Intention and inter vivos gifts

Thu 16 May 2019, Philippe Ropenga

An artist gave paintings to an incorporated association and made clear that they could not be resold and that they could only be used for non-commercial purposes and exhibitions. As it sometimes happens with artwork, valuable pieces of art end in the hands of people who would normally not have touched them. The paintings were seized in the house of the head of the association because he, as a private individual, was insolvent. The head of the association did not oppose to the seizure. The artist's widow discovered later that one of her husband's paintings was about to go under the hammer. She applied for an order to be issued in order to seize it along with other paintings that were given by her husband to the association and started proceedings i.a. against the donee and the head of the association. She claimed that the donation had to be revoked since the gift had been made on condition that the donee would not resell the property.¹ Successions involving pieces of art require to know a bit of intellectual property law. We will have to look at the spiritual element of this gift as well as at its material reality (1) This will allow us to cast see conditional gifts from a different perspective (2).

1 The spirit and the thing

Let us look at the spirit of the gift (1.1) before considering the thing that has been given by the artist (1.2).

1.1 The spirit

When a mind creates something, the result of the creation process bears the influence of the creator's mind. The influence of the mind gives its originality and justifies its protection by intellectual property law. The thing has been created in a certain spirit. French law protects the spirit of the thing and recognises a moral right to act to defend the spirit of the work after the death of its creator. Article L. 121-1, §1 of the French intellectual property code provides that : An author shall enjoy the right to respect for his name, his authorship and his work.² Article L. 121-2, §2 of the said code provides that:

After his death, the right to disclose his posthumous works shall be exercised during their lifetime by the executor or executors designated by the author. If there are none, or after their death, and unless the author has willed otherwise, this right shall be exercised in the following order: by the descendants, by the spouse against whom there exists no final judgment of separation and who has not remarried, by the heirs other than descendants, who inherit all or part of the estate and by the universal legatees or donees of the totality of the future assets.

Here, as far as facts that are essential to understand the reasoning of the Cour de cassation are concerned³, the widow holds the legal title to the paintings while the children of the artist can exercise the moral right according to his will. The window asked for the donation to be revoked arguing that the condition had been breached. The Court of Appeal decided that the prohibition of resale and that of commercial use were questions regarding moral right. It thus rejected the widow's claim by deciding that she had no right to bring it. Article 31 of the French civil procedure code states that :

The right of action is available to all those who have a legitimate interest in the success or dismissal of a claim, without prejudice to those cases where the law confers the right of action solely upon persons whom it authorises to raise or oppose a claim, or to defend a particular interest.

If one considers prohibition of resale only as an issue of moral right, the widow cannot make any claim regarding it since the artist has not given her the moral right. She challenged this decision and argued that she was entitled to have the donation revoked.

The widow relied on the given thing rather than on the spirit of the gift.

1.2 The thing

Article 953 of the French civil code determines the reasons why an inter vivos gift can be revoked:

A donation inter vivos may be revoked only on account of the non-performance of the conditions under which it was made, on account of ingratitude, and on account of the occurrence of the birth of children.

There is an issue with the breach of the condition of non-resale in this case.

Article 954 of the said codes states that In the case of revocation on account of non-performance of the conditions, the assets shall revert to the hands of the donor free of all charges and hypothecs created by the donee; and the donor shall have the same rights against third party detainers of the immovables donated as he would have against the donee himself.

One can see that restitution has a physical dimension. The Cour de cassation, i.e., the supreme court that deals with civil, commercial, and criminal cases had to decide whether the breach of the condition of non-resale was a matter of moral right or a matter of restitution as stated in article 954. It has noted that the widow's claim concerned tangible goods and that its purpose was restitution. The cour de cassation has decided that the Court of Appeal has violated articles 953 and 954 of the French civil code. As one can see, legal technique matters: the condition of non-resale undoubtedly has something to do with the spirit of the gift. Nevertheless, the Cour de cassation has relied on provisions regarding property law because of the nature of the thing and that of the right, i.e., the legal title, that were at stake.

It has been seen that artwork could be problematic when it combined a physical item with this spirit of its creator. This case shows that condition can be used to preserve the intention of an artist. Let us broaden the topic to see in what sense conditional gifts may perpetuate someone's intention after one's death.

2 Conditional gifts and intention

This case shows that conditional gifts can effectively protect the donor's intention after his death. Nevertheless, this statutory protection is limited (2.1) and relies on extensive judicial support (2.2).

2.1 Limited statutory protection

The outcome of this case is satisfactory because it is simple. There is a physical item that has ended in hands that were not supposed to touch it. The person who held the legal title asked the court to help him to have it back. The Cour de cassation agreed. it does not mean that a similar outcome can be reached with items that are not tangible or when the violation of the condition is less clear. It has been seen in a previous post that thanks to the equitable tradition, Anglo-Saxons could more easily determine whether a gift obliged the donor to support the donee beyond a single gift.⁴ Equity gives the lawyer the ability to address the issue of a duty to do something for someone. This equitable specificity requires to look at someone else than the donor or the settlor in case of a trust. This gives a greater freedom to the Anglo-saxon practitioner than to the French one. The latter can only consider whether the deceased has tried to impose a control beyond grave.

Extensive judicial support to intention has also contributed to this decision.

2.2 extensive judicial support

The condition of non-resale had something to do with the spirit of the gift. Peaces of art were given by the artist to foster artistic creation. The Cour de cassation has used property law to preserve the intention of the artist. It has been seen that some recent French cases paid a greater attention to intention in the context of trust and estates, e.g., in incapacity matters.⁵. Each legal tradition adresses similar issues differently, as it has been seen in cases involving will drafting⁶, and that attention paid to intention in French law suggests that a new trend may be emerging.

It has been seen that conditional gifts could be used to preserve the donor's intervention although they offered a relatively limited protection and required judicial support.

In brief, intention regarding what may happen after one's death is a delicate issue that requires technical skill and attention to the person of the deceased.

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