The essence of the preliminary donation agreement is determined by the name “preliminary”. That is, preparation before the conclusion of the transaction, which will be the main one. This is a document according to which the parties must draw up the main contract. He, in turn, implies that property or property right will be transferred free of charge, or there will be an exemption from property liability in the future after some time. Especially many are interested in the nuances of the preliminary agreement on donating a share to a minor.
It is important to understand that the subject of this agreement is not the transfer of property that is intended as a gift, but the essence of the conclusion of the main gift agreement (it can be real or consensual).
Frequency of detention
Such a document in life is actually extremely rare. Nevertheless, there are times when they cannot write a gift certificate at the same time that the intention of the donor to present to a third party has appeared. In such situations, a preliminary document is concluded with respect to the future principal, which relates to the real deal. This Regulation, which is governed by its conclusion, is contained in Article 429 of the Civil Code.
Why is it worth concluding?
Possible causes may vary. In order for the transaction to take place for sure, it is better to sign a preliminary donation agreement, according to which the parties undertake to conclude the main donation later.
There are situations when such a document has to be executed, since the necessary papers have not been fully collected, but they are needed for the transfer of ownership of movable or immovable property that is donated.
There are even cases when the preliminary construction agreement indicates the object of construction in progress, despite the fact that legislation does not allow transactions with property that does not exist in kind.
Definition and side of giving
Donation is a gratuitous transfer of property or property law from the donor (one side) to the donee (the other side), or the voluntary removal of the other side from the obligation. According to the agreement, in the process of transferring the gift, a transaction is concluded instantly (real contract) or the terms are set forth in the contract soon (consensual contract). This also applies to questions about a preliminary contract for donating a minor a share of an apartment or other objects.
In both versions of the contract we are talking about a gratuitous transaction. This is the main feature of this nature of transactions, which does not provide for the existence of a counter obligation to the other side. Nevertheless, irrevocability does not mean that an unreasonable gift is being made. Reasons, of course, exist, but they are negotiated outside the scope of the contract.
Since the gift process is an agreement between two parties that are based on their mutual approval, it is understood that the donee gives his consent to accept the gift. Otherwise, such an agreement shall be declared invalid. Another important factor is that the donor wishes to bestow on that particular person.
A sample preliminary contract for the donation of a share of an apartment or other object is presented below.
The desire to irrevocably transfer the property or property right, or release the donee from the property obligation must be made in the proper form, as well as have a clear and expressed intention, in accordance with the law, in the future to a specific person.
When a gift transaction is made, then the donor consciously increases the property of the donee due to the fact that he reduces his. Such properties of the agreement do not have independent significance, but derive from the irrevocable nature of the transaction.
Legislative nuances
When drawing up a gift contract, at least two parties are involved. The main agreement is based on a preliminary gift agreement. Therefore, the parties according to one and the second contract must match. Many are interested in aspects of the design of a negotiated agreement. A sample of a preliminary contract for the donation of an apartment or other object is of interest to many.
On the side of the donor and the donee may appear legal entities and individuals, other subjects of civil law. Nevertheless, according to the legislation, not everyone is allowed to conclude such agreements, to give and accept gifts. Persons who are prohibited from conducting such transactions include incompetent citizens. Thus, an important factor in signing such agreements is that the parties must have legal capacity and legal capacity.
Promise and Preliminary Contract
Initially, it may seem that the preliminary contract of donation and the consensual implication are the same, but they differ. The main difference is that in the first version, the parties are obliged to conclude the main contract in the future, and the donee, if the donor suddenly refuses, has the right to demand its conclusion. A preliminary donation agreement for a share of an apartment or other object does not remove these nuances.
In turn, the consensual agreement, despite the fact that it contains a promise of gift in the near future, but it has already been concluded, and then, if the donor refuses his decision, then the donee may demand to give him the gift.
Contract form
The Civil Code of the Russian Federation envisages the execution of a preliminary contractual agreement, as well as a preliminary donation agreement in the same form. In situations where the form of the basic agreement is not established, then the preliminary is executed in writing. If the agreement form is not followed, it will be declared null and void.
According to the legislation of the Russian Federation, when transferring property on the basis of a gift, the subject of which is considered immovable property, state registration with the relevant authorities is required. This does not imply state registration of the preliminary donation agreement, since registration is not connected with the form for concluding this transaction.
What does the invalidity of the preliminary agreement entail?
It is important to know that if the parties decide in the future to certify a donation contract with a notary, they also need to certify a preliminary donation contract for a share of the apartment or other objects of interest. Although today there are no requirements for mandatory certification of an agreement by a notary.
Sometimes it happens that one of the parties does not want to conclude a basic agreement, trying to challenge in court the validity of the preliminary contract. Provided that the preliminary donation agreement of the apartment or other object is declared invalid, then, as a result, the main contract is also not concluded. Therefore, it is very important to carefully consider the form and content of the preliminary agreement.
A sample preliminary donation agreement is available in electronic form.
Features of the preliminary agreement
An important distinguishing feature of the preliminary contract is the conclusion in it of all the main conditions, which then will have to be reflected mainly.Essential conditions are those without which it is not possible to conclude a contract. This mainly relates to the subject of donation. It is a detailed and concrete spelling of it in the preliminary agreement that is mandatory, as well as basically. In addition, a characteristic feature is the indication of the timing of the conclusion of the main contract.
It is important to know that this agreement sets out the obligations of the parties with respect to each other. In situations where the main contract is not concluded within the deadlines established by law or the preliminary contract and at the same time one party does not send proposals to the other side to conclude, then the obligations of the two parties terminate.
Is it possible to terminate the preliminary contractual agreement?
There is a possibility of termination of the preliminary contract. Often the document spells out directly about the possibility of termination and its order. Otherwise, it will be necessary to find good reasons why a refusal to conclude a basic agreement will become possible. An automatically terminated contract is one in which the main one was not concluded until the time when the preliminary term expired.
It is a big mistake to assume that a preliminary gift contract is terminated with ease. In the conditions when one side changed its mind to conclude it, then the other party has the right to demand the conclusion of the main contract in a compulsory (judicial) order. Moreover, when the evading party tries to do so unreasonably, it compensates the other party for losses incurred due to the refusal to conclude the main agreement.
In case of disputes
It has already been mentioned that if the preliminary document is declared invalid, the main transaction is not subject to conclusion. As practice shows, there are situations when, after concluding the main agreement, it turned out that the preliminary contract was invalid or was not concluded at all for one reason or another.
Clarification of such circumstances in no way can affect the already concluded main contract, however, if disputes arise between the parties under the terms of the main contract, then this may be an occasion for a detailed study of the preliminary document.
We examined a sample of a preliminary donation agreement to a minor or other person.
Conclusion
Thus, a preliminary donation contract can be considered a document containing the obligations of the parties to conclude in the future the main agreement, which spells out the main conditions for its implementation. Donation refers to a transaction between two or more parties, under the terms of which a gratuitous transfer of property, namely property or property law, or release from property obligations is made.
The parties to such a transaction are usually the donor (s) on the one hand, as well as the donee (done) on the other hand. The preliminary agreement differs from the consensual agreement mainly in the subject of the agreement. Firstly, by the possible conclusion of a basic gift agreement in the future, and secondly, directly by the promise of gift in the future.
The form, content, as well as the actors should be spelled out equally in the preliminary agreement, and basically. In cases where the form of the main contract has not been established, then a preliminary agreement must be made in writing.
The main distinguishing features of the preliminary agreement are: the specified specific term for concluding the main agreement, the subject of donation and other important points that form the basis of such an agreement. A preliminary contract, which is drawn up with violations of form, content, and also without an exact indication of the specific subject of donation, is considered null and void.