1. What is the concept of a property donation contract?
In common contracts, gifting property is a contract with unique characteristics… Giving property gives rise to a contractual relationship when the receiving party receives the property. A donation contract is an actual contract, after the parties have agreed on the donation without transferring property, and does not give rise to the rights of the parties. Therefore, the contract is considered signed when the parties transfer property. The time of property transfer is also the time of contract termination (for movable property). Article 457 of the 2015 Civil Code stipulates:
“A donation contract is an agreement between the parties, whereby the donating party hands over its property and transfers ownership rights to the donated party without requiring compensation, and the donated party agrees to receive it.” .
2. Legal characteristics of property donation contracts
A contract to donate property is a contract without compensation. This feature is shown in the fact that one party transfers property and ownership of assets to the donee, while the donee has no obligation to return any benefits to the giver.
A contract to donate property is a real contract. The actual characteristics of the contract are shown when the donated party receives the property, then the rights of the parties arise. Therefore, any agreement is not effective until the property has been delivered.
3. Object and form of donation contract
The object of a donation contract can be movable property (Article 458 of the 2015 Civil Code), or it can also be real estate (Article 459 of the 2015 Civil Code). The form of the donation contract depends on its object. If the object of the donation contract is movable property, the donation contract can be oral or written. If the object of the contract is property that must be registered for ownership or real estate, the form of the donation contract must be a document certified by a competent state agency.
The object of a donation contract can be property rights (the right to claim someone else). This situation is governed by the regulations on transfer of claim rights. After donation, the donee becomes the person with rights over the obligor.
The object of donation is land use rights. When donating land use rights, you must comply with the provisions of the Land Law.
4. Rights and obligations of the parties
4.1. The giving party
The donor is the person who owns the property. When donating, the donor has the obligation to notify about the defects of the donated property to create conditions for the donated party to use the property in the best way, anticipating the consequences when using the donated property. Donate, avoid possible damage.
In case the donor sets conditions before handing over the property or after handing over the property, those conditions must be achievable and not contrary to law or social ethics. If the condition to be performed is an obligation before handing over the property, and after the donee has fulfilled that condition, the donor must transfer the donated property. If the donor does not hand over the property, he/she must compensate for the expenses and efforts the donee has made or spent.
In case the donated party must fulfill a condition after being given a gift but fails to fulfill that condition, he or she must return the donated property he or she received (Article 462 of the 2015 Civil Code). The time to terminate the donation contract in this case is determined when the donated party completes the conditions of the contract.
4.2. The party receiving the gift
After agreeing on the basic content of the donation contract, the donated party has the right to receive or not receive the donated property.
The donation of real estate must be made in writing and certified by a competent state agency. If the property is registered for ownership, the recipient must register it with the competent authority.
For the donation of movable property, before the donation, although the parties have agreed, the donee has agreed to receive the property, but after making the contract, the donee has the right to refuse to receive the property because the contract has not been completed. legal value. While performing the contract, the donee still has the right not to receive the property. The donation contract terminates when the donated party receives the property.
For gifts of real estate where the contract has been made in writing and is authenticated or certified by a competent state agency, the property has not been transferred but the donor dies, the contract will terminate because Only the donor has the right to transfer property.
There are cases where the gift of real estate must be registered, the contract has been notarized or authenticated, the parties have performed the contract, the donor has transferred the property, the donor has died and the donee has received it. property but have not yet completed the registration procedure to transfer the name. Considering the nature of the matter, the parties have fulfilled their rights and obligations. However, legally, registration is a procedure for the State to protect the property rights of the donor. Therefore, the donated party does not have ownership rights donated property, because the contract has not yet taken effect (Article 459 of the 2015 Civil Code).
Article 462 of the 2015 Civil Code regulates increases for conditional assets. For a conditional donation contract, the donor can request the donee to perform one or several civil obligations before or after the donation. However, the conditions offered by the donor must not violate the law or social ethics.
If a person must perform an obligation before being given a gift and this person has fulfilled the obligation as required but the donor does not deliver the property, the donor must pay the obligation that the donee has performed.
In cases where obligations must be performed after donation but the donee fails to perform, the donor has the right to reclaim the property. If the recipient cannot return the donated property because the property has been destroyed or damaged, he or she must compensate for the damage.
