Современный этап реформирования законодательства представляет собой формализацию правил поведения с учетом фактора гражданского права как регулятора общественных процессов на основе диспозитивного подхода и дозволительной направленности. Интерес в этой связи к договору дарения обусловлен его значением и ролью в системе средств правового регулирования отношений в обществе. The modern stage of reforming of legislation is formalization of rules of conduct considering civil law as a regulator of social processes on the basis of discretionary approach and permissible directivity.
In this respect, interest to gift contract is caused by its meaning and role in the system of means of legal regulation of relationships in society. The gift contract is a gratuitous transaction on transfer of a thing, property right or relief of property duty to the ownership of another person paragraph of the Russian Federation Civil Code. One of adverse consequences of product transfer according to sale and purchase agreement without belongings and accompanying documentation technical specification, abstracts, operation manual and so on is refusal of purchaser from the agreement.
Regulations on obligations in consequence of infliction of harm are applicable to the donor in presence of totality of the circumstances: Accompanying and technical documentation is an integral part of the product in itself and, although one should distinguish between defects of the product and defects that appeared because of wrong use of the thing, we see causal relationships of its occurrence. The donee that use the gifted thing having no application instructions can do damage to his or her health, life and property.
In above-mentioned situation, it will be unlikely to bring to account a donor, but if defects of thing can be determined when comparing characteristic of the thing and its description in accompanying documents, in the presence of ternary characteristics according to the paragraph of the RF Civil Code donee can demand reparation of damages from donor. The variant is likely to be hypothetic, an ancient proverb that as well as possible characterizes such situation comes to mind: A peculiarity of the gift contract in relation to sale and purchase agreement is enshrined in the object of the agreement.
Sale and purchase agreement obliges a purchaser to do consideration and to accept the product. Acceptance of the goods is a certain regulation and as a rule is subject compulsory to implementation. With respect to the gift contract, obligation to meet it is projected only to the donor.
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Actions of donee are restricted by the possibility to refuse the gift before its delivery; acceptance of product thing is not envisaged; a consequence will be the impossibility to refuse the thing after receiving it. The thing that is delivered as a gift cannot be encumbered by third parties. A legislator sets a number of restrictions of gift that are related also to disposal of thing, property rights holders of which are not owners or one of co-owners in joint property law. So, a corporation that possess a thing on the basis of the right of economic or operating management, has a right to present this thing with consent of owner, and possessor of joint property has a right to gift the thing with consent of other co-owners paragraph , of the RF Civil Code.
As a rule, gift contract is a real transaction and can be made by word of mouth and also by implicative actions by virtue of giving an object of gift to the donee. If this provision is not met, the gift contract is invalid. An agreement will be acknowledged as invalid if therein delivery of property or property right within gift is supposed after death of the donor. One can dispose of property in case of death only through conclusion of last will and testament.
One more peculiarity of the gift contract opposed to last will and testament is a demand to state a specific object, property right, release from liability in the gift contract, whereas in last will and testament a common record of delivery of property under last will and testament, without detalization of specific property is possible. If delivery of property on the basis of the gift contract failed because of sudden death of the donor or donee, paragraph of Civil Code supposes the rules of legal succession, namely, rights under the gift contract do not transfer to successors of the donee, unless otherwise provided.
At the same time, heritors of the donor are obliged to perform the gift contract from estate of the donor after accession to the heirship. The donor has a right to specify condition on cancellation of gift if he will outlive the donee.
The gift contract has a restriction of application depending on legal capacity, cost and kind of property that is gifted. Norm of the paragraph of the RF Civil Code establishes prohibition on gift. First of all, prohibition on gift is established in regard to juvenile and legally incapable citizens — such persons cannot be donors.
Concerning donees prohibition on gift regards to officials of educational and social institutions, public and local authorities. Prohibition is aimed at suppression of unethical practices and corrupt activities. The third group of persons concern which prohibition on gift is established are profit organizations. This prohibition is connected with economic nature of activity of commercial organizations where the main goal is systematic profitmaking, obtain of added value, income.
Carrying out of free of charge transactions contradicts to its nature and can be used by unscrupulous entrepreneurs with the aim not to fulfil obligations, to reduce taxable profit. The gift contract is one of unique kinds of civil contracts when it comes to cancellation of transaction. General provisions for cancellation termination of contract are not applicable to it.
Within bankruptcy of economic agents, cancellation of gift is also possible if the transaction violates principles of legitimacy and law enforcement. It should be noted that refusal to execute the gift contract and cancellation of gift are not applicable to common gifts of low cost. Legislator differentiates special kind of gift — charitable gift.
Difference from usual gift is that property or property right is delivered for socially useful purposes and can be subjected to use by social institutions, cultural institutions, charitable organizations and state. By the moment of creation of rights and obligations, the gift transaction can be real and consensual.
By the form, it can be oral and written. Written transaction in its turn can be simple and qualified. By the aim of gift: By conditions of gift: One can also classify gift transactions depending on subject matter, object of gift, restrictive or prohibitive properties of the gift contract. The construction of the gift contract has similar traits with other forms of disposal arrangement such as debt release, refusal from property right, cession and others that causes some difficulties in determination of legal nature of transaction used by the subjects of civil circulation and stream of commerce.
Characteristic of the gift contract and its varieties lets divide this construction of similar and protect interests of the parties concerned. Sankt-Peterburgskiy gosudarstvennyy universitet, Grazhdanskiy kodeks Rossiyskoy Federatsii chast pervaya: Federalnyy zakon ot Grazhdanskiy kodeks Rossiyskoy Federatsii chast vtoraya: