Unilateral gift agreement: concept, types, features

Article 572 of the Civil Code of the Russian Federation interprets a gift agreement as a transaction in which one party (the donor) transfers, or promises to transfer a thing, property right or claim, to the second party (the donee), or releases the latter from a property obligation to himself or by a third party.

Due to the fact that the process of gifting is accompanied by an agreement (oral or written), which expresses the will of the two parties, it is a bilateral transaction. The person’s consent to accept the gift is reflected in the contract by signature.

Information

In legal science, there is an opinion that donation is a one-sided transaction. It is based on the fact that the emergence of property rights in the recipient does not entail any obligations for him in relation to the donor.

The essence of the contract, as a complex phenomenon in law, causes controversy and disagreement. One of these issues is the donation of property with the right of residence of the former owner or the preservation of an easement.

The former owner can donate housing to another person, while retaining his right to live in it. Such a transaction differs from an annuity agreement in the absence of payments from the person receiving the gift.

An easement is a limited right to use a land plot, established in agreement with the owner or through the court (for example, the use of a land plot by a neighbor to carry out certain work on his land). This type of encumbrance does not prevent the full disposal of real estate, including the possibility of its alienation.

In both cases, we are not talking about a counterclaim on the part of the owner. An easement or right of residence is not a requirement that arose when the contract was drawn up; it is an encumbrance that arose before the conclusion of the agreement to accept the gift in precisely this specific state.

What is donation?

A donation is a transaction according to which the owner transfers property to the donee free of charge.

The procedure is characterized by several signs:

1. Gratuitous. Transfer of a gift under conditions is prohibited. The donor has no right to demand money or valuables from the recipient - in such cases a purchase and sale agreement is concluded. If instead a gift agreement (hereinafter referred to as DD) is drawn up, but in fact the owner receives money for the property, the transaction is considered sham and invalid (Article 170 of the Civil Code of the Russian Federation).
2. Mutual agreement. The owner is obliged to transfer the gift after execution of the document, or after some time. The second person will need to agree to accept the gift. He has the right to refuse at any time before receipt (Article 573 of the Civil Code of the Russian Federation). In the case of an oral DD, the refusal is made orally; in the case of a written DD, the refusal is made in a similar form.
3. Objectivity. In a written deed of gift, reference to the item - a gift - is required. If the procedure is performed by a representative, you will need to indicate the subject and personal data of the recipient. The absence of an object is the basis for declaring the procedure void.
4. Reduction of the donor's property. He has the right to donate valuables that belong to him as property. Alienation of other people's belongings is prohibited.
5. Increase in the donee's property. Due to gratuitousness, he receives valuables completely free of charge. The only cost is registration of ownership, if real estate is donated: a state duty is paid for this.

The donation is made orally or in writing. Oral delivery is sufficient if movable property is alienated. To transfer a gift worth over 3,000 rubles. from a legal entity, as well as real estate or when promising a donation in the future, a written form is required (Article 574 of the Civil Code of the Russian Federation).

The donee as a party to the transaction

The law does not contain any special requirements regarding legal capacity. It is enough that the donor or beneficiary under the donation agreement meets the requirements of the following. 2 of the Civil Code of the Russian Federation “Persons”. According to domestic legislation, it is impossible to give anything to an animal or, for example, to an organizationally unformed community of people.

Attention

Children under 6 years of age and incapacitated persons accept gifts through their parents/guardians.

In accordance with Art. 28 of the Civil Code of the Russian Federation, minors over the age of 6 years have the right to enter into transactions aimed at obtaining benefits for them free of charge, if they do not require notarization or state registration.

Persons with limited legal capacity , according to Art. 30 of the Civil Code of the Russian Federation, are not infringed on the right to enter into gift agreements as donees.

A number of regulations prohibiting donation are contained in Art. 575 of the Civil Code of the Russian Federation. According to its contents, persons who are supported, treated or under the care of educational, medical institutions, and social service organizations are limited in giving gifts worth more than 3,000 rubles. for the benefit of their staff.

Article 575 of the Civil Code of the Russian Federation prohibits persons holding government positions, civil servants and municipal employees, and employees of the Central Bank from accepting gifts worth more than 3,000 rubles . in connection with the performance of their official duties. An exception is made only for the so-called “protocol gifts”, which are de facto accepted by officials, and de jure become the property of the government body in which they serve.

Gift agreement: one-sided or two-sided transaction?

Now let's figure out what kind of deal this is - unilateral or bilateral. In legal practice there are several interpretations. While some adhere to the first option, others reasonably consider this a two-way procedure.

Let's turn to Art. 154 Civil Code of the Russian Federation:

• A document is considered unilateral, according to which the will of the property owner is sufficient;
• a bilateral transaction is a transaction that requires the consent of the will of both parties;
• a multilateral procedure requires agreement between three or more citizens.

According to the Civil Code of the Russian Federation, DD is considered one-sided, because places obligations on only one person – the donor. However, without the consent of the recipient to accept the gift, the transaction is not possible. Another argument in favor of two-sidedness is the possibility of refusal by the recipient.

How to draw up a debt gift agreement?

Is a gift agreement valid after the death of the donor?

Inadmissibility of donation after the death of the donor

A promise to make a gift after the death of the donor is invalid and such a transaction is considered void .

The essence of the deed of gift is that the person who has the right of ownership alienates his property or right, voluntarily and free of charge to the other party. As stated in Art. 572 of the Civil Code of the Russian Federation, the donor “ transfers ” property, which means he deprives himself of any rights to the object of gifting and alienates them to the other party.

In the event of the death of a citizen, he loses ownership of all property belonging to him and it becomes the property of his heirs, and they can refuse the inheritance and it will pass to the next relatives in order of priority. It is impossible to give anything after death.

If a person wants to transfer certain property after death, then such actions fall under inheritance legal relations. In addition, donation involves the transfer of only the right to property, in contrast to inheritance, in which universal succession occurs, that is, all the debts of the testator also pass to the legal successors. In addition, the transfer of rights to inherited property is associated with the fact of the death of a citizen, and not with the desire to give something to another person.

The only mention in the legislation of the transfer of a gift in the event of death is Art. 581 clause 1 of the Civil Code of the Russian Federation, which allows to be transferred to his heirs when concluding consensual donation agreements. In order to realize the above possibility, it is necessary to include in the agreement a condition regarding the succession of the heirs of the person to whom the gift is intended.

The procedure provided for by law is dispositive in nature and allows the parties to independently determine the fate of the gift in the event of the death of the recipient. At the same time, as a general rule , in the event of the death of the person to whom the gift is promised, his rights do not pass to the heirs.

Additionally

The heirs of the donor are obliged to take actions to implement the gift transaction that their deceased relative wanted to implement. Thus, we can conclude that the unilateral obligation of the transaction also applies to the legal successors of the property owner.

Types of unilateral gift agreement

If we consider a document from a generally accepted point of view as one-sided, then it comes in two types:

• real;
• consensual.

Let's look at everything in detail with examples.

Real

A real contract is considered to be concluded from the moment of actual transfer, i.e. fulfillment of obligations by the owner.

The recipient's right to the thing arises immediately after delivery. The exception is real estate: it becomes property from the moment of state registration.

Important! Until the transfer of the gift, the real DD is considered unconcluded. There is no civil liability for the owner in case of refusal of obligations. Even if there are signs of insignificance, imaginary or pretense, such a transaction cannot be considered invalid.

Case study:

The woman gave her daughter a car orally - written form is not necessary here. The moment of conclusion is the handover of keys and title documents.

Consensual

A document concluded after the terms have been agreed upon by citizens is considered consensual.

Unlike the real one, it can be canceled at any time before the delivery of the valuables. It is considered concluded from the moment the document is signed by the owner and the donee, and is two-sided.

Case study:

The man issued a deed of gift for his son, donating an apartment. Written form is required, as is notarization. The document is considered concluded on the day of signing. However, the recipient will have ownership rights only after contacting Rosreestr to re-register the documents.

When is a deed of gift recognized as unilateral?

The procedure is one-sided when drawing up a consensual DD, because Obligations arise only for the donor.

A citizen has the right to accept the thing or refuse it before receiving it. In reality, people have rights and responsibilities at the moment of transfer.

How is it different from the real one?

Both types of obligations are direct opposites. Based on established judicial practice and general rules of law, we have collected how a real contract differs from a consensual one, and highlighted the positive and negative points in the table:

Depending on the nature of the subject around which legal relations are built, the transaction is classified into different types. For example, a rental agreement for a vehicle (without crew/with crew), which is real, does not apply to consensual agreements. At the same time, the lease of real estate is consensual. Both are included in the same group of agreements - rent.

What can be given as a gift under a unilateral agreement?

You can give any valuables that belong to the donor by right of ownership:

• real estate: apartment, house, land, buildings, structures;
• movable property: car, money, shares, jewelry, etc.;
• right to claim debt;
• debt obligations of the recipient (notification of the creditor will be required).

Alienation of a share in the authorized capital is also allowed, but the consent of the remaining owners will be required if this is provided for in the organization’s charter.

Features of donating real estate

Real estate is any property that cannot be actually transferred “into hands” without destruction: houses, apartments, etc.

If a private house is donated, the land plot on which it is located is also transferred to the recipient: separate alienation is not allowed.

There are other points:

1. If the property was purchased during marriage, you will need the notarized consent of the spouse. The exception is the presence of a marriage contract, according to which everything belongs to the donor.
2. The transfer of ownership is subject to state registration. The procedure must be in writing.
3. You cannot give housing to children under 18 years of age.
4. To alienate a share, the consent of the remaining owners is not required; notarization is required.

Lawyer's advice: to donate real estate, pay off all debts for housing and communal services in advance and write out all the people. Otherwise, the donee may have problems when he becomes the owner.

Features of a deed of gift for movable property

Any property that is not related to real estate is considered movable: a car, bank deposits, securities, etc. To transfer such valuables, a written form is not required.

An exception is the presentation by a legal entity of a gift worth more than 3,000 rubles: everything must be documented in writing.

Oral DD is considered real, because lies at the moment of receiving the gift. Written – consensual: it is considered concluded on the day of signing.

The gift agreement as a gratuitous transaction is relevant not only for citizens, but also for companies. Giving is often expressed in the form of debt forgiveness. But not every gratuitous transaction can be considered a gift. Let us analyze how to correctly qualify such transactions and avoid negative legal consequences when concluding them, based on judicial practice.

A gift agreement is a consensual bilateral gratuitous transaction. Donation is not limited to the free transfer of a thing: the donor transfers or undertakes to transfer to the donee a property or a property right (claim) to himself or a third party free of charge, or releases or undertakes to release him from a property obligation to himself or to a third party (clause 1 of Art. 572 of the Civil Code of the Russian Federation).

A gift agreement also recognizes a promise to donate a thing, a property right or to release from a property obligation, provided that it is made in simple written form and contains a clearly expressed intention to complete this transaction in the future (clause 2 of Article 572 and clause 2 of Article 574 of the Civil Code RF). The promise of a gift, by its legal nature, is a unilateral transaction and binds the donor with a corresponding obligation (Article 153, paragraph 2 of Article 154 and Article 155 of the Civil Code of the Russian Federation). The donee has the right to demand that he fulfill this obligation in accordance with Art. 156, 309 - 310 Civil Code of the Russian Federation.

In practice, participants in civil transactions try to put it in the form of a bilateral transaction or a document expressing a promise of donation (receipt, obligation, etc.) in order to obtain the donee’s signature in acquaintance with its terms (resolution of the Presidium of the Trans-Baikal Regional Court dated January 15, 2015 N 44g-2 -2015). In another case, the court came to the conclusion that the donor had no grounds for failure to fulfill obligations under the agreement on the promise of a gift, and ordered him to transfer the thing to the donee (Appeal ruling of the Nizhny Novgorod Regional Court dated January 31, 2017 N 33-1029/2017).

The terms of such a transaction must be formulated clearly and unambiguously so that the court has no grounds in the event of a dispute to refuse to satisfy the donee’s claim to compel the donor to fulfill his obligations.

Example 1. The donor drew up a bilateral agreement with the recipient, which he named as a guarantee obligation, accepting the obligation to re-register an apartment and a car as a gift to him or his relatives. It did not directly follow from the content of the agreement that it was about the transfer of property, that is, about the execution of the main transaction. Therefore, the court qualified the agreement as a preliminary contract and, since the period for concluding the main contract had expired, declared the donor’s obligation terminated.

(Appeal ruling of the Moscow Regional Court dated August 31, 2016 in case No. 33-23874/2016)

Indeed, an indication of the re-registration of property presupposes the conclusion of an appropriate agreement, within the framework of which the transfer of ownership of this property will take place. Therefore, in the above example, the court reasonably qualified the disputed agreement as preliminary. Thus, it is in the donee's interests to transfer the agreements into a bilateral agreement in order to strengthen his position in the event of a dispute.

The gift agreement can be concluded orally. An exception is cases when the donor is a legal entity and the value of the gift exceeds 3,000 rubles, the contract contains a promise of a gift in the future, or its subject is real estate, the transfer of ownership of which is subject to state registration (Article 574 of the Civil Code of the Russian Federation). In other cases, the transfer of a gift is carried out through its delivery, symbolic transfer (handing over keys, etc.) or delivery of title documents.

Example 2. The recipient took the car given to her, having the foresight to videotape the conversation with the donor. It showed her thanking him for the gift, and the car itself was decorated with beautiful balloons and colorful ribbons. The defendant subsequently argued during the trial that the voices in the video recording were unintelligible. But the court found this argument unconvincing, leaving the car to its lucky owner.

(Appeal ruling of the Supreme Court of the Republic of Tatarstan dated April 21, 2016 in case No. 33-7271/2016)

Debt forgiveness as a form of gift

A type of gift is debt forgiveness, when the creditor releases the debtor from fulfilling his obligations.

Debt forgiveness is permitted if it does not violate the rights of other persons in relation to the creditor’s property by virtue of Art. 415 of the Civil Code of the Russian Federation. The absence of the creditor's intention to reward the debtor may be evidenced, in particular, by the relationship between debt forgiveness and the creditor's receipt of property benefits under any obligation between the same persons (Definition of the Supreme Arbitration Court of the Russian Federation dated February 28, 2011 N VAS-255/11).

Property benefits can consist of anything, for example, a focus on further cooperation, expressed in the conclusion of an agreement for subsequent periods (resolution of the Federal Antimonopoly Service of the West Siberian District dated December 12, 2011 in case No. A46-5477/2011), the right to lease premises using preferential rent rates (resolution of the Federal Antimonopoly Service of the Volga Region dated March 22, 2012 in case No. A06-4937/2010), etc.

A sign of a gift agreement is the absence of any consideration. The presence of mutual outstanding monetary obligations between the parties, although unequal, indicates that their intention to forgive each other’s debt is not a type of gift (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 19, 2006 N 11659/06). In the absence of a clear and obvious intention to gift the debtor under the obligation, the transaction cannot be considered as a gift. This legal position, currently applied, was formed in judicial practice back in 2001 (resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 5, 2001 N 8303/00, dated April 26, 2002 N 7030/01, dated November 5, 2002 N 6745/02 ).

A creditor may forgive a debt on one or more obligations in order to obtain performance on other obligations. For example, in case of refusal to collect a penalty when the debtor repays the principal debt by a certain date (clause 3 of the Review of the practice of application by arbitration courts of the norms of the Civil Code of the Russian Federation on certain grounds for termination of obligations, approved by the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 N 104).

Situations when debt forgiveness is not a gift will be discussed below.

What transactions are not a gift?

Some gratuitous transactions are not a gift, although they are very similar to it. Let's analyze them.

Free transaction as part of a single transaction

A transaction that, although formally in itself is gratuitous, at the same time represents part of a single compensated transaction, is not a gift.

Example 3. The provision of gifts and bonuses by an entrepreneur to his client when ordering goods, works or services in a certain volume is not a gift, since the cost of the corresponding performance is taken into account as part of the total price under the contract.

In such a situation, the issuance of a gift is a condition for concluding a paid agreement, within the framework of which it is provided, while it is not issued separately on its own, which allows us to say that the relations of the parties under such an agreement are generally compensated.

In other words, any gratuitous transactions structured in a single compensation agreement cannot be considered a donation, since their content cannot be assessed separately from the general target orientation of the agreement. The entire set of conditions presented in such an agreement represents a single agreement of the parties, expressed in the establishment of compensated legal relations.

For example, in lease legal relations, the parties may provide that all separable and inseparable improvements to the leased property made by the tenant become the property of the lessor without any compensation to the tenant (clause 1 of Article 623 of the Civil Code of the Russian Federation).

Lessors, who are the stronger party in the lease agreement, usually include such a condition. Investments in property improvements are a financial outlay for the tenant that has a certain commercial value. In this regard, arbitration courts note that the transfer by the tenant into the ownership of the landlord of completed improvements to the leased property cannot be considered as its gratuitous transfer into ownership. They base this conclusion on the fact that the consideration for it is rent (resolution of the Federal Antimonopoly Service of the North Caucasus District dated September 30, 2011 in case No. A32-29932/2010).

It is impossible not to note that the assertion that consideration for transferred improvements is the payment of rent is controversial. The fact is that payment of rent is a consideration for the use of the leased property and in itself is not compensation for the tenant’s costs for the improvements made. At the same time, in the case under consideration, the lessor does not always derive a property benefit when receiving ownership of the improvements made. Let's imagine a situation where the owner of premises rents them out to various persons on a systematic basis. Each of the tenants, based on the specifics of their activity, having received premises for rent, brings them into the condition they need (shopping area, restaurant, hairdresser, gym, etc.).

For the owner in such a situation, the improvements made have no value, since they themselves are not of interest to him: the next tenant with whom he enters into a lease agreement will want to carry out finishing work with the consent of the owner and change everything. Paying compensation to each tenant will be unprofitable for the owner. In this regard, since neither the law nor the agreement of the parties provides for the reciprocal obligation of the lessor to pay for the improvements made by the tenant, it cannot be considered as a gift.

The rules of paragraph 3 of Art. are also not applicable to her. 424 of the Civil Code of the Russian Federation on determining the price and the general presumption of compensation for any contract, since the transaction is gratuitous. The transfer of improvements into the ownership of the lessor without compensation to the lessee will not constitute unjust enrichment of the lessor, since in this situation the basis for the acquisition of property (improvement made) for the lessor is the agreement concluded with the lessee.

Thus, the gift of property presupposes the existence of the will of the donor, who intends to transfer the property belonging to him to another person free of charge precisely as a gift, and not on any other basis arising from the economic relations of the parties to the transaction (Determination of the Supreme Arbitration Court of the Russian Federation dated October 3, 2012 N VAS-8989 /12).

Free transfer

within the framework of a property insurance contract

The gratuitous transfer of property is not a donation unless the law or agreement of the parties provides for the obligation of the person receiving such property to provide consideration for it. In the current legislation there are contractual models, the designs of which provide for the gratuitous transfer of property. In particular, unless otherwise provided by the property insurance contract, the insurer who paid the insurance indemnity receives, within the limits of the amount paid, the right of claim that the insured (beneficiary) has against the person responsible for the losses compensated as a result of insurance in accordance with clause 1 of Art. 965 of the Civil Code of the Russian Federation.

For insuring his risks, the policyholder pays an insurance premium to the insurer, which demonstrates the compensatory nature of this contract. Having received from the insured the right of claim for the amount paid, the insurer in the economic sense loses nothing: for the amount paid by him he received the right of claim against the causer of harm and will recover the paid amount from him, and for the fulfillment of his insurance obligations the insurer received an insurance premium. The law provides for a dispositive rule on subrogation, but given that insurers offer insurance contracts based on the model of an adhesion agreement, it is unlikely that they can be changed in favor of the policyholder. The policyholder has no fewer rights to such an amount than his insurer, however, the legislator takes a different position and has established a general rule on subrogation in favor of the insurer.

Since in the situation under consideration, neither the law nor the agreement of the parties provides for the obligation to provide counter-provision for the gratuitous transfer of property, it cannot be considered as a donation and the rules of paragraph 3 of Art. 424 of the Civil Code of the Russian Federation on determining the average market price.

Conclusion of agreements on debt restructuring

In judicial practice, an approach has also been established according to which the conclusion of agreements on debt restructuring is not considered a gift, but is considered as a transaction aimed at resolving a dispute on mutually acceptable terms by reaching a reasonable compromise between the debtor and the creditor. The courts take into account both the direction of the creditor's will not to bestow benefits on the debtor, but to quickly obtain satisfaction of his basic property claims against him, and the terms of such a transaction itself. In particular, the usual practice for such an agreement is to include in it a condition that if the debtor violates the agreed terms for servicing the debt, he is obliged to fulfill his obligations on the same terms (Determination of the Supreme Court of the Russian Federation dated December 27, 2016 in case No. 305-ES16-12298, A40 -120254/2015).

If the creditor had no intention to reward the debtor, he has the right to count on receiving consideration for the performance performed. So, if one citizen paid for a loan for another, he has the right to demand compensation for expenses incurred according to the rules on unjust enrichment (clause 1 of Article 1102 of the Civil Code of the Russian Federation). If the debtor does not prove that the creditor wanted to give him a gift, he will have to compensate the amount paid to the bank (Appeal ruling of the Supreme Court of the Republic of Tatarstan dated July 14, 2016 in case No. 33-11739/2016). As evidence that the amount of money transferred to the account was a gift, the recipient may present any relevant and admissible evidence. In particular, this could be witness testimony, a report and documents on the targeted expenditure of funds, if it was about targeted gratuitous financing, etc. (Determination of the RF Armed Forces dated June 27, 2017 N 5-KG17-73).

It is necessary to stipulate that this approach should be applied if the payment by the creditor for the debtor of his debt was of a one-time nature, since systematic payments may lead the court to the idea that there were certain agreements between them on this matter. In such a situation, the creditor, paying debts for another person, acts at his own peril and risk, knowingly knowing that there is no obligation between them, which is the basis for refusing to satisfy the conditional claim on the basis of clause 4 of Art. 1109 of the Civil Code of the Russian Federation.

In addition, the creditor’s voluntary consent to reduce the amount of indemnified losses within the framework of the concluded agreement on their settlement will not be considered a donation. The actual will in this case is not aimed at releasing the debtor from the obligation incumbent upon him, but at obtaining property satisfaction on agreed and acceptable terms. The loss settlement agreement ends the parties' dispute regarding the amount of compensation and fixes the specific amount of the debt, the repayment of which the creditor has the right to demand from the debtor.

Such an agreement does not contradict the law and must be executed by the parties (Articles 309 - 310 of the Civil Code of the Russian Federation) in full compliance with all its terms. After its conclusion, the creditor no longer has the right to demand that the debtor pay a larger amount, but at the same time he is relieved of the obligation to prove the fact and amount of losses, the existence of a cause-and-effect relationship between the losses and the debtor’s unlawful behavior (Article 15 of the Civil Code of the Russian Federation).

Since participants in civil transactions act of their own free will and in their own interests and independently bear the risk of adverse consequences of their decisions, the creditor was in an equal position with the debtor in the obligation to compensate for harm. He knew the extent of his losses, and he was not deprived of a real opportunity to refuse to enter into a settlement agreement or to enter into it on different terms. Having chosen this option, he is obliged to fulfill the obligations assumed under this agreement (Appeal ruling of the Sverdlovsk Regional Court dated March 21, 2017 in case No. 33-4246/2017).

Example 5. The creditor and the debtor entered into an agreement on voluntary compensation for losses caused, indicating that the payment by the debtor to the creditor of the amount agreed upon in this agreement reflects the value of the goods lost as a result. The agreement provided that payment of the agreed amount would fully satisfy the creditor's claims. The debtor transferred the agreed amount to the creditor, but the latter went to court, demanding full compensation for losses, believing that he had the right to claim a larger amount. Refusing to satisfy the stated claim, the court indicated that the creditor did not provide evidence of a different amount in the case materials, since the documents presented by the creditor did not make it possible to establish the amount of losses caused to him.

(Resolution of the Federal Antimonopoly Service of the North-Western District dated July 21, 2011 in case No. A56-23779/2010)

The situation may be different when not one, but several debtors at once act as obligated persons to the creditor, for example, if we are talking about causing property damage as a result of an accident. The victim has the right to present his claims both to the causer of harm and to his insurer under compulsory motor liability insurance. The liability of the insurance company is limited not only by the insurance coverage limit, but is also reduced due to the natural wear and tear of spare parts, components and assemblies used during repairs. Meanwhile, such a limited amount of liability of the insurer does not deprive the victim of the right to independently recover the amount of the difference from the tortfeasor if the actual amount of losses exceeds the amount of insurance coverage (Resolution of the Constitutional Court of the Russian Federation dated March 10, 2017 N 6-P).

No separate fee for performance provided

The absence of a separate payment for the performance provided will also not be considered a gift, if under the terms of the contract it was not intended. The parties to the contract independently bear the risk of negative consequences associated with inattention when agreeing on its terms.

Example 6. As a general rule, payment for the use of a land plot is included in the amount of rent for the use of the real estate located on it.

If there is no provision in the real estate lease agreement regarding the tenant's obligation to pay an additional fee for the use of the land plot separately from the rent agreed upon by the parties or another agreement providing for such an obligation, the rent agreed upon by the parties to the agreement includes payment for the use of both the real estate property and the land plot underneath it .

The conclusion given in example 6 corresponds to the stated legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation (Resolution dated September 2, 2008 N 808/08) and the Supreme Court of the Russian Federation (Definitions dated April 6, 2017 N 309-ES16-18264 and dated October 21, 2016 N 309-ES16-8125) .

The parties to the lease agreement are not deprived of the opportunity to provide for other rules in this regard, which does not contradict the law (Articles 421 - 422 of the Civil Code of the Russian Federation). If the lease agreement does not contain such provisions, the lessor will have to accept the amount of rent that he agreed with the counterparty.

Free funds provided

or other property

It is also impossible to consider gratuitously provided funds or other property as a donation if such performance is carried out within the framework of relations regulated by the norms of other branches of law.

Thus, gratuitous payments that an employer makes in favor of an employee on the basis of local regulations are not a gift, even if they are accompanied by the conclusion of a separate agreement.

Some companies use various financial incentive programs in the form of providing subsidies for food and visiting a fitness club, full or partial payment for travel during vacations, recreation and leisure activities for employees’ children, etc. The most significant form of support for workers is the provision of so-called targeted financial assistance to improve living conditions.

The company may approve one or more programs related to housing policy at the enterprise, which will reflect the procedure and conditions for providing financial assistance. These relations are the subject of regulation of Russian labor law, since the corresponding legal relations arise and develop in the process of workers’ labor. This also applies to the case when an agreement is concluded between an employee and an employer, which specifies the conditions for the provision of financial assistance in pursuance of local acts of the company.

Before receiving such financial assistance, employees should definitely familiarize themselves with the contents of the relevant local acts, since they may contain conditions that do not meet the interests of employees. In particular, by agreeing to provide financial assistance in the form of repaying for an employee all or part of the interest on a loan received from a bank, the employee counts on the fulfillment of the loan obligation by his employer.

Planning to work for a long time in a company, an employee may not be ready to carry out organizational and staffing measures in the company, as a result of which he may lose his job (for example, reduction in the number or staff of employees, relocation of the company to another area, dismissal of an employee for guilty actions and etc.). In relation to such cases, the company’s LNA may provide for special conditions that entail the termination of the employer’s obligation to make payments to the bank to repay the loan obligation. In such a situation, the employee may find himself in a situation where he needs to repay the loan and at the same time he will no longer be able to count on financial support from his employer.

Example 7. The minutes of a meeting of the company’s board of directors approved the housing policy regulations and the housing mortgage lending program in order to support employees. Based on these documents, loan agreements for the purchase of housing were concluded between the bank and the company’s employees. The borrowers' obligation was secured by a company guarantee. The company also entered into agreements with these employees to provide targeted financial assistance to repay interest on loan agreements in the amount determined by the company’s board.

Subsequently, by orders to terminate employment contracts, the employees were dismissed under clause 2, part 1, art. 81 Labor Code of the Russian Federation. After his dismissal, the transfer of targeted financial assistance to him to pay off interest was stopped.

The lower courts considered such actions of the company to be unlawful, but the Presidium of the RF Supreme Court pointed out that the courts had committed a fundamental violation.

Relations between the company and its employees arose on the basis of the housing policy regulations, the housing mortgage lending program and contracts for the provision of targeted financial assistance. From the contents of these documents, it was clear that targeted gratuitous financial assistance is provided only to the company’s employees, and by virtue of Part 2 of Art. 5 of the Labor Code of the Russian Federation, by their legal nature, these documents are LNA containing labor law norms.

Consequently, the provision of gratuitous financial assistance by an employer to an employee falls within the scope of labor relations, and therefore they are regulated by the norms of labor, and not civil legislation of the Russian Federation. The contracts for the provision of targeted financial assistance stipulated that it would terminate in the event of dismissal of workers, and the company had the right to decide to continue providing it. Since the company’s board decided to stop providing targeted financial assistance to dismissed employees, they had no right to count on it, and the norms of civil legislation of the Russian Federation are not applicable to these relations. But, given that judicial acts recognizing employees’ right to receive certain amounts of money came into force, the supervisory court upheld them.

(Resolution of the Presidium of the Armed Forces of the Russian Federation dated December 21, 2011 N 15-ПВ11)

The presence of a counter transfer of a thing or right

or counter-obligation

An agreement is not recognized as a donation if there is a counter-transfer of a thing or right or a counter-obligation. It is considered a sham transaction, to which the rules on the agreement that the parties really had in mind are applied (clause 2 of Article 170 and paragraph 2 of clause 1 of Article 572 of the Civil Code of the Russian Federation).

At the same time, it is necessary to distinguish between the reciprocal obligations of the parties and the conditions under which this or that property is given as a gift, since the donor has the right not only to donate the thing, but also to surround the delivery of the gift with a number of conditions. In the agreement for donating an apartment, the donor may stipulate that he retains the opportunity to live in it for life, and the recipient is obliged to ensure this opportunity. Providing the donor with such a right is not a counter-performance on the part of the donee, but represents a condition on which the apartment is donated. In judicial practice, it is possible for the donor to protect this right of obligation not only against the donee, but also against other persons. In particular, the donor has all rights against all subsequent owners of the apartment (Appeal ruling of the Moscow City Court dated January 12, 2017 in case No. 33-1137/17), although this practice is not uniform.

A gift from the budget is not possible

Participants in civil transactions do not have the right to count on any “gifts” from the budget, unless this is provided for by law or other legal acts of the Russian Federation.

Thus, personal income tax taxpayers have the right to count on receiving a property tax deduction only in cases where they have the grounds established for this by law.

In practice, taking into account the significant amount of work of tax authorities, their heavy workload and simply the human factor, the possibility of error cannot be ruled out. Its consequence may be an unjustified decision by the tax authority to grant a deduction in a situation where there were no grounds for this. How can the interests of the treasury be protected in this case?

This legal uncertainty was eliminated by the Constitutional Court of the Russian Federation in Resolution No. 9-P dated March 24, 2017. The court considered that the provisions of Art. 32, 48, 69, 70 and 101 of the Tax Code of the Russian Federation, as well as paragraph 3 of Art. 2 and Art. 1102 of the Civil Code of the Russian Federation does not exclude the possibility of the tax authority using a claim for the recovery of unjust enrichment. This solution to the problem is possible due to the absence in the legislation on taxes and fees of special regulation of the procedure for returning an unlawfully (erroneously) granted property tax deduction. In this regard, the tax authority has the right to demand recovery from the taxpayer of funds received by him as a result of an unlawfully (erroneously) granted property tax deduction for personal income tax, in order to return unjust enrichment in the case where this measure turns out to be the only possible way to protect the fiscal interests of the state.

A corresponding claim may be made if the provision of a property tax deduction was due to an error by the tax authority itself, within three years from the date of making an erroneous decision to provide a property tax deduction. If the provision of this deduction was due to the illegal actions of the taxpayer, the tax authority has the right to apply to the court with a corresponding demand within three years from the moment when it learned or should have learned that there were no grounds for providing the deduction.

This approach does not infringe on the rights and legitimate interests of the taxpayer, who does not have the right to count on being provided with a tax deduction in the absence of sufficient grounds.

How to issue a deed of gift: step-by-step instructions

Let's consider a step-by-step algorithm of actions when drawing up a contract using the example of real estate alienation:

1. A written document is drawn up where the owner promises to make a gift in the future.
2. If necessary, everything is certified by a notary.
3. Before the date of transfer of property, the donee has the right to refuse. The refusal must be made in writing.
4. From this date, the recipient applies to Rosreestr to register ownership rights.
5. After 10 days, an extract from the Unified State Register is issued.

An example of concluding a real bilateral agreement:

1. A citizen gives a car to a person, handing over the keys, changes are made to the title. From this moment on, another person is considered the new owner.
2. The owner buys compulsory motor liability insurance and registers the vehicle with the traffic police.

Note! A real two-sided document is also relevant for small gifts that are usually given on holidays: jewelry, tool sets, cosmetics, etc. The recipient can refuse them at the time of transfer, so his consent is required.

Contents of the agreement

The document must contain complete information:

• Full name, passport details, dates of birth of citizens;
• information about the subject;
• effective date;
• signatures of the parties.

Sample apartment donation agreement:

Documentation

When registering, you will need the following documents:

• passports of citizens;
• notarized power of attorney, if the interests of the owner or recipient are represented by another person;
• real estate documents: extract from the Unified State Register of Real Estate, cadastral passport, technical documentation;
• when alienating a car - PTS, STS, as well as documents confirming the grounds for the emergence of ownership rights (inheritance certificate, DCT, etc.).

The complete list of documents depends on the type of gift.

How to challenge a deed of gift?

Cancellation by peaceful means is possible only with mutual consent of the parties. The procedure is supported by the execution of a termination agreement.

In other cases, you will have to go to court to cancel if there are grounds:

• commission by the donee of a crime against the life and health of the donor or his relatives;
• death of the donor due to the fault of the other party;
• death of the recipient before the former owner, if this is provided for in the deed of gift;
• invalidity: signing under the influence of delusion, threats, violence, blackmail;
• imaginary or pretense.

Third parties also have the right to go to court:

for example, heirs, if the donee intentionally killed the donor, and the court verdict entered into legal force. Creditors of the former owner of the property can also demand cancellation if less than six months before the start of the bankruptcy procedure he registered everything in the name of another person.

Refusal of the donor to fulfill the contract

In accordance with Article 577 of the Civil Code, the donor has the right to refuse to execute the gift agreement. This right applies only to a consensual contract in which a gift is promised to a second party in the future.

Also, the legislation, in paragraph 1 of this article, limits the donor’s right to refuse to execute a transaction on the following two grounds :

1. If the donor's family or property status, or his state of health, has changed so much that the execution of the gift agreement could lead to a significant deterioration in his standard of living;
2. If the donee has committed illegal actions against him, which gives him the right to cancel the donation on the grounds of paragraph 1 of Article 578 of the Civil Code.

in the property status of the donor can be understood, for example, as a significant decrease in his income or a complete loss of earnings due to dismissal from work and the inability to find work in his specialty for a long time, the destruction of part of the property as a result of a fire or natural disaster, etc.

A change in the donor's marital status may be associated, for example , with marriage or its dissolution (division of property), the birth or adoption of children, and so on.

health condition may change for the worse due to a serious illness that requires long-term and expensive treatment, disability, etc.

But you need to understand that these reasons in themselves do not give the donor grounds to refuse to fulfill the gift agreement. They must meet certain requirements, namely:

• the circumstances that prompted the donor to such a decision arose after the conclusion of the deed of gift and before its execution;
• the circumstances must be unforeseen, that is, neither party could have foreseen their occurrence;
• the decline in the donor's standard of living due to unforeseen circumstances must be so significant that if the donor had known about the consequences, he would not have promised to make the gift.

For your information

Only a court can assess a “significant reduction” in the event of a dispute between the parties on a case-by-case basis.

Since the contract of promise of gift is concluded exclusively in writing, the donor’s refusal to fulfill the contract is also subject to written form.

Arbitrage practice

Challenging is carried out through the court, because The consent of the other party is not required in this case. Challenging a deed of gift is a complex process that requires good legal preparation and complete evidence confirming the grounds for canceling the transaction.

But there is an opportunity to challenge everything in court, this is confirmed by several decisions:

• Decision No. 2-55/2019 2-55/2019(2-775/2018;)~M-675/2018 2-775/2018 M-675/2018 dated June 17, 2021 in case No. 2-55/2019 ;
• Decision No. 2-597/2019 2-597/2019~M-515/2019 M-515/2019 dated June 13, 2021 in case No. 2-597/2019;
• Decision No. 2-3414/13 2-3414/2013 dated November 11, 2013