What Is a Libéralité?
A libéralité is defined by C. civ. Art. 893 as any act by which a person disposes, gratuitously, of all or part of their assets or rights in favour of another person. The definition requires two elements: a subjective element (the intention libérale — the donor's intention to benefit the recipient without expectation of return) and an objective element (an impoverishment of the donor matched by an enrichment of the recipient). French law recognises only two categories: inter vivos donations and testamentary legacies (legs).
Présents d'usage: outside the libéralité regime
Not every gratuitous transfer qualifies as a libéralité. A présent d'usage is a gift made on a recognised social or family occasion (a birthday, a wedding, the birth of a child) whose value is modest in proportion to the donor's wealth at the time it is made. Such gifts fall entirely outside the libéralité regime: not subject to rapport, not reducible, not revocable for ingratitude, and not subject to gift duty. Two conditions must both be met: the gift must mark a recognised occasion, and its value must be proportionate to the donor's means at the date of the gift. A gift of artwork worth 70,000 French francs made by a very wealthy father on his daughter's wedding has been held to be a présent d'usage, even though the works were later sold for 5.6 million francs (Cass. 1ère civ. 10-5-1995 n° 93-15.187). By contrast, sixteen cheques delivered monthly over sixteen months before the donor's death are incompatible with the occasional character of a présent d'usage and were held to be taxable manual gifts.
Consent of the Donor
The requirement of sound mind (insanité d'esprit)
C. civ. Art. 901 states that to make a libéralité, one must be of sound mind. Insanity of mind encompasses all mental conditions that have obscured the donor's intelligence or disordered their faculty of discernment at the time of the act. The burden of proof lies on the person challenging the act: they must show that the donor lacked mental capacity at the precise moment the donation was made or the will was signed. However, where the insanity was habitual at the time of the act, the burden reverses: it is then for the person relying on the validity of the gift to prove that it was made during an interval of lucidity (Cass. 1ère civ. 30-11-2004 n° 02-18.363). Proof may be by any means — intrinsic (content and coherence of the act) and extrinsic (medical evidence, witness statements). The invalidity for insanity of mind may overlap with the separate grounds for acts by protected adults (C. civ. Art. 414-1), even where the act complied with all procedural requirements of the applicable protection regime (Cass. 1ère civ. 20-10-2010 n° 09-13.635; Cass. 1ère civ. 15-1-2020 n° 18-26.683).
Defects of consent: fraud, duress and error
A libéralité is also voidable where the donor's consent was vitiated by fraud (dol), duress (violence) or error (erreur), provided the vice was determinative of the decision to give (C. civ. Art. 901 and 1130). Fraud is the most frequently invoked vice — it requires a course of conduct or a series of deceptions designed to obtain the donor's consent. Courts have annulled testaments where a beneficiary engineered a rupture between the testator and their only child (Cass. 1ère civ. 30-10-1985 n° 84-15.922) and where the progressive conditioning of an elderly person led to capture of the inheritance. Duress covers both physical and moral pressure, and extends to the exploitation of a state of dependency to obtain a manifestly disproportionate advantage (C. civ. Art. 1143). Error may relate to the identity or quality of the recipient, or to the motive without which the donor would not have given (C. civ. Art. 1134 and 1135, al. 2).
Sanctions and prescription
Insanity of mind and defects of consent result in the relative nullity of the act, which may be confirmed by the person protected. The action in nullity belongs to the donor and, after their death, only to their universal successors (Cass. 1ère civ. 4-11-2010 n° 09-68.276). The prescription period is five years, running from the date of the act for insanity of mind, from the date of discovery for fraud or error, and from the date the pressure ceased for duress (C. civ. Art. 2224 and 1144). Once prescribed, the heirs may still raise the nullity as a defence (exception de nullité), which is perpetual (C. civ. Art. 1185), provided they have not already begun to execute the gift (Cass. 1ère civ. 25-10-2017 n° 16-24.766).
A party to a libéralité who faces uncertainty about whether the nullity will be invoked may serve a formal written demand requiring the person entitled to invoke it to either confirm the act or bring a nullity claim within six months (C. civ. Art. 1183). Failure to act within that period results in the act being deemed confirmed. The procedure requires that the cause of nullity must have ceased by the time the demand is served.
Consent of the Recipient
Both donations and legacies require the consent of the recipient. For legacies, the beneficiary need not consent to the validity of the legacy, but must accept it for it to take effect — a legacy refused by the legatee lapses. The recipient must exist at the time the gift becomes effective. For donations, the recipient must exist at the time of the donation. For legacies, at the date of the testator's death. A child merely conceived (but not yet born) qualifies if subsequently born alive and viable (C. civ. Art. 906). Gifts by interposition of persons — where the named recipient is a front for a person incapable of receiving — are absolutely null (C. civ. Art. 911). The persons presumed to be interposed are the parents, children, descendants, and spouse of the incapable person.
Capacity to Give
Minors
A non-emancipated minor has an absolute incapacity (incapacité de jouissance) to make a donation: no representative can act in their place (C. civ. Art. 903). For testaments, the incapacity is graduated. A minor under 16 cannot make a will at all. A minor over 16 may dispose by will of up to half of what they could dispose of if of full age (C. civ. Art. 904). An emancipated minor has full capacity for both donations and wills (C. civ. Art. 413-6).
Protected adults: capacity to give
| Protection measure | Capacity to make a donation | Capacity to make a will |
|---|---|---|
| Mandat de protection future (activated) | Full capacity to donate alone | Full capacity to make a will alone |
| Habilitation familiale with representation | Requires prior court authorisation (juge des contentieux de la protection), and proof that the gift conforms to the person's wishes and protects their interests (Cass. 1ère civ. avis 15-12-2021 n° 21-70.022) | May make a will alone if capable of freely expressing their wishes at the time of drafting (strictly personal act) |
| Sauvegarde de justice | Full capacity to donate alone (C. civ. Art. 435) | Full capacity to make a will alone |
| Curatelle | May donate with the assistance of the curator (C. civ. Art. 470, al. 2). If the curator is the beneficiary, a curateur ad hoc must be appointed. | Full capacity to make a will alone (C. civ. Art. 470, al. 1) |
| Tutelle | Requires prior authorisation from the juge des contentieux de la protection (or family council); then assisted or represented by the tutor (C. civ. Art. 476, al. 1) | Absolutely prohibited unless authorised by the judge. If authorised, the person makes the will alone — no representation or assistance (C. civ. Art. 476, al. 2). The judge verifies only that the person can clearly express their wishes, not the content (Cass. 1ère civ. 8-3-2017 n° 16-10.340). |
Capacity to Receive
General rule: capacity is the rule, incapacity the exception
Any person — natural or legal — may in principle receive a libéralité (C. civ. Art. 902). Incapacities are exceptional and must be expressly provided for by law. Associations may receive dons manuels freely, but notarial donations and legacies are reserved for recognised categories of associations (those of public utility, denominational associations, qualifying associations of general interest).
Suspicion incapacities (Art. 909)
Three categories of person cannot receive a libéralité from a person they cared for:
- Healthcare professionals and pharmacy staff (doctors, nurses, pharmacists, and allied medical auxiliaries) who provided care to the deceased during the illness from which they died cannot benefit from donations or legacies made during that illness (C. civ. Art. 909, al. 1). The incapacity applies even where the illness had not yet been diagnosed at the time of the gift, provided it was in fact the illness from which the deceased later died (Cass. 1ère civ. 16-9-2020 n° 19-15.818).
- Court-appointed protection mandataries (mandataires judiciaires à la protection des majeurs) and the legal entities through which they act cannot receive any libéralité from persons in their care, regardless of when the gift was made (C. civ. Art. 909, al. 2). Family members serving as tutor, curator, or similar do not fall within this prohibition (Cass. 1ère civ. 17-10-2018 n° 16-24.331).
- Ministers of religion are subject to the same rules as healthcare professionals (C. civ. Art. 909, dernier al.).
These suspicion incapacities do not apply to universal libéralités between relatives within the fourth degree where the deceased left no direct-line heir, or to remuneration gifts in proportion to services rendered beyond professional duties.
For donations, capacity (both to give and to receive) is assessed at the time of the donation. For legacies, the testator's capacity is assessed at the time of drafting; the legatee's capacity is assessed at the date of the testator's death — with one exception: where the incapacity is a suspicion incapacity based on a presumption of captation, the beneficiary must have been capable at the time the testament was drawn up (Cass. 1ère civ. 23-3-2022 n° 20-17.663).
Lawful and Certain Content
Following the 2016 contract law reform, the conditions of validity previously expressed as objet and cause are now subsumed within the requirement of contenu licite et certain (C. civ. Art. 1128, 3°). Lawful content: the subject-matter must not derogate from public order through its stipulations or purpose (C. civ. Art. 1162). Courts have abandoned the earlier rule treating gifts in the context of adulterous relationships as illicit (Cass. ass. plén. 29-10-2004 n° 03-11.238). However, where the dominant and determining motive is itself unlawful, the gift is absolutely null. Certain content: the subject-matter must exist, be determined or determinable, and be possible (C. civ. Art. 1163). A donation may only cover present assets of the donor (C. civ. Art. 943); a gift of future property is void. A legacy may cover a future asset, provided it exists at the time of the testator's death.
A libéralité may be made subject to a charge (charge) — an obligation imposed on the recipient. Charges may favour the donor (e.g. repay an outstanding loan on the gifted property), a third party (e.g. pay a life annuity), or even the recipient themselves (e.g. pursue studies). A charge whose value equals or exceeds the value of the gifted asset converts the transaction into an onerous act rather than a libéralité.
Our guides cover the validity requirements for donations and testamentary arrangements, including gifts involving minors, protected adults, or complex family structures under French law.
Book a ConsultationThis article is provided for general informational purposes only and does not constitute legal advice. The rules described apply to libéralités governed by French law. Cross-border donations and succession arrangements may additionally be subject to EU Succession Regulation No. 650/2012 and bilateral tax treaties. Readers should consult a qualified French lawyer before making any donation or testamentary arrangement.
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Key Legal References
Definition of libéralité: any act by which a person disposes gratuitously of all or part of their assets in favour of another. Two forms only: inter vivos donations and testamentary legacies. Subjective element: intention libérale (intent to benefit without expectation of return). Objective element: impoverishment of donor + enrichment of recipient
Sound mind required for a libéralité. Insanité d’esprit: any mental condition that obscured the donor’s intelligence or disordered their faculty of discernment at the time of the act. Burden of proof on the challenger; reverses where habitual insanity established (challenger must then prove lucid interval). Proof by any means. Overlap with Art. 414-1 (protected adults) — an act may be annulled for insanity of mind even if it complied with all procedural requirements of the applicable protection regime
Capacity to receive a libéralité: any natural or legal person may in principle receive. Incapacities are exceptional and must be expressly provided for by law
Non-emancipated minor: absolute incapacity (incapacité de jouissance) to make a donation; no representative may act in their place
Minor over 16: may dispose by will of up to half of what they could dispose of if of full age
Recipient must exist at the time the gift becomes effective: for donations, at the time of the donation; for legacies, at the date of the testator’s death. A child merely conceived qualifies if subsequently born alive and viable
Suspicion incapacities: (1) Healthcare professionals and pharmacy staff who provided care to the deceased during the illness from which they died cannot benefit from donations or legacies made during that illness — incapacity applies even where illness not yet diagnosed at time of gift. (2) Court-appointed protection mandataries (mandataires judiciaires à la protection des majeurs) and legal entities through which they act cannot receive any libéralité from persons in their care — family members serving as tutor/curator not within this prohibition. (3) Ministers of religion: same rules as healthcare professionals. Exceptions: universal libéralités between relatives within 4th degree where no direct-line heir; remuneration gifts for services beyond professional duties
Interposition of persons: where the named recipient is a front for a person incapable of receiving, the gift is absolutely null. Persons presumed interposed: parents, children, descendants, and spouse of the incapable person
A donation may only cover present assets of the donor; a gift of future property is void. A legacy may cover a future asset provided it exists at the testator’s death
Lawful and certain content: subject-matter must not derogate from public order; must exist, be determined or determinable, and be possible. Motive of the gift generally irrelevant — courts have abandoned the rule treating gifts in adulterous relationships as illicit (Cass. ass. plén. 29-10-2004). Absolute nullity where dominant and determining motive is itself unlawful
Defects of consent: fraud (dol — systematic deceptions designed to obtain consent; may emanate from third party), duress (violence — physical or moral pressure; includes exploitation of state of dependency to obtain manifestly disproportionate advantage), error (erreur — identity or quality of recipient, or determinative motive). All result in relative nullity. Prescription: 5 years from act (insanité d’esprit), date of discovery (fraud/error), date pressure ceased (duress). Exception de nullité perpetual if not begun to execute
Protected adults — capacity to give and receive: Mandat de protection future (activated): full capacity to donate and make will alone. Habilitation familiale with representation: donation requires prior court authorisation; will may be made alone if capable of freely expressing wishes. Sauvegarde de justice: full capacity (Art. 435). Curatelle: may donate with curator’s assistance (Art. 470 al. 2); full capacity to make will alone (Art. 470 al. 1). Tutelle: donation requires prior court authorisation + tutor assistance/representation (Art. 476 al. 1); will absolutely prohibited unless authorised by judge; if authorised, person makes will alone — no representation (Art. 476 al. 2)
