Gift
Gift is a contract through which the donor is entitled to the disposition of his property to another without consideration. The donor has the right to, without relinquishing the intent to donate, impose the fulfillment of a specific obligation on the donee.
Gift is not concluded unless accepted by the done or his representative. In case the donor was either the donee’s legal guardian or his testamentary guardian, he acts on his behalf regarding both accepting the gift and taking possession of the gifted property.
A gift shall be made by an official instrument; otherwise, it shall be null and void unless it is made under the guise of another contract. Despite that, in case of movable property, a gift may be made by delivery without the need for an official instrument.
If the donor or his heirs voluntarily perform a gift that is void due to a defect in form, they shall not be entitled to recover what they have delivered. The promise to a gift shall not be valid unless it is made by an official instrument. If a gift is made in respect of a specific property that is not owned by the donor, the provisions of articles 466 and 467 shall apply. A gift of future property shall be null and void. If the done has not taken possession of the gifted property, the donor shall be obliged to deliver it to the done, and the provisions related to the delivery of the sold property shall apply.
The donor shall not warrant the title to the gifted property unless he has intentionally concealed the cause of eviction or the gift is made for consideration. In the first case, the court shall award the donee fair compensation for the damage suffered. In the second case, the donor shall warrant title only to the extent of the consideration paid by the donee. All of the above shall apply unless otherwise agreed. If the gifted property is evicted, the donee shall be subrogated to the the donor’s rights and claims.
The donor shall not warrant that the gifted property is free from defects. However, if the donor intentionally conceals the defect or warrants that the gifted property is free from defects, he shall be liable to compensate the donee for the damage caused by such defect. Also, the donor shall be liable for compensation if the gift is made for consideration; provided that, the compensation shall not exceed, in such case, the amount of consideration paid by the donee. The donor shall be liable only for his intentional act or gross negligence. The donee shall be obliged to perform the stipulated consideration, whether such consideration is stipulated for the benefit of the donor, or a third party, or the public interest. If it appears that the value of the gifted property is less than the stipulated consideration, the donee shall not be required to provide consideration exceeding the value of the gifted property.
If the donor stipulates that the donee shall pay his debts as consideration for the gift, the donee shall be obliged to pay only those debts existing at the time of the gift, unless otherwise agreed. If the gifted property is subject to a real right securing a debt owed by the donor or by another person, the donee shall be obliged to satisfy that such debt, unless otherwise agreed. The donor may revoke the gift if the donee consents thereto. But, if the donee refuses to consent, the donor may request the court for authorization to revoke the gift, provided that the request is based on an acceptable excuse and that there is no ground preventing revocation exists.
Acceptable grounds for the revocation of a gift are:
1. The donee fails to perform his obligations toward the donor or toward one of the donor’s relatives, where such failure constitutes a gross ingratitude by the donee.
2. When the donor becomes unable to provide for himself basic means of living consistent with his social status, or becomes unable to fulfill maintenance obligations imposed upon him by law towards others.
3. The donor is blessed with a child after making the gift, provided that the child remains alive until the time of revocation, or if the donor has a child whom he believed to have been deceased at the time of making the gift, and the child is later discovered to be alive.
The request for revocation of a gift shall be denied if any of the following grounds exists:
1. Where the gifted property has been increased by an inseparable addition that enhances its value. If such ground is removed, the donor’s right of revocation shall be restored.
2. Where either party to the gift contract has died.
3. Where the donee has made a final disposition of the gifted property. If the disposition is limited to only a part of the gifted property, the donor may revoke the remaining part of the gift.
4. Where the gift was made by one spouse to other, even if the donor seeks revocation after the dissolution of the marriage.
5. Where the gift was made to a relative within the prohibited degrees of kinship (mahram).
6. Where the gifted property has been destroyed in the possession of the donee, whether such loss resulted from the Donee's act, a force majeure event beyond the Donee's control, or ordinary use. If only part of the gifted property has been destroyed, the remaining part of the gift may be revoked.
7. Where the donee provides consideration in exchange for the gift.
8. Where the gift constitutes a charitable donation or an act of benevolence.
The revocation of a gift, whether by mutual consent or by judicial proceedings, shall render the gift as if it had never been made. The donee shall not be obliged to return the proceeds of the gifted property except from the date of the agreement to revoke the gift or from the date on which the action is filed. The donee shall be entitled to recover all necessary expenses incurred by him, however , in respect of beneficial expenses, he shall only be entitled to reimbursement to the extent that such expenses have increased the value of the gifted property.
If the donor takes possession of the gifted property without mutual consent or a court order, the donor shall be liable to the donee for the loss of the property, whether such loss results from the Donor’s act, an external event beyond the Donor’s control, or its use. However, if a judgment ordering the revocation of the Gift is rendered and the gifted property is destroyed in the possession of the donee after the donee has been formally notified to deliver it, the donee shall be liable for such loss, even if it results from an external event beyond his control.