeds before a notary! However, this can be an expensive solution and does not help to smooth the running of a company. Good drafting of the transfer contract may be enough to avoid it being reclassified as a donation. Ideally, the transfer contract should clearly state the consideration and intentions of the transferor: to disseminate a work more widely, to transmit the capacity to bring an infringement action, etc.