Gift contract: the challenge of safeguarding the charitable purpose from misuse

1. Introduction

With the gift contract, the donor is obliged to transfer or hand over to the gift recipient a certain object in ownership, or to assign a right, or to release a debt, or to take over a debt without compensation.³ A gift is constituted by clear intention of the donor to transfer his interest in property together with physical or symbolic delivery.⁴ It is a legal action by which the holder of the property right voluntarily transfers this title together with the possession of the thing to someone else, without asking for something in return. Through the gift, the donor voluntarily adds to the beneficiary’s wealth and does so motivated by the spirit of kindness and generosity. It follows from the legal term of the gift contract that it, on the one hand, is a legal basis for acquiring the right of ownership over an item, while on the other hand it is a basis for transfer of rights, from one side to the other, i.e. transfer of claim and takeover on debt. A gift can be made subject to certain conditions. It is necessary that these conditions must be valid conditions according to the provisions of the Law on Obligations.
Where an unconditional gift-deed and an agreement between the donor and donee were executed on the same day, it was held that the condition prescribed in agreement would attach to the gift as the gift-deed and the agreement formed part of the same transaction.⁵ Apart from the express intention of the donor to transfer his property gratuitously, the contract of gift also requires acceptance of the gift by the donee or other person qualified to accept on his behalf. It follows that the contract of gift is a bilateral
juristic act which requires the declaration of intention by both parties to be legally effective.⁶ As in the case of other ordinary contracts, it is based on an offer (by a donor) that is accepted (by a donee). Prior to acceptance by the donee, the contract is not formed and the donor may still decide to cancel the gift. Upon delivery of the property, however, the gift becomes property of the donee and it cannot be revoked merely on the will of the donor unless expressly permitted by law……Continua a leggere