Short answer. Yes, if the debtor did not keep enough property to pay all debts he had when he made the donation. Article 1387 of the Civil Code creates a legal presumption that gratuitous transfers by a debtor are fraudulent when made without reserving sufficient assets to cover pre-existing obligations.
What the law says
All contracts by virtue of which the debtor alienates property by gratuitous title are presumed to have been entered into in fraud of creditors, when the donor did not reserve sufficient property to pay all debts contracted before the donation.
Civil Code, Article 1387 — When an Alienation Is Presumed to Defraud Creditors. Read the full provision →
The presumption of fraud for gratuitous transfers
Article 1387 of the Civil Code addresses creditor-protection against debtors who give away property. The rule is direct: all contracts by which a debtor alienates property by gratuitous title are presumed to have been entered into in fraud of creditors when the donor did not reserve sufficient property to pay all debts contracted before the donation. This is a legal presumption — the creditor does not have to prove fraudulent intent. It is enough to show that the donation was made and that the debtor lacked sufficient remaining assets to pay the debts that existed before the donation.
What triggers the presumption
Two facts trigger the presumption: first, the transfer was gratuitous — a donation, a gift, something given without equivalent value received in return. Second, after the transfer, the debtor did not retain sufficient property to pay all debts contracted before the donation. Both conditions must be present. If the debtor gave something away but still had ample assets to cover all existing debts, the presumption does not arise. The creditor must show that the debtor's remaining assets fell short of the obligations that preceded the donation.
Onerous transfers under judgment or attachment
Article 1387 also covers transfers that are not gratuitous. Even when a debtor transfers property for value — an onerous alienation — the transfer is presumed fraudulent if made by a person against whom a judgment has been rendered in any instance or a writ of attachment has been issued. The decision or attachment need not refer to the property alienated, and need not have been obtained by the party seeking the rescission. So a creditor who obtained a judgment in one proceeding may invoke the presumption against a transfer the debtor made to a third party, even if a different creditor obtained the judgment.
The remedy and proving fraud by other means
When an alienation is presumed or proved fraudulent, the remedy available to creditors is rescission — the contract may be set aside to the extent necessary to satisfy the creditor's claim. Article 1387 adds that even outside the specific presumptions it creates, the design to defraud creditors may be proved in any other manner recognized by the law of evidence. A creditor who cannot trigger the presumption may still succeed by establishing actual fraudulent intent through circumstantial evidence, timing of the transfer, the relationship between the debtor and the recipient, or other indicia of bad faith.