Among transactions stipulated by law, a special place is given to gift. It is regulated by Art. 572 of the Civil Code of the Russian Federation . Consider the norm in detail.
Transaction content
As established by Art. 572 of the Civil Code of the Russian Federation, a donation agreement provides that one participant (donor) accepts an obligation to transfer or gives the other party ownership of a thing or property right (property claim against himself or another entity) or relieves (promises to relieve) it of his obligation to himself or a third party .
If there is a counter-provision of an object, right or obligation, the transaction is not considered a gift. As established by paragraph 1 of Art. 572 of the Civil Code of the Russian Federation , the rules enshrined in the second paragraph of Article 170 of the Code are applicable to such an agreement.
Legal requirements
The gift promise provided for in paragraph 1 of Art. 572 of the Civil Code of the Russian Federation , is considered an agreement and imposes obligations on the donor, if it is done in the proper form. At the same time, it should contain a clear intention to grant in the future a thing or the right to a specific subject or to release it from a certain obligation. The provisions of Art. 572, 574 of the Civil Code of the Russian Federation .
A promise to give back the property or part of it without specifying a specific subject (things, duties, rights) is considered null and void. This rule is enshrined in paragraph 2 of Art. 572 of the Civil Code of the Russian Federation .
Nuance
The contract, according to which the subject of the transaction is transferred to the donee after the death of the donor, is considered null and void. Inheritance rules should apply to such agreements.
Art. 572 of the Civil Code of the Russian Federation with comments
Normative regulation of the transaction in the current and existing (in 1964) Code has significant differences.
In the previous Civil Code, donations were referred to in the norms 256, 257. The agreement was considered real and was recognized as concluded at the time of the provision of the property.
Art. 572 of the Civil Code of the Russian Federation , in addition to the actual transfer of the subject, allows the provision of a thing (right) to the other party in the future. Moreover, a gift contract normally refers to exemption expected in the future, including from property obligations both to the donor and to an external entity.
The moment of execution of the contract may not coincide with the transfer of ownership. In this case, it generates a legal relationship. They suggest that the donor will enrich the donee in the future by reducing his property.
Unlike debt forgiveness
The transaction provided for in Art. 572 of the Civil Code , always double-sided. In other words, it involves mutual agreement of the parties. This feature distinguishes gift from forgiveness of duty. It, in turn, is considered a unilateral agreement.
Of course, the purpose of forgiving the obligation may consist in giving, if the party releases the second participant from the debt by his actions with his consent. However, in practice, it is often not disinterested, but is determined by a counter provision. In this case, forgiveness acts as a unilateral termination of the obligation.
Inheritance Law
Art. 572 of the Civil Code does not allow donation in case of death. An order for the provision of property in such situations is executed by will.
When donating, the provision of a thing, rights or release from an obligation occurs during the life of the owner. Accordingly, his property is reduced. The will, in turn, in no way affects the property rights of the owner.
The contents of the will can be adjusted or even canceled without any restrictions. The gift contract is usually irrevocable.
If the purpose of the gift is to deprive the successors of their mandatory share provided for by law, or the transaction does not imply a subsequent grant of ownership, then the provisions of Article 179 of the Code apply to it, as with any sham or imaginary transaction.
Inheritance is regulated by the provisions of Articles 1118-1140 of the Civil Code.
Subject Features
The parties to the contract are the donee and the donor. The latter, at his own request, deprives himself of property, the second, accordingly, receives it. If the subject of the transaction is a thing, then the second party receives ownership of it.
If the parties to the transaction agree to grant the thing, transfer rights or release the donee from the obligation in the future, the latter receives a binding demand. If it is not possible to transfer the thing at the conclusion of the contract, the parties have the right to replace it with a debt obligation to provide property within the agreed period.
Legal capacity
It is a prerequisite for concluding a contract. For legally incapable entities, the transaction is concluded by legal representatives.
However, there is an exception to the rule. It is provided for in Article 28 of the Civil Code. As this norm establishes, children 6-14 years old can make transactions that do not require notarization / state registration, aimed at obtaining benefits free of charge.
Citizens of 14-18 years old can participate in the gift contract on their own behalf. They have the right to act as a donor within the framework of earnings, scholarships or other income. However, the law does not provide for them the ability to dispose of their property. For transactions with property, the consent of their legal representatives is necessary.
The legislation provides for limits and prohibitions on gift giving (Articles 575, 576 of the Code). At the same time, the norms do not establish restrictions for the transaction between spouses.
Subject of the contract
They are:
- Things (immovable, movable).
- Property rights that a person may dispose of.
You can not give things limited or withdrawn from circulation.
A common feature of items is that the second side is enriched free of charge at the expense of the first.
Items that are owned by special permission (license) can be donated if the donee receives the appropriate document.
If the subject of the contract is exemption from duty, you must obtain consent from the creditor to transfer the debt.
As indicated in paragraph 2 of the analyzed norm, the parties must name a specific thing, right or obligation in the contract. The promise to provide an indefinite object or to release from any obligation has no legal significance.
Gratuitousness
It is an integral element of the contract. When giving, the motivations and motives of the donor are of decisive importance.
According to a number of experts, the agreement can be regarded as a gift if the parties prove the absence of causation of gratuitousness. In this case, the reasons for the donor's actions (gratitude, etc.) do not matter.
Gratuitousness may be accompanied by assignment to the donee of certain duties relating to the proper use of the thing. In some cases, the gift is targeted (for example, a dowry to the bride).
Controversial moments of judicial practice
If there is a reciprocal obligation of the donee in relation to the donor, the contract is not considered a gift. The transaction in such cases is governed by the provisions relating to the exchange, contract (construction, household), depending on the content of the contract.
Courts quite often make mistakes when they define as donation the gratuitous provision of property in economic jurisdiction or property.
So, for example, under a work contract, the Capital Construction Department accepted the obligation to transfer free of charge 4 apartments indicated by the contract - 10% of the living space after the construction of the house is completed. The building was supposed to become the property of the regional government.
This condition was probably fixed in the agreement in the manner in force previously. On the basis of a resolution approved by the Council of Ministers in 1967, No. 11, the customer did not provide the contractor with property, but 10% of the living space for settlement. After the liquidation of the state property monopoly, the provisions of the document became invalid.
Under the new rules, the transfer of ownership of apartments to the contractor may be carried out at the expense of payment for completed construction work. 424 and 709 articles stipulate that the value in the contract is determined by agreement of the parties. In this regard, when considering the application of the contractor, the first and appeal authorities recognized that the condition of the transaction is not a gift. It is considered as a form of payment for the work performed, since in itself it is not a violation of the terms of the contract for the price.
Additionally
The payment of the promised reward, other grants of a counter nature for the performance of obligations by the counterparty is not recognized as a gift. Not regulated by 572 articles, and social assistance provided on the basis of public law or in the framework of labor relations.