Rights, obligations and responsibilities of the parties under the gift agreement

A gift agreement is a document on the basis of which one party transfers certain property free of charge to the other party. This document also provides for an obligation to transfer certain property in the future or to release it from property obligations. The deed of gift is completely gratuitous, but it can be real or consensual, depending on the case. This agreement is governed by Chapter 32, Art. 572 of the Civil Code of the Russian Federation. A gift agreement can be of several types, in particular:

• on the transfer of ownership of property that belongs to the donor;
• on the transfer of property rights that belong to the donor;
• to release the donee from fulfilling a property obligation towards the donor;
• on the transfer of property rights to the donee on the terms of a gratuitous assignment of the right of claim (Articles 382, ​​383 of the Civil Code of the Russian Federation);
• upon the donor's acceptance of the donee's debt obligations based on the procedure for transferring the debt with the permission of the creditor.

It is worth noting that the transfer of a gift free of charge does not mean that the donee is completely exempt from the property obligations of the recipient, since the donation of property can be conditioned by a variety of circumstances, for example, with the obligation to use the donated property for generally beneficial purposes or with the right to use only one premises (in case of donation of residential property). A gift agreement may also contain reciprocal obligations of the donee, which, in turn, means that the document can be either unilateral or mutual.

Donation agreement: concept and form

A gift agreement (hereinafter referred to as DD) is a document confirming the donor’s intention to transfer real estate, land, shares or other valuable things to the donee on a free basis without conditions. According to Art. 574 of the Civil Code of the Russian Federation, a transaction can be concluded orally, with the exception of several cases:

• the donor is an organization, and the value of the gift exceeds RUB 3,000;
• the donor intends to give the gift in the future (a specific date will be required);
• real estate is donated (transfer of rights is subject to state registration).

The DD presented above is in simple written form. Notarization will be required if the gift is a share in property owned by the donor as a common property. In all other cases, contacting a notary is not necessary.

Complete the survey and a lawyer will share a plan of action for a gift agreement in your case for free.

The position of the legislator in relation to the parties to the agreement in 2021

According to the current legislation of the Russian Federation, the concept of contract means a transaction in which several parties (usually two) participate. A gift agreement, in which the donee and the donor participate as parties, is no exception to the rules.

At the same time, donation is the actual transfer of property benefits from one party to another. Simply put, the owner of the property (donor) expresses his voluntary desire to reduce his own property in favor of the donee, increasing his property at the expense of his own and without demanding anything from him in return. The object of a deed of gift can be not only ordinary gifts, real estate and movable property, but also property rights, as well as release from obligations.

It is worth noting that the parties to the donation act in the transaction, from the point of view of the legislator, as legally equal subjects, and all legal relations formed between them at the time of conclusion of the transaction are regulated by civil law.

Thus, today the majority of subjects of civil law - legal entities, ordinary citizens (individuals) and the state with its municipalities and entities - can act as parties to the deed of gift.

Types of gift agreement

There are several types of DD:

• standard (real);
• contract of promise of gift;
• donation agreement.

Let's look at each of them in detail.

Standard

By standard is meant a DD that does not contain the terms of the promise of donation. It comes into force from the moment of signing, and the donee can re-register rights to the property immediately.

Important! A citizen has the right to act as a donor only if the gift rightfully belongs to him.

Promise of Giving

A promise of gift agreement has several mandatory features:

1. Written form (clause 2 of article 574 of the Civil Code of the Russian Federation). A promise made orally does not legally oblige the citizen to transfer the gift to the donor.
2. Contains a clear intention to transfer valuable things to the second party for free, or to assume obligations of the donee to third parties. A specific date will be required.
3. Indication of the specific subject of the donation and personal data of the recipient. A contract of promise of donation, in which there is no reference to an object in the form of a right, thing or exemption from property obligations, is considered void (Clause 2 of Article 572 of the Civil Code of the Russian Federation).

The agreement is consensual in nature, and there is always a time gap between its signing and entry into legal force. Execution of such a DD is possible only after the date specified in it.

Examples of what not to do:

1. The man promised to give the woman his apartment in a month, the date is indicated in the contract. A few weeks later, the donee applied to the MFC to re-register ownership, but she was refused due to the lack of specific data about the subject - real estate: the DD did not indicate its area and address.
2. The woman entered into a gift agreement with her friend, but the document states that it comes into force from the moment of signing. In such a situation, the recipient immediately becomes the owner of the gift, and not after some time.
3. The donor verbally promised to give the property to another person. This is not considered a transaction, because... To register rights you will need a written DD.

Note! A DD obliging the recipient to perform one or another action in response to receive a gift is contrary to the law. An exception is the use of suspensive conditions: for example, donating money for a wedding, successful completion of school or university - in this case the transaction is of an incentive nature and is allowed.

Donation

A donation agreement is a document confirming the intention of a citizen or legal entity to transfer property for socially beneficial purposes. Instead of the donor, the wording “donor” is used here.

Unlike a deed of gift, where the transaction requires the consent of the donee, permission or consent is not required to draw up an agreement (Clause 2 of Article 582 of the Civil Code of the Russian Federation).

Such a document contains several features:

1. A gift can be transferred either immediately after execution of the document or through a promise of donation.
2. The donor has the right to indicate the possibility of using the gift in a specific way. If he finds out that the gift is not being used for its intended purpose, the donation may be canceled (Clause 5 of Article 582 of the Civil Code of the Russian Federation).
3. The recipients can be individuals or legal entities, public associations, medical and social institutions, charitable and educational organizations.

Legal advice: if you want to make a gift worth more than 3,000 rubles. state or municipal institution, draw up a donation agreement. In this case, it is prohibited to conclude a standard DD (Article 575 of the Civil Code of the Russian Federation).

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

Briefly: donation is always a gratuitous transaction, and an agreement for gifts worth from 3,000 rubles. must be in writing, indicating the details of the donee and the subject.

Mandatory and additional terms of the gift agreement

Who are the parties to the gift agreement and what are the requirements for them?

What is giving in 2021 in simple words?

So, a gift is usually called an agreement/contract according to which the donor, free of charge (without demanding money, services, etc. from the other party) and voluntarily wishes to transfer or undertakes to transfer in the future into the ownership of the donee any property rights or benefits. In addition, the giving party has the right to release the donee or undertake the obligation to release him in the future from property obligations in relation to himself or third parties.

We remind you that the object of a gift can only be something that is part of the donor’s property. Otherwise, the transaction will be considered void!

From the above-described definition of the concept of a gift agreement, it can be understood that the time of concluding the agreement and the moment of transfer of the gift established in it may not coincide. All this applies to two main types of deed of gift - real and consensual. In the first case, ownership of the object of the gift passes from the donor to the donee at the time of conclusion of the transaction, while in the second - within the period established in the content of the agreement, according to which the donor does not transfer the gift, but undertakes the obligation to transfer it in future.

The main legal features of a gift transaction include::

1. Irreversibility (irreversibility);
2. gratuitousness;
3. consent of the donee to accept the gift;
4. the desire of the donor to transfer the gift to the recipient free of charge;
5. reduction of the donor’s property in favor of the donee;
6. an increase in the donee’s property as a result of the conclusion of a deed of gift and the acceptance of the object of donation from the donor.

The gratuitous nature of the deed of gift arises from the very desire of the giving party to give a gift to another person without receiving any return benefits for it. At the same time, the real motives for conducting such transactions can be very different, for example:

• providing financial assistance to a person who needs such support, but who does not have the opportunity to pay for this gift;
• giving in gratitude to someone or out of compassion, a desire to improve the quality of life, etc.

However, the legislator allows the presence in the content of the agreement of counter-provisions that are considered conditional, that is, not affecting the gratuitousness of the gift agreement.

One of the most basic signs of a deed of gift, however, is considered to be an increase in the property of the party receiving the gift. After all, this is precisely the end in itself of concluding a transaction between the parties, as a result of which the right of ownership of the property that belonged to the donor before signing the agreement is transferred to the donee. Thus, from the point of view of the legislator, the donee enriches himself without spending his own funds, which entails the obligation to pay the appropriate income tax. But more on that a little later.

Expert opinion

Oleg Ustinov

Practicing lawyer, author of the website “Legal Ambulance”, one of the co-founders of the “Our Future” foundation.

It is precisely by this feature (an increase in the donee’s property as a result of a decrease in the donor’s property) that a donation, for example, differs from a will, according to which the testator, although he transfers his property free of charge to a person or group of persons, is not deprived of it during his lifetime.

In addition, a gift will not be considered as such without the intention of the donor to transfer a specific gift to the recipient. That is, even if the content of the contract does not contain a clause on the price of the gift, the timing and procedure for payment (the same applies to other counter-provisions), according to paragraph 3, paragraph 423 of Article 423 of the Civil Code of the Russian Federation, without the intention of the giving party to transfer the gift free of charge, the gift will be considered compensated .

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An example from the practice of site lawyers

Citizen O. found himself in a rather difficult life situation, from which his neighbor in the dacha, citizen M, helped him get out. After some time, she began to remind him when they met that it was O. who owed her the rest of his life for solving the problem. At the same time, O. did not have anything to thank his neighbor financially, and therefore he offered her to buy half of the land plot bordering her territory at a low price.

However, due to the fact that the cost of the plot was reduced several times, the parties decided to formalize the transaction as a gift, which was incorrect, since from the point of view of the legislator, the donor did not want to transfer the land to M. for free, but only wanted to thank the neighbor by significantly reducing price and receiving money in return, which turns the transaction into a purchase and sale.

We also remind you that the donor’s intention to transfer his property into the ownership of the donee must also correspond to the desire of the second party to the agreement to accept the gift, that is, to receive not only the rights, but also the obligations regarding this object.

It is precisely because of the presence of duties that many citizens are forced to refuse to accept property. For example, in 2021, increasingly, along with a gift, donors transfer to the recipient the obligation to repay loans, other debt obligations (for example, debts for utilities), etc.

For this reason, after the donor has decided to reduce his property in favor of another person, he first of all needs to obtain his consent to this.

Contents and elements of the gift agreement

Any DD consists of several elements that are important when determining the content:

Now about the content.

In addition to indicating the parties, the basis and the subject, other data will be needed to draw up a gift agreement:

• series and numbers of passports of the parties;
• registration addresses;
• location address, technical characteristics when donating real estate;
• cadastral number, area, address - when donating a land plot;
• bank name, account details – when donating money;
• name of the organization, information about securities, details of the agreement with the broker - when transferring shares;
• make, model, color, license plate number, year of manufacture, STS series and number, VIN – when donating a car.

Important! A prerequisite is the presence of signatures of both parties on the deed of gift. Without them, the DD is invalid.

Sample apartment donation agreement:

Consultation on document preparation

Are you tired of reading? We’ll tell you over the phone and answer your questions.

Legal status of the donor in 2021

Based on the purpose, as well as the content of the consensual and real donation agreement, in some situations, the legal status of the parties to the donation may either coincide or differ significantly from each other, depending on the chosen type of agreement.

For example, when making a real deed of gift, the donor and the donee do not form an obligatory relationship, because the transfer/reception of the gift took place at the conclusion of the transaction, as a result of which the donor was deprived of ownership rights in favor of the donee, thus fulfilling his main obligation - the real transfer of the gift.

But, according to the content of the promise of a gift agreement or a preliminary deed of gift, the donor forms an obligation to transfer the object of the gift in the future in favor of the donee, which separates the fact of transfer of property and the moment of conclusion of the transaction.

In addition, the donor has the following responsibilities:

1. inform the person who agreed to accept the gift about all obvious and hidden shortcomings and defects of the donated property;
2. pay the costs associated with the transfer (delivery, putting into working order, etc.) of the gift;
3. indicate the purpose of use of the gift by the recipient (only necessary when drawing up a donation agreement).

In addition to the obligations, the legislator assigned the giving party the right to refuse to fulfill the terms of the consensual agreement until its execution. Thus, according to paragraphs 1 and 2 577 of the Civil Code of the Russian Federation, in 2021 he can still exercise this right:

• if the donee party to the gift transaction has committed any illegal action in relation to the donor or his relatives (intentional damage to property or health, attempt on life, etc.);
• if the property or family situation after the conclusion of the transaction has changed for the worse or the transaction has led to a deterioration in the standard of living of the former owner of the gift (the same applies to deterioration in health).

In addition, on the first basis, the donor has the legal right to cancel the real gift agreement (based on the information specified in paragraph 1 of Article 578 of the Civil Code of the Russian Federation). At the same time, in paragraph 2 of the same article, one can find a circumstance, the presence of which is the basis for the donor to cancel any type of deed of gift and demand the return of the gift to him.

Expert opinion

Oleg Ustinov

Practicing lawyer, author of the website “Legal Ambulance”, one of the co-founders of the “Our Future” foundation.

This circumstance is the recipient’s improper handling of the gift given to her, as a result of which it may be damaged or irretrievably lost. At the same time, this gift must have significant non-property value for the recipient (for example, it must be an item passed on within the family, etc.).

Also, in a real contract, it is appropriate to define a condition according to which the donor will have the right to cancel the donation in the event of the premature death of the donee (if the donor survives the donee), in accordance with paragraph 4 of Article 578 of the Civil Code of the Russian Federation, after which the donated property, by law, will have to become part of the inheritance the mass that will be distributed among the heirs by law and will.

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Refusal by the giving party to fulfill the terms of the promise agreement is also permitted in the event of damage or loss of the property promised for donation, as well as in the case of a restriction or prohibition on performing any actions with this property. Moreover, if this happens due to the fault of the donor (it does not matter whether he did it intentionally or not), he will have to compensate the recipient for the damage caused by the failure of the transaction in full.

Subject of the gift agreement

The item has a complex characteristic and consists of several elements:

1. Present. They can be property, valuables, obligations.
2. Actions of the donor: transfer of a gift, release from obligations.

In legal literature, the subject most often means property, i.e. material thing. Let's consider the nuances in detail.

Real estate

Citizens have the right to donate any real estate owned by them: houses, apartments, cottages, buildings, structures, etc. If the item is in the possession of several persons, their consent is not required, but the DD must be notarized.

A notary's signature will be required if an interest in ownership is being transferred as a gift. Donations on behalf of children under 14 years of age are prohibited by law.

Land plot

A plot of land is the subject of a donation if it is transferred free of charge under a deed of gift.

Land, depending on its category, should be used for one of several purposes:

• individual housing construction;
• maintaining a personal subsidiary plot;
• gardening, gardening.

It is impossible to donate and register forest lands as private ownership, as well as areas located within the coastal strips or in the territories of state reserves.

Donation is made only in writing.

Sample land donation agreement:

Consultation on document preparation

Automobile

Vehicles are often subjects of contracts. A car can be donated if it belongs to only one owner. If there are several owners, any of them can donate their share.

Transport is registered exclusively for one person, but in fact it can belong to several. It can be given by legal entities to individuals, and vice versa. Gifts between two organizations are strictly prohibited.

Sample car donation agreement:

Consultation on document preparation

Money

If the total amount exceeds 3,000 rubles, the transaction is concluded in writing. You can transfer money orally, but in this case the fact of its transfer, if you want to cancel the donation, will be problematic to confirm.

Sample agreement for the donation of funds:

Consultation on document preparation

Release from property obligations

Property obligations mean the assumption of an obligation to pay debts. The donor has the right to release the donee from them by concluding an agreement on gratuitous terms.

It is also possible to release obligations to a third party by transferring the debt to the donor, but this will require the consent of the creditor. Most often, this involves the transfer of bank loans, due to which the recipients are released from responsibilities to them, and they are assigned to the donors.

Legal capacity and legal capacity of the parties to the donation

According to the legislation in force in the Russian Federation in 2021, both individuals and legal entities with legal capacity and capacity can act as subjects of civil law. The last condition means that citizens have civil rights and duties that they must fulfill.

It is worth noting that the legal capacity of a citizen (individual) is formed upon his birth and terminates with the moment of his death, and the legal capacity of a legal entity is formed with the appropriate state registration and terminates with liquidation.

As we already mentioned at the beginning of the article, for the legal conclusion of a deed of gift it is necessary that one of the parties has the right of ownership, property or non-property rights - that is, the right to make a gift. Thus, a person who does not have ownership rights to the object that appears in the agreement as a gift does not have the right to conduct this transaction, just like a person who does not have legal capacity.

Lawyer's Note

The legislator means by legal capacity the acquisition, as well as the implementation by citizens, of certain types of rights that create obligations regarding these objects and their implementation. As a rule, legal capacity occurs when citizens reach the age of majority, although, in some cases, the legislator has established an earlier age for transactions.

For example, persons who are already 14 years old, but who have not yet reached the age of 18, have partial legal capacity, and therefore they have the right to participate in gift transactions as a donor with the written permission of their legal representatives, which are usually their parents , guardians or employees of guardianship and trusteeship authorities. The listed persons also represent children under 14 years of age in transactions, if they act as donees.

Responsibility of the parties

Having received a DD item (real estate, valuable thing) as a gift, the donor undertakes to treat it with care. It is important to take into account the provisions of Art. 580 of the Civil Code of the Russian Federation, according to which the donee has the right to demand from the donor compensation for damage caused as a result of donating a gift with defects.

This is possible if the defects were invisible at the time of the transaction, but the donor knew about them and did not inform the other party.

The donee is also responsible for:

• losses caused by refusal to accept a gift;
• poor handling of the gift (having discovered this, the donor has the right to cancel the transaction).

When concluding a donation agreement, the recipient is responsible for using the gift for its intended purpose in order to avoid cancellation of the transaction.

Briefly: the object of the donation is a gift, and the donor undertakes to notify the recipient of his shortcomings, and the other party undertakes to handle him with care.

Legal status of the donee in 2021

Unlike the donor, the legal status of the donee is distinguished by a greater number of rights than responsibilities. The fundamental right of a given person comes from the very concept of donation and consists of the right to accept or refuse a gift offered by the giving party. Thus, the main right of the donee depends entirely on the donor’s obligation to transfer the property free of charge, and therefore, if he fails to fulfill the obligations specified in the deed of gift, the donee, in accordance with the provisions described in Article 398 of the Civil Code of the Russian Federation, has the legal right to demand a gift from the donor.

We remind you that, according to information from paragraph 2 of Article 396 of the Civil Code, if the property has non-property value, and the donor refuses to transfer it to the donee, the owner of the thing can compensate the latter for losses, that is, give a similar thing or reimburse its real value.

In addition, paragraph 1 of Article 573 of the Civil Code of the Russian Federation secured the right of the party receiving the gift to refuse to accept the gift offered to it . However, all this applies only to a consensual agreement and the donee can exercise this right only until the moment of acceptance of the proposed property benefits. When refusing, the donee is not obliged to voice the grounds and reasons for his decision, but is obliged to comply with the norms arising from paragraph 2 of Article 573 of the Civil Code, which once again confirms the fact that accepting a gift by the donee is not an obligation, but is one of his rights.

According to the information described in paragraph 1 of Article 581 of the Civil Code of the Russian Federation, the rights of the donee cannot pass to his legal successors (for example, heirs by will or law), unless otherwise specified in the content of the agreement. However, succession, in accordance with paragraph 6 of Article 582 of the Civil Code of the Russian Federation, can be carried out upon the conclusion of donation agreements, the content of which provides for the obligation of the donee, who undertakes to use the object of the donation for the purposes established by the donor. Thus, in the event of a changed situation, the recipient has the right to change the circumstances of the use of the gift with the consent of the donor.

According to the legislation in force in Russia in 2021, the obligations of the donee are formed upon the conclusion of a gift agreement , the content of which assumes that property benefits are transferred to him with an encumbrance in favor of the donor. Simply put, if the deed of gift contains a condition for the lifelong use of the gift by the donor himself.

Among the actual responsibilities of the donee, perhaps, it is worth including his proper attitude (care, use, etc.) to the donated property, which represents great intangible value for the donor, according to paragraph 2 of Article 578 of the Civil Code of the Russian Federation. In case of ignoring and violating this rule, and, therefore, exposing the gift to the threat of irretrievable loss or damage, the donor has the legal right to reclaim it back into his property.

Can a gift be unilateral?

Lawyers always have a lot of disputes about the number of parties to a contract: some believe that this is a two-sided transaction, because it requires the will of the owner and the consent of the donee, others - that this is a one-sided procedure, for which the person’s desire to make a gift is sufficient.

In fact, a DD is a bilateral transaction, where there are more unilateral obligations for the donor. Unlike the donee, who can refuse to accept the gift, after signing the agreement, a citizen no longer has the right to formalize a refusal to fulfill the terms of the deed of gift without significant grounds.

At the same time, the procedure is impossible without the consent of the recipient of the gift.

When does the donation ban apply?

Expert opinion

Zakharov Stanislav Vasilievich

Legal consultant with 7 years of experience. Specializes in family law. Has experience in defense in court.

The ban on donation is established by Art. 575 of the Civil Code of the Russian Federation only in certain situations. You cannot give valuables or other property that belongs to a child under 14 years of age or to an incapacitated citizen.

Donation is also prohibited in other situations:

1. You cannot give gifts to employees of medical, educational, social and other organizations where the citizen is receiving training or support.
2. Donations to employees of state and financial institutions, municipal organizations are not allowed if the transfer of the gift is related to their official powers or performance of official duties.
3. Transactions between two or more businesses are prohibited.