Professional Documents
Culture Documents
Report
Theme: Contract of Donation in the legal
sytem of republic of Moldova
Chiinu
2014
Table of Contents
Introduction................................................................................... 3
Legal nature of the donation.........................................................4
Definition of Donation Contract.....................................................5
Legal Characters and Pecularities of the Donation Contract..........5
Elements of the Donation Contract...............................................6
The Form of the Donation Contract...............................................8
Specific efects and the legal regime of the donation contract.......9
Termination of donation contract.................................................11
Conclusion..................................................................................13
Bibliography................................................................................ 14
Introduction
The donation, as a phenomenon, appeared long time ago, people were always making gifts to
the others. Donation can also be found in the Roman law, system from which the whole
contintental law system has been inspired. Though through the history and even today it is
qualified in different ways we can not negate the importance of the effects of the donation
contract.
The contract of donation comes from the concept of property itself. Thus, the property right
has some atributes, one of which is to be able to dispose of the good you are the owner of, this
atribute is called: ius abutendi. This possibility comes from the nature of property, the owner
being able not to use his good at all, he may transform it, destroy or transmit to the other person.
Everyone can dispose of hiw property in two different ways; with onerous title or with a free
title. When a good is transmitted with a gratuitous character, the one that transmits his rights or
goods does not have the aim to gain something in return for his transmission. In the Russian
Doctrine were expressed some opinions that this character is against the nature of the civil
relationship themselves, because it hasnt a patrimonial relationship expressed in gaining a
proffit. Analysing the transmission of goods with any reciprocal interest however was argued to
be considere a civil relationship, because despite the fact that the owner of the good actually does
not gain anything, the qualities of the good through the transmission remain the same. Some
authors state that there is no doubt and there is no reason to argue why donation shall be
considered as an object of civil law, this is an obvious fact. Even if usually only one of the
parties has obligations, the subjects of a donations are in a relationship of equality, there is no
subordination between them , this is wy it is no doubt about its civil character.1 Moreover what
would mean the right of ownership if the owner could not dispose of his good in the manner he
wishes and considers he should to2, the method of civil law is a dispositive one, parties can act as
they wish in the limist of the law. As a result, donation should be analysed in the light of the civil
law, in the way it is regulated in our legislation, and the legislation of other countries.
This thesis aims to examine what is legal regime of the contract of donation in the Civil Code
of Republic of Moldova, what are the problems that may appear and how it is regulated in other
1 , .. , .. , 2005
2 Bazele dreptului civil, Volumul IV. Contracte speciale, Ion Dogaru, Edmon Gabriel
Olteanu, Lucian Bernd Suleanu, C. H. Beck, Bucureti 2009
countries, in a comparative manner, in order to trace the shortcomings and to see what could be
the solutions.
in the Civil Code, a similar way of treating this subject, can be found in the Civil Code of
Germany.
Consensual character- Although the concept of donation contract stipulated by the Code
indicates the consensual character, it can be both real, as well as consensual. The contract of
donation is consensual whenever contains a promise to donate in the future (Art.830). In all other
7 Civil Code of Republic of Moldova, Nr. 1107 , 06.06.2002
8 Art. 572, Part Two No. 14-FZ of January 26, 1996, Civil Code of Russian Federation.
9 Art. 800, Romanian Civil Code, Law 287/2009 regardin Civil Code, 2011
10 Section 516, Civil Code of German Federal Republic
cases, the contract of donation has a real character, or is concluded in the time of transmission
(Art. 828)11, though our doctrine states that the single transmission of the good being not enough
for considering it a donation, there shall also be present the agreement, thing proven by article
828 (2) of the Civil Code, that states when a good is transmitted without the consent o the other
party, there can be established a reasonable term, during which the person that received the good
has the right to accept or refuse it.12 Such a regulation can be also found in the Russian and
German legislation.
Gratuituous character- Enreaching the patrimony of the donee, the donor does not seek to obtain
economic benefits. If as a the result of a contract of donation the donorbenefits from a
counterperformance, the donation shall be deemed simulated, respectively, null and void.
Unilateral contract- this pecularity, comes hand in hand, with the previous one, because it is
gratuituous, only one party has obligations, this making him an unilateral contract. Still it is
considered that in the cases of a conditioned donation this contract will have a sinalagmatic
character, because rights and obligations off the parties will be correlative.
Translating of ownership and irrevocable character- As a result of the donation, the rights of the
donor are transferred from his property to the property of the donee. Except the cases expressly
mentioned by the law, the donation contract can be canceled only based on the agreement of the
parties.13 This character in some legislation, as it is in the Romanian one, it is expressly provided.
The gratuitous character of the contract does not preclude the possibility for some conditions to
be present, this will be case of article 834, that refers to the conditioned donation. Thus parties
can agree that the donation take place when thegrantee will have to execute some tasks. This
tasks can also be of public utility. In this case, the gratuitous character will persist in this case
too, because donation will be considered the value of the donated good that excedes the value of
the task. The execution of the task, beside the donor can be asked by any other person in whose
Parties of the donation contract are the donor and the donee, thing which can be deducted
from the definition provided by the Civil Code too. As donors should be the subjects that are the
owners of the donated goods and have the necessary exercising capacity we should be careful
regarding the acts of donation that can be done by minors, applying the general normal from the
regulation of capacity of natural persons.
The Civil Code of Republic of Moldova provides what ar the subjects that can not act in the
quality of subjects of the cotnract of donation. Thus, it is not permitted the donation, with the
exceptions of insignificant ones, in the name of incapable persons. Another restriction is related
to owners, managers and workers of medical, educational, social assistance and other similar
institutions from the person that is placed in these institutions, or from the behalf of the spouse,
or other relatives of fourth grade of these persons. This rule, however it is not applicable between
relatives till fourth grade. Also, donation is prohibited between legal entities with coomercial
aim. The last case is related also to legal entities with commercial aim, when the object of
donation are securities (valori mobiliare).
Object of the contract, because it is an unilateral one, consists of the obligation to transfer the
donated good and the right of ownership.14
The material object or the derivated one is represented by the donated goods, that can be both
movable or immovable. These goods shall be present in the civil circuit, be possible, licit and
moral, to exist or will exist.15 A new regulation, that can be found in article 831, suggests us that
as object of the contract of donation could also be some periodical payments, that might be done
both in money and in kind. A similar provision can be found in the German Civil Code. A special
condition of the goods that represent the object of the donation contract is that they have to be
determinated or determinable. Thus, the Civil Code expressly stipulates that if the donor obliges
himself to transfer in the future his patrimony or a part of it, the contract will be void if there ar
enot specified exactly the goods that are deemed to be transmitted. The donation Contract that
stipulates the obligation of the grantee to pay debts or to execute tasks that do not exist at the
moment of the concluding of the contract is void, if the nature and the extent of the debts and
tasks are not mentioned in the cotnract. From this provisions, we can see, that in order for a
donation contract to be valid, it is necessary to be possible to determine exactly what is the
object of the contract. When speaking about the object, it is important to mention that the form of
the contract will depend on it too, this is why it is important to establish its regime.
14 Drept Civil. Contracte Speciale, Partea I. Dr. Dorin Cimil, Eugeniu E. Bejenaru,
Grafema Libris, 2014
15 Ibid. 2
The immediate cause of the donation contract (causa proxima), being a unilateral one,
consists of the intention of the donor to gratify, called animus donandi, which consists of the
enlargement of the patrimony of the donee from his own patrimony with a gratuituous title.
The mediate cause (causa remota) represetns the reason for which the donor transfers with a
gratuituous character a right to the donee. This reason in his turn, must be licit and moral,
otherwise donation will be void.16 In this sense, the gratuitousness of the gift does not mean that
it is causeless. However, in all these cases, the motive is beyond the scope of the donation
contract and does not affect its validity. If the motive is included in the content of the contract,
for example: giving or promising to give a formal commission due to any action by the other
party, it usually leads to the recognition of the nullity of the donation contract.17
16 Ibid. 14
17 Ibid. 1
After sending goods donation contract can be resolved in accordance with Art.83, related to the
rescission.18
The authenticated form asked in other legislation and in ours in case of the donation promise,
it is easily to understand as long as the donation contract has a gratuitous character, it is needed
to respect some special requierements, to ensure that the will of the donor was expressed freely.
However, in my opinion to impose such a form for every donation contract would make too
difficult to donate something, and this would somehow interfere with the right of the owner to
freely dispose of his good, even if this restriction would be also in his favor.
of the donee and on its behalf).20 This point of view can be found in our doctrine too,it is
speciefied that even if the contract of donation has a translative of ownership character, it is not
necessary that this rule be applied in all situations, it can be done not only through translating a
property buth thorugh athoer actions too if animus donandi is present and they may lead to the
growing of the patrimony of the donee from the donors one. We can name:
Remittance of the debt- an obligational relationship through which the creditor releases
voluntary the debtor from a part or from the whole his debt, without asking anything in return.
performance of the stipulate. The third party is the beneficiar of the gratification
Waiving of a right with the intention to offer an advantage to another person, that has the right to
gain that right based on the law
For the right qualificaiton of the cotnract it is important to establish if there is present the
intention of gratifying, and the intention of the donee to accept the good. Thus waiving of a right
without givind the possibility of other person to acquire it, does not constitute a donation.
Further we are going to analyse the specific of some casese in which there might appear
problems in the qualification of the cotnract.
Thus, between husbands there is possible to be concluded a contract of donation but only
regarding the goods that are individual property of oen of them, they can not done to each other
the goods that are already their common property.
If speaking about article 832 from the Cviil Code that refers to insignificaant gifts, these are
liberalities that people make with some ocasions, the value of these goods is otuside legal
norms, these acts are considered by the doctrine being non-legal acts. As an example of
insignificant gifts we can bring flower buouqets, photo albums, books, etc.
Habitual gifts, done with some ocasions, even if their value can be considered significant, like
offering an engagement ring, we still can not qualify it as a donation cotnract, because its
spiritaul value exceeds the material one. They are neither the object of the rules of revocation nor
of other rule applied to the donation contract.21 Romanian doctrine expresses a similar opinion,
thus it is considered that the prises, gifts and other rewards offered with publicity aims from the
20 Ibid. 5
21 Ibid. 14
merchants to their clients does not represent donations because they are not done from the
intention of gratifying, merchants can not allow themselves to be genrous in their professional
activity.22
Another aspect that has to be clarifiesd, is that even if our legislation uses the notion of
donation in the case of the transplant of organs, tissues and cells, it can not be assimilated as the
cotnract of donation as it is specified in the Civil Code. If we look at the provisions that regulate
this domain, they do not comply with the conditions that are mentioned for this cotnract, for
example it can be done even without the consent of the recipient, if he is not able to give it. So
we can see, that these legal relationship has a different nature and appears in other situations,
thus it can not be considered a genuine donation contract.23
From the fact that the donation cotnract is a liberality and is done with a gratuitous character
article 837 of the Civil Code provides that if the donor is in delay with the transmission of the
good the donee can not ask for a legal interest. This provision is only applicable to promises to
donate in the future (including donation in the form of periodic payments), when the contract is a
sum of money. According to general rules, the debtor isof a pecuniary obligation that is in delay,
according to Art. 619has to pay an interest. Based on the specifics of the contract of donation,
because the donor that increases the patrimony of the donee without for free, the mentioned rule
precludes the donee to demand interest for delay in execution of duty by the donor. At the same
time, the rule does not preclude the donee commented to require the repairmen for the real
prejudice that was caused, according to common rules concerning liability for the nonexecution
of the obligations because of delay.
with a grevious ingratitude or the donee refuses without grounded reasons to offer the owed
maintenance. From an analysis done of the mentioned line there are 3 situations. Being a
unilateral contract (excluding conditioned donations) , contract of donation does not generate
obligations for the donee, however there is present a duty, called the duty of " gratitude" .
Increasing the donee heritage for free , the donor is entitled to expect from the donee if not
gratitude, at least loyalty manifested by refraining from committing bad deeds to the donor.
Revocation of the donation because of an attempt on the life of the donor or his close relatives
can occur when there was an attempt to suppress physical the donor or someone from his close
relatives. Close relatives of the donor are considered family members and relatives up to the
fourth degree inclusive. The fact that the donee has committed an attempt on the life of the
nominees is a serious deviation from the leberality to gratify and it is natural that the donee in
this case is endowed with the right to revoke the donation. It does not matterweather there was
onlyan attempted murder or actually a consumed one and it is not requiered that a criminal
conviction was establishedfor the offense committed by the doneeThere shall be determined the
donor 's intention to kill. In situations where the attempt on life was committed recklessly or in a
state of irresponsibility, there is no grounds for revocation .24 Regarding the illict actions, there is
no explanation that would explain this term, in this case the corut will have to appreciate each
case in particular.
The right to apply these norms is an individual one and can be used only by the donor and his
close relatives. Paragraph 2 of this article concerns the legal consequences of revoking the
donation for ingratitude, leaving the donor to decide weather to ask a restitution of the property
donated or its equivalent in money . Revocation for ingratitude is recognized as a civil sanction,
not as a rescission of the contract, like in the case revocation of conditional donation ( Art.834 ),
when if the donee does not execute his task and the donor can revoke the donation. In the
relationships between the contracting parties donation revocation for ingratitude produces a
retroactive effect. The donation is deemed not to have existed , and for this reason the donee is
obliged to return the property donated. Since revocation donation for ingratitude is a personal
penalty against the donee, it shall not affect the rights of third parties. If the property does not
exist in nature or was alienated, the donee will be required to pay the value of the goods based on
the rules governing unjust enrichment.
Revocation of donation can only be done within a year from the moment the entitled to
revoke found the reason for revocation. Action to revoke the donation can not be filed against the
heirs donee or by the donor's heirs against the donee , except when the donor has died until the
deadline stated above passed.
24 Ibid. 6
Second case of termination was the rescission of the contract which is regulated in the article
836 of the Civil Code, thus it provides that: If the donor,after the execution of the donation, is
no longer able to ensure his proper maintenance and to fulfill his legal obligations of
maintenance towards third parties, he may ask the donee to return the goods that were donated
that he still posses. Refund request is inadmissible when the donor has caused intentionally or by
serious negligence his state of need. From this legal norm two aspects can be deducted that can
influence the restitution of the donated good. First one refers to the state of need that appeared
after the execution of the donation contract and the second one is referred to the possibility of
returning the donated goods that at that moment are in the posession of the donee. If the donated
goods do not longer exist or have already been alienated the rescission of the cotnract can not
take place. According to our doctrine, because Civil Code does not expressly state the right to
ask for a compensation when the goods can not be restituted, the donor can not ask for anything
in this case.25 When the goods is in the possession of the donee but it is encumbered with rights
of third persons, the donor will have to accept the good with all the encumbrances, without the
possibility of asking for compensations In comparrison with article 830 we can see that Civil
Code specifies expressly that this state of need has to be not provoked by the donor, stipulation
that is much stricter that in the case of donation promise.
Conclusion
By analysing the features, characteristics and specifics of the donation contract we can
conclude that this isa cotnract known for humanity for a very long time, however its nature has
not yet been elucidated. It is addressed by different legal systems in different ways and there are
different provisions, howver by the fact that it is regulated by every system and has always been
we can, for sure, conclude and emphasize its importance. Humans from the moment they gained
property they wanted to dispose of it, including in a gratuitous way and offering gifts to other
ones.
Of course, many of the specific provisions that regulate the regime of the donation contract
come from the fact that it is a gratuitous one, this is why it does not resemblance with other
inerous contracts, that represent the vast majority of categories of contracts in the Civil system of
contracts.
In conclusion, after stating what are the provisions in our Civil Code, we can actually say that
there are no legal gaps, the legal regime being clear, though there might appear different ways of
itnerpretation. Also by comparing its legal regime with the ones from other systems, we can say
25 Ibid. 12
that in comparrison with some of them donation contract is regulated totally different, however,
as long as Civil Law of republic of Mioldova is a continental one and is of German inspiration,
by comparing with the provisions of the German Civil Code, we can see that in the moldovan
legislation the regime of the donation contract is treated similarly with the german approach.
Bibliography
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