ДОГОВОР ДАРЕНИЯ В СИСТЕМЕ ГРАЖДАНСКО-ПРАВОВЫХ СДЕЛОК

Костюк И.В.

orcid.org/0000­0001­7824­77, Кандидат юридических наук, доцент Набережночелнинского института Казанского (Поволжского) федерального университета

ДОГОВОР ДАРЕНИЯ В СИСТЕМЕ ГРАЖДАНСКО-ПРАВОВЫХ СДЕЛОК

Аннотация

Целью статьи является определение места договора дарения в системе гражданско-правовых сделок отчуждательного характера посредством использования эмпирического подхода и метода сравнительно-правового анализа. Современный этап реформирования законодательства представляет собой формализацию правил поведения с учетом фактора гражданского права как регулятора общественных процессов на основе диспозитивного подхода и дозволительной направленности. Интерес в этой связи к договору дарения обусловлен его значением и ролью в системе средств правового регулирования отношений в обществе.

Keywords: дарение, сделки по отчуждению, вещный договор, безвозмездность.

Kostyuk I.V.

orcid.org/0000­0001­7824­7773, PhD in Jurisprudence, associate professor, Kazan (Volga) federal university, Naberezhnye Chelny institute (branch)

THE GIFT CONTRACT IN THE SYSTEM OF CIVIL TRANSACTIONS

Abstract

The purpose of the article is to determine a place of a gift contract in the system of civil transactions on alienation using empirical approach and method of comparative legal analysis. The modern stage of reforming of legislation is formalization of rules of conduct considering civil law as a regulator of social processes on the basis of discretionary approach and permissible directivity. In this respect, interest to gift contract is caused by its meaning and role in the system of means of legal regulation of relationships in society.

Keywords: gift, transactions on alienation, property agreement, gratuitousness.

The gift contract is a gratuitous transaction on transfer of a thing, property right or relief of property duty to the ownership of another person (paragraph 572 of the Russian Federation Civil Code). [6] In the system of civil transactions, transactions on gift refer to transactions on alienation. [1]

In case of gift of the thing, general provisions of sale and purchase agreement are applicable to it, namely: provisions of the paragraph 455, 129 of the RF Civil Code on conveyance of the object that is gifted; paragraph 456 of the RF Civil Code on simultaneous transfer of belongings and documents relating to a gifted thing; paragraph 460 of the RF Civil Code that stipulates transfer (alienation) of property free from third persons’ rights and others. [5, 6]

At the same time, there are some peculiarities in application of general provisions on sale and purchase agreement to provisions on the gift contract.  One of adverse consequences of product transfer according to sale and purchase agreement without belongings and accompanying documentation (technical specification, abstracts, operation manual and so on) is refusal of purchaser from the agreement.

In the case of the gift contract, a donee can refuse the gift before delivering it, and in the presence of damage done caused by defects of the gifted thing the donee has a right to lay demand on the donor in compliance with the rules of the chapter 59 of the RF Civil Code “Obligations in consequence of infliction of harm”. Regulations on obligations in consequence of infliction of harm are applicable to the donor in presence of totality of the circumstances: defects of the thing are not obvious, appeared before delivery of object of the contract to the donee and if the donor knew about its defects, but did not warn the donee about it (paragraph 580 of the RF Civil Code). Accompanying and technical documentation is an integral part of the product in itself and, although one should distinguish between defects of the product and defects that appeared because of wrong use of the thing, we see causal relationships of its occurrence. The donee that use the gifted thing having no application instructions can do damage to his or her health, life and property.

In above-mentioned situation, it will be unlikely to bring to account a donor, but if defects of thing can be determined when comparing characteristic of the thing and its description in accompanying documents, in the presence of ternary characteristics according to the paragraph 580 of the RF Civil Code donee can demand reparation of damages from donor. The variant is likely to be hypothetic, an ancient proverb that as well as possible characterizes such situation comes to mind: “One should not look a gift horse in the mouth” that means it is grossly indecent to lay claim to quality characteristics of the gift.

A peculiarity of the gift contract in relation to sale and purchase agreement is enshrined in the object of the agreement. Sale and purchase agreement obliges a purchaser to do consideration and to accept the product. Acceptance of the goods is a certain regulation and as a rule is subject compulsory to implementation. With respect to the gift contract, obligation to meet it is projected only to the donor. Actions of donee are restricted by the possibility to refuse the gift before its delivery; acceptance of product (thing) is not envisaged; a consequence will be the impossibility to refuse the thing after receiving it.

The thing that is delivered as a gift cannot be encumbered by third parties. A legislator sets a number of restrictions of gift that are related also to disposal of thing, property rights holders of which are not owners or one of co-owners in joint property law. [2] Restrictions are procedural, suppose coordination of gift contract. So, a corporation that possess a thing on the basis of the right of economic or operating management, has a right to present this thing with consent of owner, and possessor of joint property has a right to gift the thing with consent of other co-owners (paragraph 576, 253 of the RF Civil Code).

As a rule, gift contract is a real transaction and can be made by word of mouth and also by implicative actions by virtue of giving an object of gift to the donee. [3] Written execution of the gift contract is required in case of concluding the contract of promise to gift in future, it is necessary to indicate specific object of gift.  If this provision is not met, the gift contract is invalid.

An agreement will be acknowledged as invalid if therein delivery of property or property right within gift is supposed after death of the donor. One can dispose of property in case of death only through conclusion of last will and testament. One more peculiarity of the gift contract opposed to last will and testament is a demand to state a specific object, property right, release from liability in the gift contract, whereas in last will and testament a common record of delivery of property under last will and testament, without detalization of specific property is possible.

If delivery of property on the basis of the gift contract failed because of sudden death of the donor or donee, paragraph 581 of Civil Code supposes the rules of legal succession, namely, rights under the gift contract do not transfer to successors of the donee, unless otherwise provided. At the same time, heritors of the donor are obliged to perform the gift contract from estate of the donor after accession to the heirship. The donor has a right to specify condition on cancellation of gift if he will outlive the donee.

The gift contract has a restriction of application depending on legal capacity, cost and kind of property that is gifted. Norm of the paragraph 575 of the RF Civil Code establishes prohibition on gift. First of all, prohibition on gift is established in regard to juvenile and legally incapable citizens – such persons cannot be donors. Concerning donees prohibition on gift regards to officials of educational and social institutions, public and local authorities. Prohibition is aimed at suppression of unethical practices and corrupt activities.

The third group of persons concern which prohibition on gift is established are profit organizations. This prohibition is connected with economic nature of activity of commercial organizations where the main goal is systematic profitmaking, obtain of added value, income. Carrying out of free of charge transactions contradicts to its nature and can be used by unscrupulous entrepreneurs with the aim not to fulfil obligations, to reduce taxable profit.

The gift contract is one of unique kinds of civil contracts when it comes to cancellation of transaction. General provisions for cancellation (termination) of contract are not applicable to it. So, the donor has a right to cancel to execute the gift contract for the future only on conditions of significant changes of his or her quality of life, health arose after concluding of the contract or in the presence of fact that the donee attempted on the donor’s and his relatives’ health.

It is possible to cancel gift in presence of fact of deliberate attempt on the donor’s life and health and threat of irreparable loss of the thing that is the object of gift. Within bankruptcy of economic agents, cancellation of gift is also possible if the transaction violates principles of legitimacy and law enforcement. It should be noted that refusal to execute the gift contract and cancellation of gift are not applicable to common gifts of low cost.

Legislator differentiates special kind of gift – charitable gift. Difference from usual gift is that property or property right is delivered for socially useful purposes and can be subjected to use by social institutions, cultural institutions, charitable organizations and state.  [4]

On the basis of the foregoing one can classify gift according to different foundation.

1. By the moment of creation of rights and obligations, the gift transaction can be real and consensual.
2. By the form, it can be oral and written. Written transaction in its turn can be simple and qualified.
3. By the aim of gift: socially useful purposes, with instruction for concrete use of the gift object and without indication of designated use.
4. By terms: with delivery of property, property right (exemption from obligation) immediately and for future.
5. By conditions of gift: unconditioned and subject to a resolutory condition.

One can also classify gift transactions depending on subject matter, object of gift, restrictive or prohibitive properties of the gift contract.

The construction of the gift contract has similar traits with other forms of disposal arrangement such as debt release, refusal from property right, cession and others that causes some difficulties in determination of legal nature of transaction used by the subjects of civil circulation and stream of commerce. Characteristic of the gift contract and its varieties lets divide this construction of similar and protect interests of the parties concerned.

Список литературы / References

1. Chulyukova S.A., Belonovskaya I.D. Dogovor dareniya v sisteme dogovorov o peredache imushchestva v sobstvennost // Sovremennye problemy nauki i obrazovaniya. Izdatelskiy Dom “Akademiya estestvoznaniya” № 6, Penza. 2014. – S. 1722.
2. Trofimova G.A. Pravovaya sushchnost veshchnogo dogovora cherez prizmu konstruktsii dogovora dareniya // Zakonodatelstvo i ekonomika № 11, Moskva. – 2015. – S. 43-47.
3. Maleina M.N. O dogovore dareniya // Izvestiya vysshykh uchebnykh zavedeniy № 4, Izd-vo: Sankt-Peterburgskiy gosudarstvennyy universitet, 1998. – S. 129-133.
4. Murzin D.V. Dogovor dareniya: glava v knige “Grazhdanskoe pravo” // Uchebnik v 2 tomakh. Pod redaktsiey B.M. Gongalo. Moskva, 2016. Izd-vo: OOO «Izdatelstvo “STATUT”, S. 213-220.
5. Grazhdanskiy kodeks Rossiyskoy Federatsii (chast pervaya): Federalnyy zakon ot 30.11.1994 № 51-FZ [red. ot07.2016] //Sobranie zakonodatelstva RF. - 05.12.1994. - № 32.
6. Grazhdanskiy kodeks Rossiyskoy Federatsii (chast vtoraya): Federalnyy zakon ot01.1996 № 14- FZ [red. ot 23.05.2016] // Sobranie zakonodatelstva RF. - 29.01.1996. - № 5. - st. 410.