13.07.22 - 13:38 The contract of the donation yenidən baxılması

The contract of the donation.

                                                                  Lawyer Guliyev Aydin

The contract of the donation is one of the types of contracts with an ancient history. According to Article 666 of the Civil Code of the Republic of Azerbaijan, a contract of the donation is a contract into during his lifetime under which the giver enriches the done by donating a portion of his (her) property and such donation is not conditioned on any return service by the receiver. The contract of donation is considered to be concluded when the receiver accepts the donation. Citizens, the state, and legal entities can act as the parties to this contract as gift givers or  gift recipients. Citizens act as a party to a donation contract depends on the extent of their capacity to act, the legal regime of the donated item. The basis of the donation may be claim right, property rights(claims) to the donor or against a third person as well as the release of the gift recipient from property duties to the donor or against a third person. A person with capable to act can dispose of his property by way of donation if that property is not limited by the common property of the spouses or the right of inheritance. If the incapacitated person is capable of evaluating the nature and consequences of his actions, he can accept the gift and obtain it legally. However, if the legal representative has prohibited the acceptance of the gift or ordered its return, the gift is not got or is canceled. The fulfillment of moral or ethical obligations is not considered a donation. This contract expresses the giver’s voluntary desire so anybody is not to be forced in order to sign. In addition, giving present is the civil contract.

According to the opinion of some legal scholars, it is a one-sided agreement as the gift recipient has no obligations to the gift giver. There are motives to give present for example: support, help, motivate and so on. There are differences between the donation and retention agreement. As an example, the basis of the retention agreement is only movable objects (such as furniture), on the other hand, the basis of the donation contract is both movable and immovable objects( a home,a car). The donation is valid in the cases: immovable objects or rights to those objects, the contract is notarized; the gifts give to a recipient during the donation of movable items; if the gift is promised so as to give in the future, it should be notarized; and other situations which has been shown in the Civil Code. If something is given to someone as a gift, it can be returned until it reaches the recipient.

The donation can be depended on conditions or the fulfillment of obligations. The recipient can avoid realizing obligations if, after signing the contract, the recipient finds out the cost of the gift can't pay the fulfillment expense of the obligation and damage. In the case of the death of the donor, the donation is executed according to the instructions of the inheritance law. The giver is responsible of damage when it has been done gross or negligence. In other cases, the donor is liable for what promised to the recipient.

According to Article 673 of the Civil Code, the donor may refuse to donate in the following cases: the recipient commits a serious crime against the giver or his close relative; the recipient violates obligations on the family attitudes to the giver or one of his close relatives; the recipient avoids implementing his obligations without reason. Also, the giver is able to cancel the promise and refuse to execute in the following cases; if after the promise was made, the donor's property relations changed to such an extent that the donation could become an extremely heavy burden for him; after the promise has been made, when the donor’s obligations regarding family legal relations arise, which did not exist before or which were a little amount. The donation is refused, if the donated object is in recipient's possession, the gift must be given back by the recipient. The donation can be repealed without the need to the right of withdrawal in this cases; the promised item is lost or destroyed; if tender process is initiated for the property of the donor. What is more, when the grantor undertakes to perform services from time to time, this obligation is terminated by his death, unless otherwise stipulated.

Sources used:

1. The Civil Code of the Republic of Azerbaijan.