Liberality or ‘animus donandi’ as a defining element of gift

Abstract

Article 538 of the Brazilian Civil Code gives the impression that two are the defining elements of gift: the transfer of goods or advantages, and the liberality or animus donandi. Our objective will be to verify, by analyzing the different doctrinal views on the animus donandi, if it shall be considered a defining element of gift in Brazilian civil law. First we shall make a few considerations about the identification of contractual types in contemporary law, in order to critically analyze the animus donandi in two possibile views: subjective and objective. Next we shall present a view that preaches the irrelevance of animus donandi for the characterization of gift. Ultimately, we shall discuss the connection between liberality and economic interests.