A donation, a donative promise, and revocation of a gift

18/12/2022
Autor/ka fotografie: Suzy Hazelwood:
Autor/ka fotografie: Suzy Hazelwood:

At the notion of gifting, most people will realize that they must have participated in this legal action many times in their lives, so there is little to surprise us about it. After all, at Christmas, we are regularly in the position of both the giver and the recipient, and several times a year there are birthdays or other occasions to give or receive a gift, so we can reliably fulfill both roles of this legal action. It's just that there couldn't be lawyers in the world who see it any other way... That is, a gift at Christmas is not actually a gift in a legal sense. In this article, we will look not only at the nature of this legal action, but also at the promise of a gift and the consequences of breaking it, and finally at the revocation of a gift.

"I give you the gift of sunshine, I give you the gift of heaven..."

In the legal sense of the word, a gift is a voluntary and gratuitous transfer of ownership of a thing. Even though only one party (the donor) performs in it, it is a bilateral legal act - there must be an acceptance of the gift on the part of the donee. If it is to be a legal transaction, the parties must intend to be legally bound, i.e. enter into a contractual relationship. In other words, a gift is not a gift if the transfer of ownership is subordinate to another contractual relationship or if the law does not provide for the creation of a contractual relationship in such a life situation. A donation is therefore not the performance of an existing obligation, such as the payment of alimony. The law does not consider the aforementioned customary gifts on Christmas or birthdays, or, for example, an invitation to dinner, to be the conclusion of a contract of gift - it is a performance of customary donation and parties' actions are meant to stay out of obligation.

What about sending a gift to a charity fundraising? Despite the confusing label, it is not a donation, as it is a situation regulated by a specific law. Donating an organ can be equally misleading, but as we explained in the introduction, a donation can transfer ownership of a thing in a legal sense, which an organ of the human body is not.

The transfer of the donation may take place at the same time as the conclusion of the contract of donation (popularly hand-to-hand); however, should the transfer take place later, the contract requires a written form. This applies even if the donated item is entered in a public register; without a written form, the donation contract does not otherwise arise.

"I promise to give to the knight who slays the dragon the hand of the princess and half the kingdom"

What, in the eyes of the law, is involved in a mere promise of a gift? A unilateral declaration (promise) will not be considered a gift unless a promise to make a gift does not in itself make the donor obliged to honor it. Caution - a gift (gift agreement) is a bilateral legal transaction.

However, a breach of promise is not entirely without consequence. In the event of non-fulfillment, the promisor may be obliged to compensate the promisee for the costs incurred in anticipation of the gift. For example, a horse is promised to be donated and the person who received the promise begins to prepare for the acquisition of the animal by renting a stable and purchasing feed and riding equipment. However, for some reason, the promise will be broken and the horse will not be donated - the person making the promise will be obliged to reimburse the costs.

Autor/ka fotografie: TheOther Kev
Autor/ka fotografie: TheOther Kev

However, if the "donee" responds to the promise by agreeing to accept the gift, even if in the future, this would already be a bilateral legal transaction and a gift contract would be concluded. Once the condition implied by the promise had been fulfilled, e.g. the mere passage of time or some other condition such as slaying the dragon, the donor would be obliged to honor the promise.

Revocation of the gift - for hardship and for ingratitude

The Civil Code provides for a special method of termination of the obligation under a gift contract, which is related to a life situation of special consideration.

The revocation of a gift for hardship is possible in situations where the donor is in need of help through no fault of his/her own. In this context, hardship means a situation in which the donor does not have the means to provide for the necessary maintenance of himself or the persons he is legally obliged to maintain. Necessary maintenance means the provision of the basic necessities for livelihood - food, clothing, medicine, and housing, all at a basic level. The right to withdraw the donation is further conditional on the donor's need not being solvable by other means.

The donor may choose to request the release of the gift or the payment of its normal cost - but this is limited to the number of funds not available to provide for his/her necessary maintenance. At the same time, the donor may avoid the obligation to return the gift by providing the necessary maintenance himself and directly.

Revocation of the gift for ingratitude is possible provided that the donee has intentionally or grossly negligently harmed the donor, which is a breach of good morals. The donee should avoid such conduct not only towards the donor but also towards persons close to the donor. Furthermore, the fact that the donor has not forgiven the donee for his conduct is a condition for the possibility of seeking revocation of the gift.

It is undisputed, then, that an example of such a wrong will normally be an act that could also be classified as a criminal or misdemeanor offense. A more complex situation arises in some other situations in life, for example, if a gift of land is made and the donee sells part of it soon afterward, the donor does not have a right to revoke the gift. Even if the act could be assessed as ungrateful, the donor has not harmed the donee as a gross breach of good morals. The assessment of whether the conduct of the donee justifies the withdrawal of the gift for ingratitude will always depend on an individual assessment of all the circumstances of the particular case.