Among the transactions provided for by legislation, a special place is taken by donation. It is regulated Art. 572 Civil Code of the Russian Federation. Let's consider the norm in detail.
As the Art. 572 Civil Code, a gift agreement provides that one participant (donor)accepts the obligation to transfer or give to another party in the ownership of a thing or property right (a property claim to himself or another subject) or releases (promises to release) her from the obligation to herself or a third party.
If there is a counter provision of an item, right or obligation, the transaction is not considered a gift. As the paragraph 1 of Art. 572 Civil Code of the Russian Federation, to this agreement rules applicable to the second paragraph of Article 170 of the Code are applicable.
The promise of gift provided for in paragraph 1 Art. 572 Civil Code of the Russian Federationis considered an agreement and entrusts to the donorobligations, if it is made in the proper form. In doing so, it must contain a clearly expressed intention to grant in future a thing or a right to a specific subject or to release it from a specific duty. To such situations, the provisions apply Art. 572, 574 of the Civil Code of the Russian Federation.
The promise to give the property or its part without specifying a specific object (things, duties, rights) is considered null and void. This rule is fixed paragraph 2 of Art. 572 Civil Code of the Russian Federation.
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. Rules for inheritance must be applied to such agreements.
The normative regulation of the transaction in the current and existing (in 1964) Code has significant differences.
In the previous Civil Code on the gift was stated in the norms 256, 257. The agreement was considered real and was recognized by the prisoner at the time of the provision of the property.
Art. 572 Civil Code of the Russian Federation, except for the actual transfer of the object, admitsthe provision of a thing (right) to the other party in the future. Moreover, the gift contract is normally the exemption expected in the future, including from the property obligation to both the donor and the outside subject.
The moment of execution of the agreement may not coincide withtransfer of property rights. In this case, it generates a legal relationship. They assume that the donor in the future will enrich the donee, reducing his property.
The transaction provided for Art. 572 Civil Code of the Russian Federation, always two-sided. In other words, it presupposes mutual consent of the parties. This sign distinguishes gift from forgiveness of duty. It, in turn, is considered a unilateral agreement.
Безусловно, цель прощения обязательства может to be a gift if the party by its actions releases the second participant from the debt with his consent. However, in practice it is often not unselfish, but is conditioned by counter provision. In this case, forgiveness acts as a unilateral termination of the obligation.
Art. 572 Civil Code of the Russian Federation does not allow a gift in case of death. An order for the provision of property in such situations is made out by a will.
When giving a gift of a thing, rights orrelease from the obligation occurs during the life of the owner. Accordingly, his property is reduced. The will, in its turn, is not reflected in any way on the proprietary rights of the owner.
The contents of the will can be adjusted or even canceled without any restrictions. The contract of donation, as a rule, is irretrievable.
If the purpose of the gift is to deprive the successors of theirrequired by law, or a transaction does not imply the subsequent granting of ownership, then provisions of Article 179 of the Code apply to it as to any false or imaginary transaction.
Inheritance is governed by the provisions of Articles 1118-1140 of the Civil Code.
Contract participants are the donee anddonor. The latter voluntarily deprives himself of property, the second, respectively, 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 onthe granting of a thing, the transfer of rights, or the release of the donee from the obligation in the future, the latter receives a binding demand If there is no possibility to transfer a thing when concluding a contract, the parties are entitled to replace it with a debt obligation to provide the property within a specified period.
It is a prerequisite for the conclusion of the contract. For incapable subjects the transaction is made by legal representatives.
However, there is an exception to the rule.It is provided for by 28 articles of the Civil Code. As this norm establishes, children of 6-14 years old can make transactions that do not require notarization / state registration and are aimed at obtaining benefits free of charge.
Citizens 14-18 years old can participate in the contractgiving on your own behalf. They have the right to act as a donor in the framework of earnings, scholarships or other income. However, the legislation does not provide for them the opportunity to dispose of their property. For transactions with property, the consent of their legal representatives is required.
The law provides for limits and prohibitions on making donations (Articles 575, 576 of the Code). In this case, the rules do not establish restrictions for transactions between spouses.
They are:
You can not donate 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.
Things that are owned by a special permit (license) can be donated if the donee receives the relevant document.
If the subject of the contract is exemption from the obligation, you should obtain from the lender consent to transfer the debt.
As indicated in paragraph 2 of the analyzed norm,the parties must name the specific thing, right or obligation in the contract. The promise to provide an unspecified object or release from any obligation of legal value does not matter.
It is an integral element of the contract. When giving, the motivations and motives of the donor are of decisive importance.
According to some experts, the agreement canregarded as a gift if the parties prove the absence of a causation of gratuitousness. At the same time, the reasons for the actions of the donor (gratitude, etc.) do not matter.
Donations may be accompanied byon the donee certain duties relating to the proper use of the thing. In some cases, the gift has a target character (for example, a dowry of the bride).
If there is a counter-obligation of the doneein relation to the donor, the contract is not 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.
The courts often make mistakes when they define as donations the gratuitous provision of property for economic management or property.
Так, к примеру, по договору подряда Управление capital construction has taken the obligation to donate 4 apartments specified by the contract - 10% of the living space after the completion of the construction of the house. The structure was to become the property of the regional government.
This condition was probably fixed inagreement in the manner previously in force. On the basis of a decree approved by the Council of Ministers in 1967, No. 11, the customer provided the contractor with not property, but 10% of living space for settlement. After the elimination of state property monopoly, the provisions of the document became invalid.
Under the new rules, the transfer of apartments to the contractor inproperty may be in the payment of completed construction work. 424 and 709 articles fix 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 the appellate instances recognized that the condition of the transaction is not a donation. It is considered as a form of payment for the work performed, since by itself it does not violate the terms of the contract on price.
The payment of the promised reward is not recognized as a gift,other grants of reciprocal nature for the fulfillment of obligations by the counterparty. 572 articles and social assistance provided on the basis of public law or in the framework of labor relations are not regulated.
