Donation agreement. Real and consensual deed of gift

Today, in Russian law, a gift agreement is a bilateral transaction. To conclude it, in addition to the desire to give something, you need the desire of the recipient to accept this gift.

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The concept and aspects of donation

According to Art. 572 of the Civil Code of the Russian Federation, by donation the legislator understands the agreement of the parties on the free unconditional transfer in favor of one of them of things belonging to the other party, the rights of claim, the fulfillment of its property obligations instead of the first, or a promise to perform the above actions in the future. In addition, there is a separate type of gift - donation (Article 582 of the Civil Code), the transfer of property for which is associated with the determination of its generally useful purpose. Let us draw attention to the impossibility of a counter-representation in this transaction - it will characterize it as compensated, which is why the agreement should be considered void.

The parties to these agreements are the donor (donor) - the person alienating the property benefit and the donee - the person receiving this benefit as a gift. It should be understood that most legal entities can act as parties to the donation, however, depending on their role in the transaction, certain requirements and exceptions apply to them.

For your information

Thus, the recipient can be any individual. or legal person, unless this is expressly prohibited by law. In the event of the absence or limitation of his legal capacity, the person acts as the donee through or with the permission of legal representatives (Art. Art., Civil Code). To participate in a transaction as a donor, the subject of law must have legal capacity and ownership of the gift.

Legislative prohibitions on participation in donations should also be highlighted. So, based on the above and based on paragraph 1 of Art. 575 of the Civil Code of the Russian Federation, in order to protect the rights of these subjects, participation as a donor (except for small household gifts ) is prohibited for incapacitated and minor persons , as well as their representatives.

In order to combat corruption, the legislator also established restrictions on participation in donation as a donee in relation to some professions. So, according to paragraphs 2 and 3 of Art. 575 of the Civil Code, recipients cannot be employees of medical, social and educational institutions, state and municipal employees .

To combat financial abuse in business activities, in accordance with clause 4 of Art. 575 of the Civil Code, the legislator prohibited donations in relations between commercially oriented organizations .

Procedure for registering an agreement

The donation of real estate involves the registration of an agreement, which confirms the fact of the transaction and the transfer of ownership rights to the donee.

According to the Civil Code of the Russian Federation, registration of a deed of gift is allowed only at the location of the real estate. This function is performed by the registration chamber, MFC or cadastral authority. Register the deal.

Registration of the agreement is carried out in the following order.

To formalize the agreement, the parties to the transaction must appear at the registration authority with the prepared agreement and sign it in front of the registrar. The recipient pays the state fee.

Next, the registrar is provided with a package of documents:

• at least three copies of the contract. One copy of the document remains with the registrar;
• passports of the donor and recipient;
• marriage certificate or certificate stating that the donor is not married;
• certificate of ownership of the donated item;
• consent of all property owners, certified by a lawyer, if the property is jointly acquired;
• an extract from the house register about the number of registered persons;
• a document confirming the absence of debt on property.

Having accepted the documents, the registrar provides a statement on the transfer of ownership rights to real estate by the donor to the donee, which is signed by both parties to the transaction.

Next, the registrar gives a receipt, which indicates the list of accepted documents and the date of readiness of the certificate of registration of ownership. On the marked date, the participants in the transaction must come to the registrar with a receipt and passport to receive documents.

After the transfer of rights is completed, the donee becomes the owner of the real estate.

Good to know! The main requirement of all types of gift agreements is proper execution. If there are any doubts about the correctness of the contract, you must seek the help of a lawyer. On behalf of the client, the lawyer fully accompanies the transaction, draws up a deed of gift and goes through all registration procedures, this will avoid many delays and receive ready-made property documents.

Form of gift agreement

The legal requirements established regarding the form of the gift agreement are enshrined in the provisions of Art. 574 Civil Code. Based on them, the above-mentioned real gift agreement in the vast majority of cases can be oral , which significantly simplifies the procedure for its completion. You need to understand that this is not the obligation of the parties to the transaction - if they wish, they can put the actual contract in writing. However, this article also establishes exceptions when such exposure is mandatory :

• Legal gift agreement by a person where the value of the gift exceeds 3 thousand rubles (clause 2 of Article 574 of the Civil Code). It is quite logical that with a lower value of the gift, the legislator allows the legal entity. persons verbal registration of donation. However, this conclusion is at odds with the provisions of Art. 161 of the Civil Code, which requires legal transactions to always be executed. persons in writing. In any case, violation of the requirements regarding the form of such an agreement entails its nullity.
• Real estate donation agreement . Despite the absence in the law of a direct indication of the need for written confirmation of such an agreement, it follows from the obligation to register the transfer of rights to real estate (Article 131 of the Civil Code). Thus, the procedure for such a transfer of rights requires the submission of a package of documents to the registration authority, which, according to paragraph 5 of Art. 18 Federal Law No. 122 dated July 21, 1997 must be done on paper, i.e. in writing.
• Contract of promise of donation (clause 2 of Article 574 of the Civil Code). Consensual, unlike a real gift agreement, must always be in writing. In addition, the text of such a document itself must contain an indication of a specific gift and the donor’s intention to transfer it to the recipient in the future. Failure to comply with these requirements makes such a gift agreement void.
• Donation agreement subject to notarization . The rules for notarization of contracts do not allow the performance of notarial acts with oral documents.

At the same time, we would like to remind you that none of the gift agreements require mandatory notarization - it is carried out solely at the request of the parties to the transaction.

Concept of a deal

One type of legal relationship between different individuals is a transaction involving a gift.
This operation means the gratuitous transfer of any property. It could be:

• amount of money;
• real estate;
• rights of claim.

At the legislative level, the concept and types of gift agreement are enshrined in the Civil Code of the Russian Federation, Art. No. 572, art. No. 582 Ch. No. 32, as well as other articles of this chapter.

According to this article, a transaction is recognized as the actions of legal entities and individuals. Their main focus is changing any rights or obligations during the agreement process.

The following main features of a transaction of this type are distinguished:

• the emergence of a legal relationship between the participants;
• narrow focus of the legal action being performed;
• legality;
• voluntariness.

Only if all of the above features are present, a legal action can be classified as a transaction. If it is committed by force or other illegal means, then this action is considered invalid.

Real

A real gift agreement is considered to be a legally correctly executed document of civil law type.

The basis for its recognition is the fact of transfer:

• things;
• amounts of money;
• any property.

An agreement of this type is considered valid only from the moment of transfer of the object appearing in the document.

Contract of promise of donation in the future (consensual)

The transaction in question has some distinctive features, as well as design nuances. This type of it is covered in detail in the legislation, or more precisely in Art. No. 572 of the Civil Code of the Russian Federation.

The main features of a consensual agreement are:

• when concluding a transaction, an obligation arises on the part of the donor, which consists in transferring ownership rights and releasing the donee from any obligations;
• the transaction of promise of a gift is concluded in writing;
• the text of the document must contain a clearly expressed intention to perform any gratuitous action in relation to the donee;
• Specific instructions are required:
  The donee.
• Gift names.
• Ownership rights.
• Responsibilities.

When a preliminary gift agreement is drawn up, it is imperative to remember that if the subject of the gift itself is not specifically defined, then the document has no legal force.

What can be given under a promise of gift agreement?

According to the DOD, you can donate any movable and immovable property:

• cars and other vehicles;
• money;
• shares in LLC;
• right to claim debt;
• shares, other securities;
• debt obligations (from the donee to the donor);
• real estate: houses, land, apartments, commercial premises, etc.;
• bank deposits.

Note! Houses are donated only with the land plots on which they are located. Alienation separately is unacceptable. If a person plans to donate a share in the authorized capital of an LLC, one must take into account the provisions of the company’s charter: in some cases, the consent of the remaining owners may be required.

What is the subject of a consensual agreement

According to paragraph 2 of Article 572 of the Civil Code, a consensual agreement is a transaction between two parties , on the basis of which the “donor” makes a promise to perform actions in favor of the “done” in terms of subsequently transferring property rights.

It is necessary to understand that indicating the date of fulfillment of obligations in this document is generally an additional guarantor and will help subsequently avoid procedural disputes between the parties.

Paragraph 2 of Article 574 clearly regulates that the form of conclusion of the main document must be written and not oral. First of all, this legislative norm is dictated by the fact that the fact of the donor’s promise has a fixed form and protects the rights of the donee, which confirms the validity of the intentions of the other party.

Important! In addition to written confirmation of the transaction, the article prescribes two more important factors - a specific indication of the subject of the gift and confirmation of the validity of the gift (capacity, majority and other facts confirming the legality of the agreement).

A deed of gift, which has the nature of consensuality, is a unilateral agreement confirming the obligations of the “donor” and giving the right to the “doneee” to demand the first fulfillment of his promises in accordance with the deadline specified in it, and if it is absent, it is necessary to follow the regulations of paragraph 2 of Article 314 of the Civil Code.

Features of the agreement

The nuances of this type of transaction include the following:

• the transaction must be free of charge;
• the contract is considered valid only from the moment of transfer of the donated item (real);
• the fact of concluding a transaction of this type does not entail lasting rights of claim or obligations;
• a deed of gift is not a unilateral transaction (Clause 4 of Article No. 575 of the Civil Code of the Russian Federation) - there must be a fact of expression of will from the donee to accept property as a gift;
• At the legislative level, it is possible to use not only property as a gift, but also rights and exemption from any obligations.

Form of gift agreement

As is known, the norms of Art. 574 of the Civil Code of the Russian Federation, in almost all cases of concluding a real gift agreement, allows it to be concluded orally , which is dictated by the everyday nature of such a transaction. However, this article contains a number of exceptions to the general rule, requiring compliance with written form .

It should be understood that the written form of the contracts below is one of the factors of their validity. Their conclusion orally, according to paragraph. 2 p. 2 art. 574 of the Civil Code entails the nullity of such transactions (initial invalidity).

• Consensual gift agreement (clause 2 of article 574 of the Civil Code). The need for written form is due to the need to record the promise of a gift in the future, in order to protect the rights of the donee. Pursuing the same goals, the legislator requires the expression in the text of the contract of a clear intention to transfer the gift to the donee, since it is the consensual form of the contract that is characteristic of larger gifts.
• Legal gift agreement by a person where the value of the gift is more than 3 thousand rubles (clause 2 of Article 574 of the Civil Code). Based on the opposite, we will highlight an exception that allows you to enter into oral legal donation transactions. person if the price of the gift is less than the above value limit. Despite this possibility, in order to record such financial transactions in accounting, in our opinion, it is more advisable to be guided by paragraphs. 1 clause 1 art. 161 of the Civil Code, which always requires written confirmation of an agreement with the participation of a legal entity. faces.
• Real estate donation agreement . This agreement requires written form not only due to the fact that the nature of the gift does not allow it to be given as part of a real transaction, but also due to the need for subsequent state registration of the object (Article 131 of the Civil Code). The procedure for state registration requires the submission of certain documents to the Rosreestr authorities, which also include the basis for the transfer of rights - a gift agreement. According to paragraph 5 of Art. 18 Federal Law No. 122 of July 21, 1997, such submitted documents must be in written form.

Please note that, based on the meaning of Art. 45 of the Fundamentals of the legislation of the Russian Federation on notaries, a notary can certify contracts executed only on paper or in electronic form. Thus, the certification of oral contracts is excluded . In view of this, donation transactions certified by a notary must also be in writing.

Responsibilities and rights of the donee

According to Russian legislation , there are no legal norms requiring the fulfillment of obligations related to the actions of the recipient of the gift . There are only two minor nuances:

• the obligation to use the gift item exclusively for its intended purpose;
• careful attitude towards the object of donation, which is not a property value.

Parties who have entered into a consensual donation transaction have the alternative of defining suspensive or disqualifying conditions. These conditions are circumstances whose occurrence remains in question. Their use will help establish a specific point in the agreement that is not defined by a time frame, but in the future will oblige the donor to transfer the gift or cancel this obligation.

In addition, when concluding an agreement before the process of transferring the gift itself, the parties have the right to refuse this procedure. If the donee refuses the deed of gift, he is obliged to compensate the damage to the other party (Article 573 of the Civil Code).

Conditions under which the gift agreement is real

As already mentioned, a real gift agreement, due to its nature, has some features inherent to it, even in comparison with other types of gift. Thus, a real contract can be considered concluded when, along with the parties reaching an agreement on all its essential terms, the specified contract is simultaneously executed.

Based on the above, the most basic condition for the existence of a real nature of a gift agreement should definitely be considered the coincidence of the moments of conclusion and execution of the agreement (transfer of the gift). Simply put, the transfer of a gift without a preliminary agreement or simultaneously with it will be considered a real gift agreement (Article 433 of the Civil Code).

Additionally

No less important evidence of the real nature of the contract, even despite all its obviousness, should be considered the form of donation . Thus, if it was made orally, then either it is a real contract or initially void.

If a real contract is drawn up in writing, it should not give rise to any obligations of the donor , limited solely to recording the fact of transfer of ownership of the gift to the donee on the basis of an abstract donation.

When writing a gift agreement, if it is necessary to make a real agreement, it is quite advisable to indicate in it the need to transfer a gift as an essential condition for its conclusion . An agreement containing such a condition cannot but be of a real nature.

Form of Consensual Agreement

According to paragraph 1 of Article 574 of the Civil Code, the format for concluding a real gift agreement can be oral, provided that the subject of the gift is transferred immediately.

But the transaction on the promise of a gift is exclusively written in nature , otherwise it will be considered void (clause 2 of Article 574 of the Civil Code).

Conditions of Consensus

The moment of completion of the consensual procedure is the fact of general agreement of the parties on the subject of the gift and other mandatory terms of the contract. The consensual nature of the document directly depends on the conditions stipulated in the text before its signing. When concluding a transaction on the promise of a gift, the parties to the transaction must understand that the date of conclusion of the document and the moment of its completion/execution should not coincide.

Thus, according to paragraph 2 of Article 572 of the Civil Code, the consensual agreement contains :

• a promise by one party to subsequently carry out the donation procedure;
• determination of the specific subject of the gift (the promise to transfer all or part of the property is void, since it does not highlight the specific subject of property law, which is the main condition of any contract);
• Cancellative/suspensive conditions allowing the donor to refuse to fulfill the terms of the deed of gift or, conversely, to oblige him to immediately fulfill them;
• performance deadlines, which directly indicate consensuality, and subsequently determine the fact of fulfillment of obligations.

This transaction must be in proper form, that is, in writing.

Cancellation of a real gift agreement

Cancellation of a real gift agreement is carried out on the general basis established by Art. 578 Civil Code of the Russian Federation. It is important to understand that Chapter 32 of the Civil Code contains other grounds for the cancellation of a gift agreement (Articles 573, 577 of the Civil Code), however, they relate exclusively to consensual agreements, since they imply such cancellation in the form of refusal to perform before the transfer of the gift.

Thus, the first basis for the cancellation of a real gift agreement is an attempt on the life or infliction of bodily harm on the part of the donee to the donor or members of his family (clause 1 of Article 578 of the Civil Code). The legislator considers such behavior of the donee towards the donor to be unworthy, and therefore allows the question of canceling the donation to be raised.

In addition, the cancellation of a real donation is possible if it is proven that the donee has mishandled the thing donated to him, which may result in its loss (clause 2 of Article 578 of the Civil Code). It should be understood that cancellation of a gift in the event of such irresponsible behavior of the recipient is possible only when the gift represents a large non-property value for the donor.

Attention

An equally common ground for canceling a real donation is the fact that the donor outlived the donee (clause 3 of Article 578 of the Civil Code). For the validity of such a basis, the parties must provide for such a condition in the text of the concluded agreement.

It is also impossible not to note the basis for canceling a real donation - for this there is only one condition established by paragraph 5 of Art. 582 of the Civil Code of the Russian Federation. Thus, a donation can be canceled only if it was used for other purposes or the procedure for changing such a purpose was violated.

Cancellation of gifts and donations is permissible only in court , based on which the burden of proving the existence of grounds for such cancellation is placed on the party interested in it - the donor. It should be understood that if an oral agreement is concluded, the donor may have difficulties not only with proving the existence of grounds for cancellation, but also with proving the very fact of the agreement.

In case of cancellation of the donation, in accordance with clause 5 of Art. 578 of the Civil Code, all property received by the donee and preserved in kind must be returned to the donor . If such property is lost without a trace after the moment of cancellation, then such a fact should be considered unjust enrichment, which is also subject to compensation to the donor.

Example

A gift agreement was concluded between Petrov and Sidorov, according to which the latter acted as the donee and received ownership of a Kawasaki moped from his friend Petrov, which he gave to the donee immediately after signing the agreement. Petrov’s son, Andrey, was supposed to “drive” this moped in the near future. Having drawn up a written agreement on their own, the friends did not wait for the donor’s son with a moped and decided to celebrate the signing of the agreement in a diner located around the corner from the place where they signed the above agreement. During the celebration, a conflict broke out between Petrov and Sidorov due to a verbal altercation that arose as a result of the latter’s ambiguous expression of sympathy towards Petrov’s wife. In the process of sorting out the relationship, Sidorov hit Petrov twice in the face, causing him bodily harm. After this, Petrov’s son arrived at the diner and pacified his drinking friends. They shook hands, but because of what happened, Petrov refused to give Sidorov the moped he had been given. To oblige Petrov to fulfill the agreement, Sidorov filed a lawsuit against him. At the court hearing, the donee referred to the gift agreement concluded between them, which was drawn up in writing, on the basis of which the donor assumed obligations that he did not fulfill. Petrov, in turn, referred to the donee inflicting physical injuries on him in the form of two bruises, which, according to paragraph 1 of Art. 578 of the Civil Code is the basis for canceling the donation, which he actually asked the court to do.

The court, in turn, explained to the parties that the agreement they signed, since it contained the phrase “Petrov gives Sidorov a Kawasaki moped,” is real, i.e. to recognize him as a prisoner, in accordance with paragraph 2 of Art. 433 of the Civil Code, the moped actually should have been transferred to Sidorov. Since this fact was not recorded, the agreement cannot be considered concluded, and therefore, it did not give rise to Petrov’s obligations. Based on this, it was explained to Sidorov that due to the lack of obligations of the donor, he could not be obliged to transfer the moped, and Petrov was explained that cancellation of an unconcluded contract was impossible.

Signs of a deal: why are they needed?

Any transaction: real, consensual, has its own characteristics. They allow you to differentiate the type of agreement. And the real, consensual agreement differs from each other: the moment of execution of the will of the donor under the transaction does not coincide, as well as the execution of the agreement itself. In simpler words: real contract: present, consensual - future execution of the will of the donor.

If the text of the agreement does not contain consensual features, then it will be recognized as real or not in compliance with the law.

If we summarize the above, we should understand the content of the gift (consensual agreement):

1. The donor, as a participant, has an obligation, and it gives rise to the obligation to transfer a gift to the donee or to release the latter from a property obligation, but in the future tense. These circumstances are one-sided: the donee has the right to demand that the donor fulfill his obligations. If the donor's obligations to transfer the gift in the future are not specified, the agreement is not considered consensual.
2. Written document only. Violation of this rule results in the nullity of the contract.
3. The donor must express a clear intention to fulfill the contract in the future. The will must be specified in the agreement and come only from it.
4. An indication of the person who is privileged to receive the gift. As well as precise identification of the subject of the gift in the contract.
5. Duration and presence of a suspensive condition in the agreement. These two points must be recorded in the text of the agreement. The requirement is explained by the fact that there is a gap in the time interval between the formalization of contractual relations and their execution. Although the term is not a mandatory clause of the contract by law. But its presence, as well as the fixation of suspensive conditions in the agreement, directly indicates that the transaction is consensual in nature.