The research topic is relevant and substantiates the need for the empirical research. The research carried out in Lithuania so far is not comprehensive, and there is a lack of newer and more detailed research revealing the implementation of specific rights and legal regulation specific to this agreement. It should be emphasized that there is a lack of an integrated approach to the aspects of legal regulation of gift contracts, and there is a lack of generalizations and conclusions. A proper analysis of the importance and regulation of the donation contract is necessary to better understand the emergence, change or termination of the legal relationship of the donation based on such legal bases, their impact on the rights of third parties. The aim of this article is to analyze the aspects of legal regulation of the donation agreement and to identify the main problems.
Gifts create and strengthen relationships between individuals that create balance. These principles have survived and provided a transition to legal and economic systems. Today, items have both emotional and monetary value, and gifts affect a person's condition. The donation contract is widespread in our daily lives. The main purpose of a gift agreement is to express one's will to donate or improve another person's financial situation free of charge. Under the gift agreement, the donor transfers the property or property right to the recipient free of charge or releases the recipient from the property obligation to the donor or a third party. The main feature of a gift is the gratuitous nature of the contract, in the sense that the person making the gift does not seek or expect in return any returnable gifts or services. The essence of this principle is questioned by one of the institutes of the gift agreement - a conditional gift. A transaction under which the gift or property right of the transferee passes to the owner only after the death of the donor shall not be considered a gift contract; as well as when a person renounces the estate, or when the parties transfer certain property or property rights to each other.
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Research object. Aspects of legal regulation of donation agreement.
The aim of this article is to analyze the aspects of legal regulation of the donation agreement and to identify the main problems.
The donation contract has undergone a specific historical development, especially given its foundations since Roman law. Indeed, unlike basic contract law obligations (such as: sale, loan, etc.), a donation contract between wellknown and independent legal documents is found only in the 4th century. and became a specific form that gradually formed to this day.[1]
The donation agreement is one of the oldest and most important positive agreements since a person (donor) transfers a gift to another party - the recipient (donor). The object of the donation may be the right to the ownership of a specific object or any other right of ownership. This contract originated in the laws of Rome, where the legal rules related to the concept of a donation contract, the subjects of that contract - the donor and the recipient of the gift. A donation contract is a contract for the permanent and free transfer of any item or right. The purpose of concluding this agreement is for one party to receive material (property) benefits free of charge at the expense of the other party. The present donation agreement is one of the oldest civil rights treaties and is recognized as one of the foundations of the emergence of property rights during the Roman period of the Roman state (5th-1st century BC). The history of this institute dates to the laws of Emperor Tsintsi (550 BC). Under those laws, a donation was given to another person as a gift or service, but at the same time it motivated the recipient of the gift or certain service to give or provide the service in exchange for the gift received.[2] That is, the gift was not a completely free or gratuitous transaction, the gratuitousness of the gift as one of the essential legal features of the gift emerged later. Because the gift, like the will, is owned and strictly controlled by public opinion, the relationship of the gift to the current legal regulation has developed gradually. Legal donation relationships are also reflected in Islamic law. First, a gift in Muslim law is called "error" and is defined as the giving of property. In Islam, gifts and sacrifices are recognized as a means of strengthening the relationship between relatives and other people. The purpose of the gift is to encourage and maintain friendship.[3]
Gifts play an important role in our lives, performing a social function and at the same time existing as a system of certain rules. Anthropologists interpret gifts as processes of informal exchange.[4] The Donation Institute contributes to strengthening the links between social groups at different levels of society. It should be noted that, in the case of a gift, there is reciprocity between individuals, where individuals communicate with each other, playing a role in this process, and the actions of the parties are related to the process of exchange. Giving and receiving a gift
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is considered a social behavior of individuals.[5]
According to M. Mauss, the most important motivation for donation is the exchange of gifts and the principle of reciprocity. Gift-giving exists in almost all cultures and has important social significance. The origins of the gift are the ancient rituals of individuals when they were sacrificed to the gods in the hope that the gods would repay and send certain graces. According to the sociologist, although gifts should be given freely and willingly, they have a duty to give and a duty to receive. Our society seems to impose an obligation to give.[6]
Giving enables the giver to give a gift, which in turn opens new possibilities for the giver as it develops his virtues and introduces him to the logic of excess. Indeed, if "man is created for a gift," giving is not only an obligation, a price, or a loss, but also an opportunity to improve oneself as a personality, to cultivate one's humanity.[7] "Giving is not an act of giving without losing, it is an activity that is greater than the balance of profits and losses, acquired without acquiring or without acquiring to give." From the recipient's point of view, the gift respects its dignity: through solidarity, it can equalize those who were unequal and equalize those who were different in dignity and fundamental rights. Therefore, it does not create a relationship of subordination or dominance of one person over another.[8]
Donation, giving gifts and charity (support), the provision of certain services can also be linked to corruption. A. Millington et al. conducted a study of the relationship between UK manufacturing companies in China and their local suppliers. The analysis was based on interviews with 49 Chinese companies. Interviews were conducted with both senior staff and local line managers who were responsible for day-to-day purchasing decisions and for managing relationships with suppliers.[9] The results showed that the provision of gifts is considered a major problem in Chinese companies. The donation appears to be linked to illegal payments, corruption, and self-interest. Companies aim to reduce the frequency of illegal transactions by changing the roles of staff, establishing shared responsibilities, which include separating different aspects of purchasing / purchasing, encouraging the participation of older employees in the process, and training employees and suppliers.[10]
A gift can also be understood as an obligation, for example, as the state collects taxes. In a broad sense, it can also be seen as a form of "sacrifice" because in return nothing is given immediately: the person who pays the tax receives public goods and services, but not based on commutation justice, but on the principle of apportionment.[11]
Donation transactions help build and maintain relationships, so a gift establishes a hierarchy between the donor and the recipient. This is most evident in the duty to receive. Mauss argues that refusing to receive is like sharing when there is a fear of not being able to respond. This concern is the fear that the gift the person is return-
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ing may be insufficient and lose their status. According to Mauss, there is an element of respect and reputation associated with a donation.[12]
Kesting et al. defines the perspective of a gift as an economic term and argues that it is constructed in exchange, its axioms of interest, instrumental rationality, and benefit maximization - concepts prevalent in conventional forms of economic analysis - recognizing the gift as a social practice supported by social institutions. and from an institutional economic perspective.[13]
D. Rajak, speaking of donation contracts, analyzes the interaction between gift and pre-gift relationships that create a social bond between the donor and the recipient of the gift. The scholar considers this connection to be the main way of forming diplomatic alliances. Exchanging gifts expresses both the cooperative and competitive value of society. The donation includes a commitment of reciprocity, which is very important to ensure the continuity of these relationships. The donation acts as a powerful mechanism for the company to generate "social capital".[14]
Under the donation agreement, the donor transfers the property or property right to the donor's property free of charge to the recipient, after he or she has expressed his or her will to accept the gift. The gift agreement is unilateral, gratuitous, and at the same time real, as it is concluded after the transfer of the donated item. We do not consider a person's obligation to donate property or property rights in the future to be a donation agreement (Civil Code, 2001).[15]
An essential element in describing any gift is the need to transfer the gift or monetary right from the donor to the transferee of the property. This element must be because to receive a gift, the donor needs impoverishment.[16]
The donation is free, voluntary; it is not merely the result of a legal or social obligation, it may be part of a moral obligation. This distinguishes a gift from a legal obligation (such as paying a tax) or contractual (such as delivering goods). In principle, a gift is unilateral in so far as, unlike a business exchange, it does not create an obligation to return the gift to the recipient (at least there is no direct or immediate obligation). It can also be part of the principle of reciprocity, where it results in reciprocal gifts, each of which remains free and voluntary, but leaves the door open to give or not to give to another person, according to his ability or desire.[17]
In Scottish law, the concept of donation and the contract were formed at the end of the 19th century, naming it as a real promise to donate certain property by transferring it. In the sense that no written contracts or other formalities are required, and the fact of the donation itself can only be confirmed by the testimony of witnesses. The two main evidences in a gift relationship are the intention or intention to give (animus donandi) and the transfer of the gift itself.[18]
Under German law, the contract of donation is enshrined in the German Civil Code, which explains the donation in detail in Articles 516 to 534, as well as with references to several other articles. The donation institute VCK
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is established as a gratuitous support agreed between the parties and under which one party improves the property position of the other party with the property of the first party. Since this specific idea of gratuitous donation is based on an agreement between the parties, other requirements, such as the donor's motive or intention (animus donandi), such as those under French law, are redundant.[19]
According to Article 572 of the Civil Code of the Russian Federation, a donation contract is a gratuitous transaction by transferring an object, ownership or exemption from property tax to another person's property. In the system of civil transactions, gift transactions are related to alienation.[20]
Under USA civil law, the donor may also set out a specific term or conditions and/or ongoing obligations in the donation agreement. For example, formal, written arrangements are required for: restrictions on the donation that allow the donor to control the future use of the gift, to invest or disburse money under certain agreed conditions that will result in the asset or project being named after the donor. In such and similar circumstances, it is in the best interest of the donor and the recipient to have the terms of the gift clearly demonstrated to avoid misunderstandings in the future. The gift contract is not discretionary, so the arguments for and against below are not relevant. The donor may be offended by a request to enter into a donation agreement on the condition that the parties make an undertaking, believing that such a request would cast doubt on his or her reliability or financial capacity.[21]
According to D. Reinstein, a gift is similar to a fireworks i.e. to the "sense of blow gifts" when the giver, for example when donating a sweater, chooses his color, brand, and can enjoy seeing the recipient wear it. The gift giver can also specify how to use it, i.e. a certain condition and at the same time maintain a certain control over the donated item i.e. as if part of the property.[22]
A conditional gift is also provided for in German law and if the condition is not implemented and fulfilled, the donor has the right to demand the return of the gift. Such a condition usually indicates for what purpose and for what purpose the donated property must be used. The problem arises here because it is sometimes unclear when a condition can clearly benefit the donor, how to distinguish between a permitted gift with a condition and a mutual service contract, which clearly cannot be a gift contract under German law because it conflicts with the gratuitous nature of the gift). The German courts consider that if a donation clause confers a benefit on the donor, then that benefit can be deducted from the value of the gift. In such a case, such as a conditional donation, the donor states that he will live in that land until his death is reduced by the court, but the donation agreement itself does not change into a reciprocal service contract. Such a distinction is difficult to apply in practice.[23]
The non-gratuitous nature of donation agreements define that a donation agreement is considered gratuitous because the donor does not receive coun-
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ter-satisfaction from the other party-giver for the performance of his or her duty. It should be noted that the gratuitous nature of the gift contract does not mean that the recipient of the gift has no property obligations. Remuneration is not considered to be a gift contract, provided that the donor imposes certain obligations on the recipient, which may be imposed not only on the donor but also on behalf of third parties. It should be noted that the donor also has the right to establish mutually beneficial terms in the donation agreement. For example, when donating a car, a person may include in the donation agreement a condition that they will be able to use the car on weekends.[24]
As regards the gratuitous nature of the gift contract, it is appropriate to compare that contract with the contract of sale, since the essential difference between those contracts is the payability of the contract. As already mentioned, under the gift agreement, the donor transfers the property or property right to the transferee free of charge or relieves the recipient of the property obligation from the donor or a third party. Meanwhile, in the sale and purchase agreement, the seller undertakes to transfer the item or good to the buyer by the right of ownership or trust, after the buyer undertakes to accept the item or good and pay the specified amount of money for it.[25]
Under Canadian law, a contract under which a donor transfers ownership of property to another person, the recipient, is considered a donation contract. It should be noted that, under Canadian law, the fundamental principle of the conclusion of a gift contract is its gratuitousness.[26]
Paragraph 1 of Article 6.465 of the CC provides that the donation agreement shall be deemed concluded from the moment of transfer of the property to the recipient free of charge. The case law of the Supreme Court of Lithuania notes that a donation agreement is a bilateral transaction concluded between two parties expressing their agreed opposing will. With this type of contract, the donor transfers the property or property right to the property of the recipient free of charge, and the recipient accepts the gift by expressing his or her will. A grant agreement is not only gratuitous, unilateral, but also real, as an obligation to deliver property or a property right in the future is not considered a grant agreement. It should be noted that the contract for the donation of immovable property must in all cases be in notarial form. It should be noted that an agreement on immovable property is in simple written form, as the agreement alone cannot be considered as a gift, nor is it transferred and / or accepted. If the real estate gift transaction is not notarized and executed, the courts will not recognize such agreements as a gift contract.[27]
The rules of the donation agreement developed methodically. Under common law, all forms of personal property gifts are formalized by delivery and, unlike contracts, do not require the gift to be completed, although the gift giver intends to transfer the gift, it does not require communication. The transfer of a gift includes the object of the gift. According to the traditional approach,
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delivery must be "in the hands". In this case, the donor may change the alternative form of delivery - a constructive delivery of an item (such as a key) that provides access to the gift, or a letter describing the gift.[28]
According to Article 6.465 (1) and Article 6.471 (4) of the CC, the subject of the gift contract consists of objects of civil law that can be considered the subject of the sale-purchase contract, i. y. both movable and immovable property, as well as money, securities, property rights, and so on. Thus, the parties have the right to transfer both movable and immovable property by means of a gift contract, and the gift contract, like the contract of sale, also transfers ownership. The subject of the donation agreement may also be the assumption of the debtor's debt for a third party, or the release from the performance of a property obligation to the donor or a third party or the performance of an obligation for the awardee to a third party. The subject of the gift contract may be only such property which the donor owns at the time of concluding the gift contract. Pursuant to Paragraph 6 of Article 6.470 of the CC, a contract for the donation of property which does not exist at the time of concluding the contract or which will be created only in the future is not valid. As in the second part of Article 6.465 of the CC, the provision that the promise to donate property or a property right or to be released from a property obligation in the future shall not be considered a donation contract shall be observed.[29]
The subject of the donation agreement may be property that is considered to be in limited civil circulation, in which case the requirements of the relevant legislation must be observed, for example when donating a weapon. In this case, the Arms and Ammunition Control Act should be followed. As mentioned above, property rights can only be transferred by way of assignment of a claim. The third part of Article 6.471 of the CC states that when donating the right of claim, the requirements provided for in Articles 6.101 - 6.104 and 6.107 of this Code must be observed. Paragraph 4 of the same article states that when a donation occurs in fulfillment of the recipient's obligation to a third party or acceptance of the recipient's debt to a third party, the requirements provided for in Articles 6.50, 6.115, 6.116, 6.118 and 6.119 of this Code must be complied with.[30]
The donor may transfer personal services free of charge only by performing them and not by formalizing them as gifts. The substantive rules of these two subcategories also differ. However, when applying for support (donation) which the donor undertakes to provide but which is made by another party, contract law enters into force. The donor may formalize a donation contract such as a third-party beneficiary contract simply by applying a service contract with the provider, and the donor may terminate the donation at the same time without allowing the terms of the contract to be modified. It should be noted that the donation of real estate can be implemented by the donor only by preparing a written deed of donation.[31]
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For a donation contract with a value of more than one thousand five hundred euros, the law requires a written form, and the contract for the real estate or, when donating more than fourteen thousand five hundred euros, must be in notarial form. Such legal regulation helps to avoid distortion of the will of the parties to the gift agreement after the conclusion of the gift agreement -the transfer of the property subject to the gift - in the event of a dispute between its parties. It should be noted that the participants in civil relations have a general duty to exercise their rights and to fulfill their duty to act reasonably, in accordance with the standards of conduct established by the bonus pater familias, and to take care of the protection of their interests. Individuals who do not follow the procedure established by law in exercising their civil rights run the risk of not being able to defend their interests in court. A transaction concluded in violation of a notarial imperative is considered null and void, i. does not produce the legal effects sought by the parties to it; in the case of a transaction that is bilateral (contract), the risk of the consequences of its invalidity is borne by both parties to the contract.[32]
In summary, when donating real estate, such a donation agreement must in all cases be notarized. The donation of a house, apartment or land must be notarized. The fee for notarial acts is applied to the donation agreement, which has been approved by a notary, according to the 1996 Decree of the Minister of Justice of the Republic of Lithuania. September 12 order no. 57 "On Approval of the List of Fees for Notarial Acts, Preparation of Draft Transactions, Consultations and Technical Services".[33]
A donation is a gratuitous transaction whereby the donor transfers property or a right in rem to the donor's property after he has expressed his will to accept that property or right. At the same time, this contract is real, as it is considered concluded after the transfer of the donated item.
A conditional gift agreement, on the other hand, raises reasonable doubts as to its content. A more detailed analysis of this norm of the CC revealed reasonable shortcomings, which do not allow to classify such a contract as a gift, or such a contract is illegal, null and void. A conditional gift agreement is, in this case, more of a bilateral transaction in which the donor voluntarily seeks to improve the condition of the donor while providing for a condition, and the recipient must accept or reject such gift from the donor.
Actions condemnable from the point of view of good morals shall be determined by the court when deciding on the grounds for termination of the donation contract. The court must assess all relevant criteria, such as the personal characteristics of the parties to the gift agreement, the nature of the gift, etc., which may affect good morals and may be as severely condemned as an attack on or intentional serious injury to the donor or his close relatives.
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If the donor fails to comply with the condition specified in the donation agreement, the donor has the right to demand the fulfillment of the condition or the cancellation of the donation agreement and the return of property in court. The condition may stipulate that the donated property must be used for a specific purpose, without prejudice to the rights and lawfulness of other persons, the existence of the condition does not delay the conclusion of the contract.
Problematic situations related to the use of support and charity are usually because the person is not obliged to provide support, therefore support cannot be required, this type of contract must be voluntary and unpaid, and problems also arise from illegally obtained funds. recovery. In deciding this issue, the courts must determine the legality of the grounds for receiving support (charity). Problems of legal regulation also arise due to the conditions provided in the support (charity) agreements regarding the return of unused funds to the donors. ■
NOTES
[1] Dauti, A. (2019). Contract for Donation in the Roman Law and its Development in the Positive Law in Kosovo. Acta Universitatis Danubius Juridica. T. 3, p. 13-30.
[2] Titmuss, R. M. (2018). The gift relationship (reissue): From human blood to social policy. Bristol: Bristol university press.
[3] Mhoriev, M. S. (2020). The historical development of gift order regulation. Aeterna, p. 36.
[4] Kavoliūnaitė-Ragauskienė, E. (2019). Dovanos ir kyšio santykis: antropologinės implikacijos teisės sistemai. Vilnius: Teisės institutas.
[5] Shore, C., Haller, D. (2005). Introduction -Sharp practice: Anthropology and the study of corruption. London, UK: Pluto Press, p. 1-26.
[6] Mauss, M. (2017). The gift: The form and reason for exchange in archaic societies. London, UK: Rout-ledge, p. 4.
[7] Polo, L. (1996). Ethics. Towards a modern version of the classic subjects. Madrid: Editorial Union, p. 130-131.
[8] Zamagni, S. (2006). Motivational heterogeneity and economic behavior. The perspective of the civil economy. Madrid: Editorial Union.
[9] The Obligation of Gifts. Internet access: https://blogs.scientificamerican.com/anthropology-in-practice/the-obligation-of-gifts/, [last visited 2021 02 25].
[10] Millington, A., et al. (2005). Guanxi and Illicit Payments in Buyer-Supplier Relations in China: Analysing the Experience of UK Companies. J Bus Ethics, T. 57, p. 255-268.
[11] Argandoña, A. (2011). The "logic of gift" in busines. Corporate Social, University of Navarra.
[12] Mauss: ibid.
[13] Kesting, S. et. al., (2021). The Gift in the Economy and Society Perspectives from Institutional Economics and Other Social Sciences. London: Routledge.
[14] Rajak, D. (2006). The gift of CSR: power and the pursuit of responsibility in the mining industry. UK: Green leaf publishing.
[15] Lietuvos Respublikos civilinis kodeksas (Lithuanian civil code, 2001). Valstybės Žinios. 2000, Nr. VIII-1864. Nauja redakcija, TAR, 2021-12-31, Nr.82-0, 6. 465 str. 2 d.
[16] Drennan, W. A. (2016), Charitable naming rights transactions: gifts or contracts? MICH. ST.L.REV, p. 1267.
[17] Argandoña: ibid.
[18] Gloag, W.M. ir kt. (2007). The Law of Scotland. Edinburgh: W. Green, p. 147.
[19] German Civil Code BGB. Internet access: https://www.gesetze-im-internet.de/englisch_bgb/, [last visited 2021 02 20], 516 str.
[20] Grazhdanskiy kodeks Rossiyskoy Federatsii (chast vtoraya): Federalnyy zakon (1996). No 14- FZ [red. ot 23.05.2016] // Sobranie zakonodatelstva RF. - 29.01. - No 5. - st. 410.
[21] Donation agreements. Internet access: https://conservationtools.org/guides/28-donation-agreements, [last visited 2021 03 10].
[22] Reinstein, D. (2014). The Economics of the Gift. Discussion Paper Series: University of Essex.
[23] German Civil Code BGB, 2021
[24] Ambrasienè, D. ir kt. (2009). Civilinė teisė. Prievolu teisė. Vilnius: Mykolo Romerio universiteto Leidybos centras, p. 368-369.
[25] Order of the Civil Division of the Vilnius Regional Court of 27 June 2019 in civil case no. e2A-990-653 / 2019. Internet access: https://e-teismai.lt/byla/67055174874396/e2A-990653/2019e2A-990-653/2019, [accessed 20 January 2021].
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[26] The Concept of a Gift/Don. Internet access: https://www.justice.gc.ca/eng/rp-pr/csj-sjc/harmonization/siroi/gift2-don.html, [last visited 2021 02 20].
[27] Lithuanian civil code, 2001
[28] Hirsch, A. J. (2014). Formalizing Gratuitous and Contractual Transfers: A Situational Theory. WASH. U. L., T. 91, p. 815.
[29] Lithuanian civil code, 2001
[30] Ibid.
[31] Hirsch: ibid.
[32] Dambrauskaitė, A. (2009). Sandoru negaliojimo teisinės pasekmė. Vilnius: Justitia.
[33] Notary fees for property donation. Internet access: https://teisesvartai.lt/notaru-ikainiai/, [accessed 20 March 2021].
Lábjegyzetek:
[1] The Author is from the Kazimieras Simonavicius University (Lithuania).
[2] The Author is from the Kazimieras Simonavicius University (Lithuania).
[3] The Author is from the Kazimieras Simonavicius University (Lithuania).
Visszaugrás
