March 03, 2025
A Gift Agreement or Gift Agreement is a contract by which the donor transfers property to the donee free of charge. The subject of the donation may be present and future things and transferable property rights. A gift is not considered to be a waiver of an inheritance or a right before it has been acquired.
Conclusion of a gift agreement
A gift agreement is usually concluded in writing, but it can also be concluded orally. A written form is mandatory for the donation of real estate. If the contract does not result in the actual handover of the thing, i.e. the transfer of possession of the thing, it must be certified by a notary public. Thus, an oral gift agreement is not valid if there is no real surrender of the thing.
Form of the gift contract
The form of the gift agreement depends on the subject of the donation. For real estate, a written form and certification by a notary public are mandatory. For movable property, an oral contract is valid only upon surrender of the thing. In the case of a donation without the actual handover of the thing, the gift agreement must be concluded in the form of a notarial deed or a certified (solemnized) private document.
Liability for defects
The donor is not responsible for material and legal defects of the gift, unless he deliberately withheld them from the donee. In case of silence, the donor is obliged to compensate for the damage.
Types of donation contracts
There are different types of gift agreements:
- Donation with a levy: a gift agreement may impose a levy on the donee to perform or refrain from a certain action for the benefit of the donor, a third party, in the public or in his own interest;
- Reward gifting: a gift as a reward for a certain behaviour in the name of a reward, recognition or some merit;
- Reciprocal donation: both parties give to each other, and the gift exists only with regard to the greater value of the gift;
- Mixed gifting: donation with a specific consideration.
- Donation in the event of death: a donation that takes effect after the death of the donor.
Cancellation and revocation of donations
The donor may withdraw from the contract before the due date of the obligation to perform the obligation if, after the conclusion of the gift agreement, his or her financial situation deteriorates, and he or she no longer has the means to support him/her, nor is there a person who is legally obliged to support him/her.
Revocation due to impoverishment of donors
The donor may revoke the donation if, after the fulfillment of the contract, he becomes so impoverished that he no longer has the means for his necessary maintenance, and he does not have a person who is legally obliged to support him, and demand the return of work. The conditions for revocation are:
- The gift or its value is still in the possession of the recipient.
- the donee is not in need of his or her maintenance,
- the donor did not intentionally or grossly negligently put himself in need,
- 10 years have not elapsed for real estate, or 5 years for movable property since the gift was handed over 2.
The donee is not obliged to return the gift if he provides the donor with the funds he lacks for maintenance within the limits of justified needs.
Recall for ingratitude
The donor may also revoke the donation due to the gross ingratitude of the donee. Gross ingratitude is considered to be:
- committing a criminal offence of the donee against the donor or a member of his/her immediate family,
- A serious breach of a statutory duty towards the donor or a member of his/her immediate family.
Revocation due to ingratitude may also be declared by the heir of the donor if the donee intentionally killed the donor or prevented him from revoking the donation. The donation is revoked by a written statement addressed to the donee, with a notarized signature. The deadline for revocation is one year from the date of knowledge of the reason for the revocation. In the event of a dispute about the reasons and the time limit for revocation, a lawsuit must be filed.
If the prerequisites for revocation are met, the donee is obliged to return the gift or its value according to the rules on unjust enrichment. It is important to note that the waiver of the right of revocation due to gross ingratitude is considered null and void.
Conclusion
A gift agreement is a complex legal institute that requires careful consideration of all aspects before concluding it. Professional legal aid is often necessary for the proper drafting and implementation of contracts. If you need legal assistance or a lawyer, please contact us at:
