It occupies a prominent place among the procedures aimed at transferring ownership of property, and also acts as one of the ways in which participants in civil law relations have a property right of donation, a concept, content, features of which will be discussed in detail in the article.
Currently, its role and practical significance are constantly increasing. More and more organizations and ordinary citizens are resorting to the process of donating property. However, often in a deed of gift, the obligations of the parties and their rights are vague. In the future, this leads to various violations of obligations, a feeling of insecurity on the part of legislation and the state arises. Often, a donation agreement (concept, elements, content - hereinafter) is used for personal and illegal purposes in order to hide property from the right of a third party, with its subsequent sale to an unsuspecting acquirer. All this suggests the need for a deeper and more complete consideration of this issue.
Gift in Roman Law
A deed of gift is one of the oldest in civil law. In the period of the Roman Republic (around the V-I centuries BC) this procedure was already recognized as one of the grounds on which the right to property arises. The legal history of this institute began somewhat later, in 550, and is related to the Tsintsiev law. The gift was regarded as payment for any favor or other gift, or, on the contrary, caused the person to be gifted to respond similarly.
At that time, the concept and content of the gift contract was somewhat different. The gift was not a gratuitous transaction, as in modern law. Giving, like a will, was under vigilant public control. Emperor Justinian established a very interesting rule, according to which the ungrateful behavior of the donee served as the basis for the cancellation of the transaction.
Since the first century, the lawyers of the Roman Empire have changed their minds. They began to regard gift as alienation of property free of charge. If the promise to give something was carried out in the form of a stipulation (oral contract), then it also had legal force. Gradually, the lawsuit received a special type of (informal) gift agreement. According to this agreement, one of the parties, called the donor, provided the other (donee) with any values with the aim of showing generosity.
Donation in domestic law
As is known, the first time source for creating a domestic source of law is the Russian truth. The drafters based on folk customs, which determined its content. The contract of gift and the principles of its preparation Russian truth does not contain.
The history of the establishment of this institution in domestic law follows from 1649. At this time, the Council Code appeared, which, in fact, is a continuation and generalization of the Codes that existed before. In the “Complete Collection of Laws of the Russian Empire”, published in 1830, donation is defined as the assignment by one person of his property right to another person without receiving anything in return.
The domestic legislation, in addition to the general rules in force in this case, also had features. There were several types of donations: allocation, donation, appointment of a dowry. No special requirements were presented to the person of the donor or donor.
In the law of pre-revolutionary Russia, donation was not considered as a contract, it was regarded as one of the grounds for acquiring property rights. At the same time, the need for the obligatory consent of the donee was not taken into account.
The concept of a gift contract
The thirty-second chapter of the Civil Code of the Russian Federation is devoted to the donation procedure. Article 572 of the legislation provides a comprehensive definition and discloses its content. A gift agreement implies a transfer or obligation to transfer one thing (the donated person) to the other party (the donated person) free of charge into the property or property right (to the third party or to itself) or releases or obliges in the future to release it from the property obligation to the third face, or in front of yourself.
The content of the gift agreement makes it clear that it is not a unilateral transaction and in any circumstances requires the consent of the donee to accept the agreed gift. Attempts to consider this institution on the other hand are erroneous. Donation, regarded as a one-way transaction, which is one of the ways of the creation of a right to property and at the same time does not give rise to any obligatory relations between the parties, does not find recognition in domestic law. However, at the same time, the contract is one-sided, because the donee has no obligations (the exception is such a variety as a donation). Thus, such a thing as a donation contract with life-long maintenance (dependent) is absent in civil law. Such obligations are characteristic of one of the varieties of rent. Also, as a gift, for example, can not be regarded as a refusal in favor of another person from the inheritance.
It is important to remember that the content and execution of the gift contract can be correlated practically as a cause and effect. When compiling a document, each sentence, word, wording matters. Consider the main aspects: the form of the contract, the parties and its subject.
Parties to a deed of gift
The names of the parties have already been indicated above, which distinguish the gift agreement from other agreements. The content of the contracting party in Article 572 of the Civil Code of the Russian Federation defines both the giver and the donee. They must be competent persons. According to Articles 26, 28 of the Civil Code of the Russian Federation, minors and minors also have the right to make an independent transaction aimed at obtaining benefits free of charge. In other words, they can be gifted persons. The exception is those cases when a transaction requires state registration or a notary certification. In addition, they can act as donors, but only in certain situations: when making medium-sized household transactions or disposing of property strictly defined by law.
Gift Agreement: Form
Article 574 of the Civil Code of the Russian Federation clearly and exhaustively defines situations in which a deed of gift can be drawn up in writing or orally. Failure to comply with the requirements specified in it makes the transaction void.
Oral gift can be made if the value of the gift is not more than three thousand rubles. All transactions related to the donation of movable property, the amount of which exceeds 3 thousand rubles, are recorded in writing, either in cases where the donor is a legal entity, or if the agreement contains a promise to make a gift in the future. The requirement also applies to immovable property. The gift contract in this case is subject to state registration.
If in the above situations the contract is concluded orally, then its value is void.
About the subject of the gift contract
Developing the theme of what should be the content of a gift agreement, it is worthwhile to dwell on one of its essential conditions - the subject. Most often in this capacity any ordinary things act.They are divided into two groups: gifts worth up to three thousand rubles. and low cost. Such gifts are not subject to the rules prohibiting the donation procedure, its cancellation or refusal to fulfill the concluded contract.
As the subject of donation, the property right of claim to a third party or to oneself may act. For example, a donor author transfers royalties to the publisher who published his work. In addition, the subject may be expressed in the form of the release of the donee by the donor from any obligation of a property nature to him or third parties.
It is important to remember that the content of the gift contract should reflect specific information about its subject. The promise of the donor in the future to donate all of his property or a separate part of it without an exact indication of the right or thing is recognized in accordance with the Civil Code of the Russian Federation as void.
The content and form of the gift agreement depend on the nature of the property that is being donated and the legal nature of the gift process. This underlies the classification below. In the subject literature, you can find information about two types of gift contracts: real and consensual.
Real contract
A real gift contract may be concluded both orally and in writing. The first option is not allowed when the subject of donation is real estate or a thing worth more than 3 thousand rubles. or alienated by a legal entity.
To conclude a real contract, the consent (agreement) of the parties is not enough. He enters into legal force only upon the transfer of things. It has a more complex legal structure.
Consensual Gift Agreement
The consensual form of the contract (promise of gift) may be concluded under a conditional or suspensive condition. In any case, it requires a written expression, as well as a clearly formulated intention of the person to donate something in the future. The consensual gift agreement must indicate the specific donee and the exact subject in the form of a right, any thing or release from duty.
This type of gift agreement is one-sided. It gives rise to the right of the donee to demand its fulfillment by the donor, which, in turn, entrusts him with the obligation to fulfill it on time. However, any rule always has exceptions. Sometimes the donee still has certain responsibilities:
- careful attitude to the presented thing, which is of great moral value to the donor (letters, manuscripts, diaries, etc.);
- use of the property donated by the donor for the purpose specified by him.
A gift agreement, like the predominant part of other transactions, may be concluded under the so-called suspensive condition. For example, the content of an apartment donation agreement may include a clause stating that property is to be transferred only after the donee reaches any socially useful result (marriage, graduation from an institute, school, coming of age, etc.).
In the consensual form of the contract, the person accepting the gift may refuse it at any time before its direct transfer, since he is not obliged to do so.
Gift giving up
So, suppose a deed of gift (concept, species, content - given above) is signed. Does the donee have the right to refuse the gift? Article 573 of the Civil Code of the Russian Federation will help to answer this question. According to this civil law norm, the donee has the full right to refuse to accept it at any time before the direct transfer of the gift to him. An oral contract will be declared terminated in this case. If a signed document has taken place, then a gift should also be refused in writing.In cases where the gift agreement has passed the state registration procedure, a similar stage should be and refusal from it.
The donor has the right to demand compensation from the person being done for the real damage that was caused by his refusal to accept the gift.
Refusal to fulfill the contract
The donor also has the right to refuse to execute the concluded agreement containing a promise to transfer to the donee a person in the future any thing, right or release from the obligation of the property plan (Article 577 of the Civil Code of the Russian Federation). This can be done, in particular, in those cases when, after the transaction has been completed, the marital or property status or health of the donor has changed, and so much so that performance in the new conditions of the contract will lead to a significant change in his standard of living.
However, if the donor refuses to execute the contract, it does not give grounds for the claimant to claim damages.
How does a donation contract relate to a lifetime maintenance (rent)?
The gift agreement, as already mentioned, is a gratuitous transaction, in other words, property obligations lie only on one of the parties - the donor. He is not entitled to any counter-compensation. The reasons for the transaction can be the most varied: gratitude, sympathy, etc. As soon as the clause on the reciprocal obligations of the donee appears (the transfer of some thing in return, money, the provision of services), you know that this is no longer a gift agreement. With lifelong maintenance, with dependency "in gratitude" for the transfer of property into ownership, this form of transaction has nothing to do.
Here, as they say, on the face, signs of an annuity contract (Article 583 of the Civil Code of the Russian Federation). This norm states that according to it one of the parties transfers the other property into ownership, and the second party, in turn, accepts obligations to periodically pay a specific amount of money or provide funds in a different form for maintenance.
An annuity contract is bilaterally binding, reimbursable, real. According to it, property can be alienated only in return for a systematic and guaranteed income and care. This is his fundamental difference from a deed of gift. With the lifelong maintenance of the donor (a sample agreement can be found on the network), it is not only the transfer of a certain sum of money or other representation. The parties should be in close interconnection and contact. That is, it is not enough just to give money, care of a person and psychological interaction with him is important. The main risk of the contract is connected with this. Rent does not have a specific amount due to the recipient of payments, since the term of the contract, and, consequently, the amount of reciprocal satisfaction, depends and is determined by the life of the renter or the person specified by him in the contract.
Summarizing the above, we conclude that a donation contract with a lifelong content of the donor in practice simply cannot exist. However, one often encounters another interesting wording, very similar at first glance to the previous one. There is such a kind of contract as a gift with the right of life. Let us dwell on it in more detail.
Life-giving gift
As mentioned above, complete alienation in relation to the gift of rights is what the gift contract implies. This has nothing to do with the lifelong maintenance of the donor (a sample agreement can be provided by lawyers and qualified lawyers). However, all citizens, without exception, donating immovable property (house, apartment) in which they live and are registered, have the opportunity to reserve the right to use it or further residence. It is logical that the first reaction to such a nuance is the question of the legality of the contract, which in theory should be free of charge.
On the one hand, the condition on the donor's residence is not a sign of retribution, since it does not carry anything new in relation to real estate at the time of its transfer. This can be regarded more as a defense of one’s own rights.
On the other hand, such a right of the donor limits the possibilities of the new owner of the property by order of him. For this reason, some courts declare such an agreement invalid.
Note that this type of transaction has its negative and positive sides, both for the donor and the donee. The first receives a lifetime right to live and use part of an apartment or house in the domestic plan for free. The gifted person receives a new home as a gift, but at the same time the old owner comes with him. In this regard, the process of selling or renting real estate can be very problematic.
This is the specificity of such a deed of gift. With a lifelong content, this form of transaction has little in common and, in a certain sense, is more profitable. The advantages of dependency include tax features. In the case of a gift contract, it will be necessary to pay a tax of 13%, with rent, on the contrary, it will be possible to receive a tax deduction.