Două probleme controversate în materia incapacităţii de dispunere prin liberalităţi
Two controversial issues regarding the incapacity to dispose of property by liberalities

Summary/Abstract: The article focuses on two problems: I. The initial validity of a donation is conditioned by the capacity of the donor/testator. When the disposer is an incapable, there is currently no consensus among Romanian authors regarding the nature of the incapacity (of use or exercise) nor regarding the sanction incurred (relative or absolute nullity). II. Romanian authors and judges has also long used the expression “natural incapacity” to designate the incapacity of the donor/testator who is of legal age but lacks discernment at the time of the disposition. The correctness of the expression is controversial in our specialized literature. This article begins by analyzing the legal framework of incapacity in matters of gifts, in order to then address the special problems of incapacity to dispose through such legal acts. The approach from the general to the specific is necessary, given the silence of Art. 988 Para. 1 of the Civil Code, which does not indicate neither the nature of the incapacity, nor its sanction. I critically examined the three opinions expressed by our authors and concluded that it is a question of incapacity of use, punishable by the relative nullity of the will. As for the expression of “natural incapacity”, arguments are brought up to show why I consider it inappropriate: it is stimulating the confusion between discernment and capacity, in matters of liberalities.

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