Donation agreement of the Civil Code of the Russian Federation: law on donation of real estate

Promise of donation: the essence and principles of drawing up a contract

Is it possible to receive an inheritance in exchange for specific obligations or services? Yes. Russian legislation provides for a similar option for inheriting property. What power does a promise of donation have and how to properly draw up the document - read the article.

An agreement is a document that reflects the will of the donor in the distant or near future to transfer his property to another person (not necessarily a relative), and is a preliminary agreement of intent.

It always indicates the deadline for the implementation of the intention and the conditions for its fulfillment. The document has its own characteristics.

It appeared in Russian legislation relatively recently, but has never gained popularity among clients of law firms. Until now, the deal is used very rarely. Although there are situations in the lives of ordinary people when they cannot do without it.

Relatives promise their nephew to buy an apartment as soon as he gets married, or parents decide to give housing to their daughter after graduation.

Commentary on Article 572 of the Civil Code of the Russian Federation

1. The legal regulation of the gift agreement in the Civil Code of the Russian Federation and in the Civil Code of 1964 differs significantly. In the latter, two articles (256 and 257) were devoted to donation; the contract was recognized as real and was considered concluded at the time of transfer of property. The commented article in paragraph 1 provides, in addition to the real one, also an agreement under which one party (the donor) undertakes to transfer the gift to the other party (the donee) in the future. In addition to things, the object of the contract may be property rights. A gift agreement also includes a release from a property obligation and a promise to release the other party from such an obligation - both in relation to the donor himself and in relation to a third party (see also Article 576 and the commentary thereto).

Thus, the moment of conclusion of the contract may not coincide with the transfer of ownership. Then it gives rise to an obligatory legal relationship, the content of which is the obligation of the donor to enrich the donee in the future by reducing his property.

2. A donation is always a contract, i.e. a bilateral transaction based on mutual agreement. It presupposes the consent of the donee to accept the property right offered to him. This feature distinguishes donation from debt forgiveness, which, in accordance with Art. 415 of the Civil Code refers to unilateral transactions.

Of course, the purpose of debt forgiveness may be a gift if it freely releases the other party, with its consent, from the obligation. But debt forgiveness is often not disinterested, but causally conditioned by reciprocal provision. It is then only a unilateral termination of a specific obligation.

3. The Civil Code does not recognize the possibility of donation in case of death (clause 3). The order for the transfer of property after death is formalized by a will, from which donation differs in that the property is transferred during the life of the donor, which means that the donor’s property is reduced, while the will does not affect his property rights. In addition, a will can be canceled and changed at any time, and a donation, as a rule, is irrevocable (see Article 578 and commentary thereto). A donation is a contract, and a will is a unilateral transaction. However, if a donation is made with the aim of depriving the heirs of their legal right to an obligatory share of the inheritance or without the purpose of transferring ownership of property, then, as with any imaginary or feigned transaction, the norms of Art. 170 GK. Inheritance by will is regulated in detail in part three of the Civil Code (Articles 1118 - 1140).

4. The parties to the agreement are the donor and the donee. The first voluntarily deprives himself of certain property, the second acquires this property. If the subject of the contract is a thing, then the donee acquires ownership of it.

When the parties agree on the transfer of a thing in the future or on the transfer of rights, or the donor’s renunciation of the right (releasing the donee from a property obligation), the donee acquires an obligatory claim against the donor. If the subject of the donation is a thing, but its transfer at the time of concluding the contract is impossible, it can be replaced by a promissory note to transfer the thing within a specified period.

Donation is a civil contract, so the donor and recipient must be legally capable. Transactions for incapacitated persons are carried out by their legal representatives. The exception is the norm of Art. 28 of the Civil Code, according to which minors, i.e. children from 6 to 14 years old can act as donees, since they have the right to independently enter into transactions aimed at receiving benefits free of charge and not requiring notarization or state registration.

Minors from 14 to 18 years of age have the right to independently enter into a gift agreement and act as a donor within the limits of earnings, scholarships and other income received by them, but they cannot dispose of things that belong to them by right of ownership. For these transactions they must obtain the consent of their legal representatives (Article 26 of the Civil Code).

For some persons, the law establishes prohibitions and limits on donation (see Articles 575, 576 and commentary thereto). The law does not limit the execution of a gift agreement between spouses.

Article 573. Refusal of the donee to accept the gift

1. The recipient has the right to refuse it at any time before the gift is transferred to him. In this case, the gift agreement is considered terminated.

2. If the gift agreement is concluded in writing, the refusal of the gift must also be made in writing. If the gift agreement is registered (clause 3 of Article 574), refusal to accept the gift is also subject to state registration.

3. If the gift agreement was concluded in writing, the donor has the right to demand from the donee compensation for real damage caused by refusal to accept the gift.

Contract of promise of gift: cancellative and suspensive conditions of the transaction and succession

The subject of a gift agreement can be things - movable and immovable, as well as various property rights that the donor has the right to dispose of (obligations of the donee). Items withdrawn from circulation cannot be donated. The legislator provided for various subjects of the gift agreement: transfer of property to the donee, transfer of property rights, release of the donee from property obligations both to the donor and to a third party by fulfilling this obligation, of course, with the consent of the creditor (Article 391 of the Civil Code). What is common to donated items is that the donee is enriched free of charge at the expense of the donor. Things that require permission (license) to possess and use may be the subject of an agreement if the donee receives such permission.

If the subject of the gift is an exemption from an obligation, it is necessary to first obtain the consent of the donee’s creditor to transfer this debt to the donor (Article 391 of the Civil Code).

According to paragraph 2 of the commented article, the subject of the donation must be clearly indicated in the agreement. A promise to give an unspecified thing (to free one from some debt) has no legal significance.

6. A characteristic feature of a gift agreement is its gratuitous nature. Unlike most other agreements, in a gift agreement the decisive role belongs to the motives and motivations that guided the donor. V.V. Vitryansky writes that an agreement can be qualified as a gift agreement only in cases where the interested parties prove the absence of any causal condition for the gratuitous assignment of a claim (Braginsky M.I., Vitryansky V.V. Contract law. Part two. M. , 2000. P. 346). The motives (feeling of gratitude to the recipient or other personal motives) do not matter. The imposition on the donee of certain obligations related to the use of the thing does not exclude gratuitousness. Sometimes donation is targeted, for example, when allocating a dowry to a bride.

In case of reciprocal obligations of the donee in relation to the donor - to transfer an item, to provide a service - the agreement is not recognized as a donation, but will be determined by the rules relating to the exchange agreement, household and construction contracts, or others, depending on the terms of the agreement.

On this issue, the courts make mistakes when they define the gratuitous transfer of property into the ownership or economic management of a counterparty as a donation. For example, under a construction contract, the Capital Construction Department of the Russian Ministry of Construction has undertaken to provide the contractor with 10% of the living space free of charge upon completion of the construction of a residential building - 4 apartments specified in the contract. The owner of the house was to become the Government of the Kabardino-Balkarian Republic.

This condition in the contract appeared, apparently, following the example of a previously existing order. According to the Resolution of the Council of Ministers of the USSR dated May 16, 1967 (SP USSR, 1967, No. 11, Art. 69), the customer transferred 10% of the commissioned residential area to the contractor not for ownership, but for occupancy. The resolution became invalid after the liquidation of the state property monopoly.

Under the new conditions, ownership of apartments can be transferred to the contractor as payment for construction work. After all, Art. Art. 424 and 709 of the Civil Code determine that the price in the contract is established by agreement of the parties. Therefore, when considering the contractor’s claim, the arbitration court and the appellate court recognized that the condition of the agreement on the transfer of apartments to the contractor is not a donation, but a form of payment for the work performed by the contractor, because Payment to the contractor for work in itself in the form of providing him with apartments in a building under construction does not violate the price clause in the contract.

And in other cases, the payment of promised rewards and other grants are not considered a donation if they are of a reciprocal nature for the obligations of the counterparty; Social assistance based on public legal norms of law or labor relations is not a gift.

A partial renunciation of property rights when concluding a settlement agreement or other procedural actions is not a gift. The purpose of such decisions is not the disinterested provision of property, but the achievement, as a result of a compromise, of a certain property result in one’s favor, and the norms of Ch. 32 about donation.

7. At the same time, it is permissible to conclude a gift agreement under a personal condition, which can be used as an incentive measure to stimulate the recipient to certain behavior (for example, successful completion of studies, quitting smoking, drugs), or depend on a certain circumstance (for example, a wedding) . Such conditions do not give rise to a property obligation of the donee to the donor, because then the gift agreement would lose its unilateral character. The significance of these conditions is that they are a necessary prerequisite for the donor’s obligations to come into force. The condition can be suspensive or annullable (Article 157 of the Civil Code). If the condition is illegal, the gift deed is also invalid.

Promise of donation: the essence and principles of drawing up a contract

It always indicates the deadline for the implementation of the intention and the conditions for its fulfillment. The document has its own characteristics.

Relatives promise their nephew to buy an apartment as soon as he gets married, or parents decide to give housing to their daughter after graduation. Such reasons are the most common when concluding contracts. The document comes into force if the condition of suspension is met. In its meaning, the promise of a gift is very similar to a real gift, only the promise does not imply a procedure for the immediate transfer of property. That is, the giver always has the opportunity to change his mind about fulfilling his promise for objective reasons.

The contract is based on the fact that both parties intend to complete this transaction in the future - this means that after a certain time the owner of the thing wants to give it to another person. The transfer of the object of donation occurs by the good will of the owner of the thing to transfer it to another person. Based on the fact that the donor does not receive any benefit from the transaction, it can only be concluded with his consent.

The deed of gift, based on Article 32 of the Civil Code of the Russian Federation, is possible real and consensual. Real implies the transfer of a gift at the time of signing the contract, consensual - after some time, that is, this is the so-called contract of promise of gift. To conclude it, it is necessary to know all the conditions of present reality so that the transaction is valid and cannot be challenged in court in the future.

These conditions are:

The composition of the participants in the transaction - since it is bilateral, there must be two of them: the donor and the donee. They can be individuals and legal entities and act independently or through their representatives. Incapacitated persons and minors do not have the right to be donors. The donees cannot be civil servants;
The gratuitous transfer of a gift is a mandatory condition of the document;
The presence of a clear intention of the donor to commit the act of donating a thing in the future to another person, or the right or release of him from obligations under property obligations;
Prescribed individual distinctive features of the object of donation;
Fixing the transaction in a simple accessible written form. Failure to keep a promise does not entail any legal liability for the parties.

The time for concluding a contract of promise of gift is the moment of its signing by both parties, and not the moment of transfer of the gift from hand to hand.

An agreement of intent to donate indicates any interest between the parties to the agreement for third parties, therefore, legally, the transaction deserves attention and requires execution in writing.

The contract of promise of gift has legal force if it is concluded in accordance with all the rules:

Preparation in writing;
A clear and clearly expressed intention of the donor to transfer a thing or property for use free of charge in a certain future;
Indication of the specific person to whom the specified item, property or right is intended as a gift;
The obligation of the donor to transfer ownership of a thing or real estate to the donee;
Belonging to state registration when appearing in a real estate transaction. Mandatory notarization is not required for the document to come into force.

The most important advantage of the document is that the recipient will receive his things or real estate as a gift or free of charge even after the death of the donor. By law, the donor's responsibilities pass on to his successors after his death, unless otherwise specified in the agreement.

In this aspect, the document is beneficial for certain categories of the population.

Invalid

In addition to the ban on deeds of gift from incapacitated and minor citizens, as well as gifts to civil servants and employees of educational and health institutions, there are several other cases in which a deed of gift may be invalidated:

the donation procedure is not free of charge, and there is a reciprocal transfer from the donee to the donor of any rights or property;
the contract does not contain a description of specific property: the promise to donate everything will also be considered invalid;
the donor promises to transfer the gift in the future and does not confirm the promise in writing;
a deed of gift cannot be an analogue of a will.

Also, such an agreement is considered invalid when there are errors in it.