1. A donation is the donation of a thing or right for generally beneficial purposes. Donations can be made to citizens, medical, educational organizations, social service organizations and other similar organizations, charitable and scientific organizations, foundations, museums and other cultural institutions, public and religious organizations, other non-profit organizations in accordance with the law, as well as to the state and other entities civil law specified in the article of this Code.
2. Accepting a donation does not require anyone's permission or consent.
3. The donation of property to a citizen must be, and to legal entities may be conditioned by the donor on the use of this property for a specific purpose. In the absence of such a condition, the donation of property to a citizen is considered an ordinary donation, and in other cases the donated property is used by the donee in accordance with the purpose of the property.
The legal entity accepting the donation for which it is established specific purpose, must keep separate records of all transactions involving the use of donated property.
4. Unless a different procedure is established by law, in cases where the use of donated property in accordance with the purpose specified by the donor becomes impossible due to changed circumstances, it can be used for another purpose only with the consent of the donor, and in the event of the death of the citizen-donor or liquidation legal entity- donor by court decision.
5. The use of donated property not in accordance with the purpose specified by the donor or a change in this purpose in violation of the rules provided for in paragraph 4 of this article gives the right to the donor, his heirs or another legal successor to demand cancellation of the donation.
Commentary on Article 582
1. A donation is understood as a donation of a thing or a right associated with encumbering the donee with the obligation to use the donated property for a certain generally beneficial purpose. The agreement between the donor and the donee regarding such an encumbrance must take place no later than their agreement on causa donandi. This obligation of the donee arises not with the achievement of an appropriate agreement, but only with the transfer of a thing or right to him. Therefore, the donee does not need to object to the unfulfilled contract.
A promise of gift, which substantiates the obligation of the donee to use the donated property in accordance with the instructions of the principal, is a bilateral, but not a mutual agreement (see: Larenz K. Lehrbuch des Schuldrechts. Bd. 2. Halbbd. 1. S. 209). It cannot be considered as a mutual agreement, since the action owed by the donee (for example, support of a charitable institution) according to the parties is not equivalent to the provision made by the donor (see: Bucher E. Obligationenrecht. Besonderer Teil. 3 Aufl. Zurich, 1988. S. 154).
2. In paragraph 2 of the comment. Art. permission is opposed to consent and, therefore, is considered as something different from it, although in reality permission is one of the types of consent (see: Enneccerus L., Nipperdey H.C. Allgemeiner Teil des burgerlichen Rechts. 14 Aufl. Tubingen, 1955. Halbbd. 2. S. 886; Krasheninnikov E.A. Transactions requiring consent. P. 7).
3. Fulfillment by the donee of his obligation to use the donated property in accordance with the instructions of the principal sometimes turns out to be impracticable due to changed circumstances (for example, due to the cessation of the existence of a charitable institution to which the donee has pledged to support). If this is the case, then the donated property can be used for another purpose only with the consent of the donor, and in the event of his death or liquidation - by court decision (clause 4 of the commentary article).
4. Using donated property not in accordance with the purpose specified by the donor or changing this purpose in violation of the instructions of paragraph 4 of the comment. Art. gives the donor or his successor the right to demand cancellation of the donation (clause 5 of the commentary article). Being by its legal nature a transformative claim, this right is addressed not to the donee, but to the court and is subject to a three-year statute of limitations. The implementation of this right leads to the disappearance legal basis donations, as a result of which the donor or his legal successor, depending on the type of donated property, has either a claim against the donee for the delivery of the thing transferred to him (clause 1 of Article 1104 of the Civil Code), or the right to demand from the court the transfer to himself of the claim transferred to the donee.
DONATION AGREEMENT IN FORENSIC ARBITRATION PRACTICE
A.WITH. FEOPHILACTOV
Feofilaktov Alexander Sergeevich, head of the legal department of the State Educational Institution of Higher Professional Education “Vladimirsky” State University named after Alexander Grigorievich and Nikolai Grigorievich Stoletov."
Current civil legislation considers a donation as independent variety gift agreement, which is expressly provided for in clause 1 art. 582
Despite the fact that the vast majority of relationships in the sphere economic activity are of a compensatory nature, last years In judicial arbitration practice, disputes related to donation agreements have become much more common. As an analysis of cases in this category shows, courts have problems applying these norms of civil legislation, which leads to the adoption of contradictory judicial acts.
The use of a donation agreement as a method of formalizing property relations is currently developing rapidly. Many financially wealthy citizens and organizations providing charitable support to socially significant structures prefer to protect their interests from unscrupulous recipients of assistance by concluding transactions that specify the procedure for using the property they provide for generally beneficial purposes.
The donation agreement cannot be considered a completely new institution for domestic civil law. As is known, in pre-revolutionary Russia, patronage of the arts reached quite high level development, which could not but be reflected in legislative acts.
During the Soviet period, legislation did not use the term “donation”. However, as an analogue of this type of gift agreement, para. 3 tbsp. 256 of the Civil Code of the RSFSR of 1964, which provided for the donation by a citizen of state, cooperative or other property public organization for a specific socially useful purpose.
Taking into account new trends in the development of socio-economic relations, the current Civil Code Russian Federation regulated relations in the sphere of gratuitous transfer of property for socially useful purposes more in detail, highlighting an independent form of transaction - a donation agreement.
The donation agreement is defined in law as independent form donation of a thing or right with specific features established in the Civil Code of the Russian Federation and some other legal acts.
The donation agreement is fully subject to the statutory rules of donation, unless otherwise expressly provided in the current legislative documents.
Let us highlight the main features of the contract under consideration.
1. The donation is free of charge, i.e. cannot be conditioned by counter-performance on the part of the donee. Provided in Art. 582 The Civil Code of the Russian Federation, the intended purpose of the transferred property should be considered as an encumbrance established by the donor, which makes it possible to guarantee the achievement of a generally beneficial goal.
In judicial practice, there are often disputes related to resolving the issue of whether the relationship between the parties was gratuitous in nature or whether property was transferred from one person to another for a fee.
Thus, in particular, the charitable foundation for the support of medicine “Humanitarian Action” (hereinafter referred to as the fund) filed a claim with the Arbitration Court of the Vladimir Region against the municipal unitary institution “Kolchugino Central Regional Hospital” (hereinafter referred to as the hospital) for the recovery of 592,181 rubles 58 kopecks in arrears in payment medicines, transferred according to the delivery note and invoice dated November 26, 1998 N 601.
The court decision satisfied the claims in full. According to the case materials, the fund transferred insulin to the hospital using invoice No. 601 dated November 26, 1998. In the invoice issued by the fund with the same date and number, the cost of medicines is determined in the amount of 20,204.08 conventional units. There was no written agreement between the parties.
In June 2001, the fund appealed to the arbitration court with a demand to collect debt from the hospital in an amount calculated at the US dollar exchange rate on the day the decision was made.
Satisfying the claim, the court came to the conclusion that a one-time sale and purchase transaction was concluded between the parties and in accordance with paragraph 1 of Art. 486 of the Civil Code of the Russian Federation, the buyer has an obligation to pay for the goods.
The appellate and cassation courts, leaving the decision of the first instance court in force, recognized the defendant’s argument about the transfer of medicines by way of donation as untenable, since the law established a presumption of compensation for the transaction, and no evidence was presented that the hospital received insulin free of charge.
Thus, due to the fact that the parties did not initially determine the nature of their relationship regarding the transfer of property medical institution, a dispute subsequently arose about the hospital’s obligation to pay for the medicines transferred to him, although the recipient believed that he was acting within the framework of the donation agreement.
However, the Supreme Arbitration Court of the Russian Federation, having considered this case by way of supervisory review, overturned the judicial acts of the lower courts on the following grounds.
In accordance with paragraph 3 of Art. 423 of the Civil Code of the Russian Federation, a contract is assumed to be for compensation unless otherwise follows from the law, other legal acts, content or essence of the contract.
According to paragraph 1 of Art. 118 of the Code, a foundation is recognized as a non-profit organization pursuing social, charitable, cultural, educational or other socially beneficial goals.
The fund's charter (clause 1.6) provides for the provision of property and financial assistance to institutions of the medical and preventive network, orphanages, schools, etc. as its main goal. institutions.
Based on clause 2 of Art. 118 of the Code, the fund has the right to engage in entrepreneurial activity, however, this activity is limited by its statutory purposes.
Entrepreneurial activity aimed at making profit at the expense of persons to whom the fund should provide property and financial assistance obviously contradicts the purposes of creating the fund as defined by law and the charter.
In the invoice and invoice dated November 26, 1998 N 601, there is no reference to the hospital’s obligation to pay for the goods, to the procedure and terms of payment, and it does not indicate which foreign currency the conventional units are equivalent to.
In addition, the claim was brought 2.5 years after the transfer of the goods, which also confirms that the parties initially had the goal of concluding an agreement for the donation of medical drugs to achieve generally beneficial goals. In connection with which the judicial acts were canceled and the case was sent for a new trial to the court of first instance<1>.
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<1>Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 24, 2002 N 6609/02 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2003. N 1.
2. The subject of the agreement may be donations in accordance withclause 1 art. 582Civil Code of the Russian Federation things or property rights belonging to the donor.
Thus, in contrast to a regular gift agreement, a donation cannot be made by releasing the donee from fulfilling a property obligation to the donor or another entity that has the right of claim in relation to the donee. At the same time, according to the author, such a restriction is not entirely justified, since in practice often organizations operating in a socially significant area have significant debts under various types of obligations, primarily contractual ones. In this regard, it would be quite appropriate to establish in the Civil Code of the Russian Federation such an opportunity for potential donors. Moreover, it is often more convenient for subjects wishing to make a donation for charitable purposes to fulfill for the donee some obligation under a transaction concluded by him, than to first acquire an item for himself, and only after that transfer it to the donee. Currently, in fact, a similar form of donation is used by many educational and other institutions, although based on the literal interpretation of Art. 582 of the Civil Code of the Russian Federation, the payment of a bill for the donee in favor of a third party cannot be considered a donation.
The subject of a gift agreement can also be securities owned by the donor, since they certify a certain amount of property rights transferred to the recipient of the donation. The possibility of using shares when making a donation is confirmed by materials from arbitration practice, while the transfer valuable papers is also carried out for general purposes.
So, in particular, a number of citizens filed a claim with the Arbitration Court of the Irkutsk Region against the Committee for State Property Management (Kugi) of the Irkutsk Region, the open joint-stock company (JSC) “Haitinsky Porcelain”, Terskikh V.N.: 1) for the recognition of transactions as void purchase and sale of shares of OJSC “Haitinsky Porcelain”; 2) on recognition of the void transaction of donation of shares of the open joint-stock company (OJSC) “Siberian Porcelain”, concluded between OJSC “Khaitinsky Porcelain” and KUGI of the Irkutsk Region.
According to the text of the statement of claim, the plaintiffs are shareholders of OJSC Khaitinsky Porcelain. OJSC Khaitinsky Porcelain was a shareholder of OJSC Siberian Porcelain, owning 24,000 shares.
The general meeting of shareholders of OJSC Khaitinsky Porcelain on March 17, 2000 made a decision (97.6% of shareholder votes) to transfer the shares to the ownership of the Irkutsk region under a donation transaction.
On April 5, 2000, a donation agreement was concluded between KUGI of the Irkutsk Region (as a representative of the Irkutsk Region) and OJSC Khaitinsky Porcelain, under the terms of which OJSC Khaitinsky Porcelain donated and transferred 24,000 shares of OJSC Siberian Porcelain to the ownership of the Irkutsk Region.
The donation agreement was fully executed by the parties. The plaintiffs filed a claim with the arbitration court to declare the said transaction invalid, arguing that it was of an enslaving nature and was concluded by malicious agreement of the parties without a generally beneficial purpose.
The courts of the first, appellate and cassation instances rejected the claim due to the following circumstances.
Donations can be made to citizens, medical, educational institutions, institutions social protection and other similar institutions, charitable, scientific and educational institutions, foundations, museums and other cultural institutions, public and religious organizations, as well as the state and other subjects of civil law specified in Art. 124 of the Code.
According to paragraphs 1, 3 of Art. 4 of the Federal Law “On Charitable Activities and Charitable Organizations”, citizens and legal entities have the right to freely carry out charitable activities on the basis of voluntariness and freedom of choice of its goals. No one has the right to limit the freedom to choose the goals of charitable activities established by federal law and the forms of its implementation.
In accordance with Art. 65 of the Civil Code of the Russian Federation, the plaintiffs did not prove that there was a malicious agreement between the representatives of the parties and (or) the disputed transaction was of an enslaving nature. In addition, the plaintiffs were not parties to the donation agreement dated April 5, 2000, and cannot be recognized as victims in the sense of Art. 179 of the Civil Code of the Russian Federation and, therefore, cannot file a claim to declare the said transaction invalid due to its servitude and (or) the presence of a malicious agreement between the representatives of the parties.
Thus, in this case, the courts recognized that it is permissible to transfer shares by a commercial organization to a public legal entity, in the dispute under consideration - to a constituent entity of the Russian Federation, under a donation agreement and this does not contradict the purposes of the donation established in Art. 582 Civil Code of the Russian Federation<2>.
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<2>Resolution of the Federal Antimonopoly Service of the East Siberian District in case No. A19-3225/04-13-6-Ф02-6009/05-С2 dated January 26, 2006
3. The list of entities that can act as donees under a donation agreement, inArt. 582The Civil Code of the Russian Federation is specified exhaustively and is not subject to broad interpretation. In the event that a donation is provided to an entity that cannot be included in the list specified in the legislation, this transaction may be declared invalid by the court in accordance with Art. 168 Civil Code of the Russian Federation. The legislator has introduced a presumption according to which commercial organizations cannot receive property for the implementation of generally useful tasks, since this contradicts their legal essence, aimed at making a profit from their own activities.
An illustrative example in this case is the following case. Limited Liability Company Trans-Invest-Sarov (hereinafter referred to as TIS LLC, the company) appealed to the Arbitration Court Nizhny Novgorod region with a claim against the Fund for the Development of Conversion Productions (hereinafter referred to as the Fund, FRKP) to invalidate the additional agreement dated April 28, 2004 No. 2 to the target financing agreement dated July 9, 2003 No. FR03-03/112 and to apply the consequences of the invalidity of the transaction by refund 6403870 rubles.
By the decision of the court of first instance dated March 14, 2003, left unchanged by the Resolution of the First Arbitration Court of Appeal dated May 24, 2006, the claim was rejected. When adopting judicial acts, both courts proceeded from the fact that the grant agreement dated April 25, 2002 N 6017, concluded by the Nuclear Threat Initiative, Inc. (hereinafter referred to as Corporation N TI) with the fund, the rules of Art. 582 of the Civil Code of the Russian Federation on donation, since the said agreement provided for financing the program “Creation and development of new civil industries in the city of Sarov”; TIS LLC, as a commercial organization, cannot be a recipient under a donation agreement; the target financing agreement dated July 9, 2003 N FR 03-03/112 is a loan agreement; The recipient of free technical assistance in the amount of $360,000 is considered to be the defendant, who has the right to use the funds received in the form of a donation to finance, on a repayable basis, commercial or non-profit organizations for generally beneficial purposes.
The plaintiff filed a cassation appeal against the judicial acts to the Federal Arbitration Court of the Volga-Vyatka District, in which he indicated that he was the recipient of gratuitous assistance under a donation agreement, and therefore considers the conclusions of the courts of first and appellate instances to be unlawful.
However, the cassation court did not agree with the arguments of the complaint and left the judicial acts unchanged. One of the conclusions of the court was the indication in the Resolution of the following circumstance: “Irrevocable transfer of funds would mean a donation (donation of property for general beneficial purposes with the condition of using the property for a specific purpose). However, due to Article 582According to the Civil Code of the Russian Federation, TIS LLC cannot be a donee under a donation agreement.
Under such circumstances, the court reasonably qualified the relationship of the disputing parties as borrowed and rightfully refused to satisfy the plaintiff’s stated demands.”<3>.
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<3>Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District of July 20, 2006 in case No. A43-46558/2005-27-1253/2-5-557.
4.According toclause 6 art. 582 The Civil Code of the Russian Federation does not apply to donations a number of rules on the gift agreement, including Art. Art. 578And581 Civil Code of the Russian Federation.
Of particular importance is the fact that the obligation to provide a donation does not pass from the donor to his legal successors, unlike general provisions about the promise of a gift in the future. Judicial and arbitration practice, in particular, confirms the fact that the obligations under the donation agreement lose force in the event of reorganization of the donor - a legal entity.
Control highways of the Arkhangelsk region "Arkhangelskavtodor" of the administration of the Arkhangelsk region (hereinafter - the "Arkhangelskavtodor" administration) filed a claim with the Arkhangelsk Region Arbitration Court against the closed joint-stock company "Lesozavod 25" (hereinafter - CJSC "Lesozavod 25") for the recovery of 2,000,000 rubles of debt under the contract dated March 20, 2001 N IP 686/01 for capital construction.
Before the decision was made, the plaintiff clarified the claims and asked the court to collect 2,000,000 rubles of debt arising as a result of failure to fulfill a monetary obligation under the work contract dated March 20, 2001 No. IP 686/01 for capital construction (as amended by the additional agreement dated January 26, 2001 No. 1) .
The claims were satisfied by the decision of the court of first instance.
By a decision of the appellate court dated April 25, 2005, the decision was canceled and the claim was rejected.
In the cassation appeal, the department asks that the decision of the appellate instance be canceled as adopted in violation of the norms of substantive and procedural law.
The cassator referred to the fact that when considering the case, the appellate court incorrectly interpreted the law (clause 6 of Article 582 of the Civil Code of the Russian Federation), and also independently went beyond the scope of consideration of the appeal, thereby violating the adversarial principle and the principle of equality of parties, placing the defendant in advantageous position.
However, during the trial of the case in the cassation court, no grounds were found to cancel the decision of the appellate court due to the following.
Between the management of "Arkhangelskavtodor" (customer), open joint stock company Arkhbum (hereinafter referred to as Arkhbum OJSC, investor) and Severstroy Limited Liability Company (hereinafter referred to as Severstroy LLC, contractor) entered into a contract dated March 20, 2001 No. IP 686/01 for capital construction.
Under the terms of the said agreement, the contractor assumes obligations for the construction of a new highway "Leshukonskoye - Pinega", section "Highway No. 1 - border with the Leshukonsky district", according to the project approved by the Arkhangelskavtodor department by order of January 28, 1998 N 9/01 -03.
Additional agreement dated December 26, 2001 No. 1 to the agreement dated March 20, 2001 established that the investors under the said agreement are Arkhbum OJSC, Tsiglomensky Timber Mill Limited Liability Company (hereinafter referred to as Tsiglomensky Timber Mill LLC) and CJSC "Sawmill No. 25".
Clause 4 is set out in new edition, according to which, in particular, investor-2 (Tsiglomensky Timber Mill LLC) undertakes in December 2001 to make a voluntary, free donation in favor of a non-profit organization (Arkhangelskavtodor management) in the amount of 2,000,000 rubles (based on the decision of the board of directors of Tsiglomensky LLC sawmill" dated November 20, 2001, protocol No. 2).
Tsiglomensky Timber Plant LLC did not fulfill this obligation.
According to an extract from the Unified State Register of Legal Entities dated October 1, 2001 No. 04-03/4-15170 Tsiglomensky Lumber Mill LLC ceased to exist through reorganization in the form of merger with CJSC Lesozavod N 25.
Based on the above, the Arkhangelskavtodor management filed a claim with the arbitration court against ZAO Lesozavod N 25 as the legal successor of Tsiglomensky Lumber Mill LLC for the recovery of 2,000,000 rubles.
According to paragraph 1 of Art. 582 of the Civil Code of the Russian Federation, a donation is the gift of a thing or right for generally beneficial purposes. In accordance with paragraph 2 of Art. 581 of the Code, the obligations of the donor who promised the gift pass to his heirs (legal successors), unless otherwise provided by the contract. However, by virtue of clause 6 of Art. 582 of the Code do not apply to donations. Art. 578 and 581 of the said Code.
Thus, the obligation of CJSC Tsiglomensky Sawmill to make a voluntary gratuitous donation to a non-profit organization (Arkhangelskavtodor management) in the amount of 2,000,000 rubles cannot be transferred to CJSC Sawmill No. 25 in connection with the reorganization of the former.
Based on the stated facts, the cassation court left the decision of the appellate court, which rejected the claim, unchanged, thereby confirming that the recovery of funds under the donation agreement from the donor’s legal successor as a result of the reorganization is impossible<4>.
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So, summarizing the above application examples in arbitration courts various levels norms of the Civil Code of the Russian Federation and other legal acts on the donation agreement, it should be noted that in recent years, disputes related to this type of donation agreement have increasingly arisen as the subject of litigation in the courts. And judging by the number of judicial acts being overturned, there are enough a large number of unresolved problems, which requires not only guiding clarifications from higher judicial authorities, but also adjustments to the legislative framework.
Analyzing the proposals of specialists studying this issue, we can note the following main directions for improving the legal norms regulating donations.
1. It is necessary to distinguish between donations and grants. The grant agreement must be entered as independent type transactions in the Civil Code of the Russian Federation, as well as others regulations, including those regulating scientific, educational and other activities of a social nature.
2. It is necessary to expand the list of grounds for canceling a donation to include non-use of the donated item by the recipient for a long period without good reason.
3. The provision of the Civil Code of the Russian Federation that the acceptance of a donation does not require the consent of third parties should be excluded completely or specified, since the application of this provision causes difficulties in practice.
Civil legislation highlights special kind donation - donation. Its legal regulation is devoted to Art. 582 of the Civil Code of the Russian Federation.
In everyday meaning, a donation means a voluntary gratuitous transfer of property, which does not quite coincide with the exact legal meaning of this term. What is often called a donation in everyday life is a donation, while a donation in the legal sense is a special type of gift.
According to Art. 582 of the Civil Code of the Russian Federation, a donation is a donation of a thing or right for generally beneficial purposes. Differences between a donation and a regular gift:
) the legislator, in comparison with donation, narrows the range of benefits that can be the subject of donation. If the subject of a gift agreement can be things, property rights, as well as release from property obligations, then only things or rights are transferred when donating. Most often this is cash. Exemption from property obligations cannot be the subject of a donation. This circumstance is due to the following feature of the donation;
) the circle of persons who can act as recipients of a donation is also narrowed. In particular, commercial organizations are excluded from it;
) under a gift agreement, the beneficiary is a specific person whose interests are satisfied through the transfer of the gift. The donation also goes to specific individuals, but it is used for generally beneficial purposes. Goals related to meeting the material and spiritual needs of social groups, social strata, social movements, the scientific, cultural, educational development of citizens, etc. should be considered generally useful. For example, when books are donated to the library so that they can be used by all readers in the future.
A donation is a targeted gift. If in a normal donation, both the legislator and the donor are indifferent for what purposes the donee will use the gift (to satisfy personal, family interests, to conduct business activities, and so on), then when donating, these goals are predetermined, and they are the motivating motive to the deal.
) finally, the last, purely formal difference. When making a donation, the donor is called the donor.
The recipients of the donation can be a wide range of people. Their list is given in clause 2, part 1, art. 582 of the Civil Code of the Russian Federation. Donations can be made to citizens, medical, educational institutions, social protection institutions and other similar institutions, charitable, scientific and educational institutions, foundations, museums and other cultural institutions, public and religious organizations, as well as the state, its subjects, municipalities. Summarizing this list, we can say that the subjects of donations can be citizens, non-profit organizations, state and municipal entities.
No one's permission or consent is required to accept a donation (Article 582 of the Civil Code of the Russian Federation). This rule is especially relevant for state and municipal organizations. This requires only the will of the recipient himself.
The donation is aimed at achieving generally beneficial goals. Therefore, in the case where, under a donation agreement, the acquirer is a citizen, the law requires that the donor determine for what purpose the transferred property or right should be used. Naturally, such an appointment should meet not personal, but generally beneficial goals. In the absence of instructions on the purpose of using the property, the donation of property to a citizen is considered an ordinary donation.
When making a donation to other persons, the donor has the right, but not the obligation, to establish a rule on the use of property for a specific purpose. This is due to the fact that the activity is not commercial organizations, government and municipalities in its essence and by force of law is aimed at ensuring general needs. If, when donating property to the specified persons, the donor does not determine a specific direction for its use, then such property is used by the recipients in accordance with its purpose.
A legal entity accepting a donation for a specific purpose must keep separate records of all transactions involving the use of donated property, which requires the application of special rules accounting(Clause 3, Part 2, Article 582 of the Civil Code of the Russian Federation). This is necessary to ensure control over the use of property for its intended purpose. The donor's receipt of such information gives him the opportunity to exercise his right to cancel the donation (more on this below). Thus, the rights of the donee in relation to the donated property are limited. It is necessary to use and dispose of property in strict accordance with the purposes of the donation.
If the use of donated property in accordance with the purpose specified by the donor becomes impossible due to changed circumstances, it can be used for another purpose only with the consent of the donor, and in the event of the death of a citizen-donor or the liquidation of a legal entity - the donor by a court decision (Clause 4 of Art. 582 of the Civil Code of the Russian Federation). This fairly strict procedure for changing the purpose of use of donated property is intended to ensure:
) firstly, strict adherence to the will of the donor;
) secondly, the interests of society or its part, to whose benefit the use of the donated property is directed;
) thirdly, preventing the possibility of abuse on the part of the donee and his use of the donated property for other purposes.
Here there is another difference between donation and donation. After the transfer of a gift, the relationship between the donor and the donee, based on the contract, actually ends, which cannot be said in the case of a donation.
The use of donated property not in accordance with the purpose specified by the donor or a change in this purpose in violation of the established rules gives the right to the donor, his heirs or another legal successor to demand the cancellation of the donation (clause 5 of Article 582 of the Civil Code of the Russian Federation). However, the donation cannot be canceled on other grounds provided by law for canceling the donation. In addition, according to Part 6 of Art. 582 of the Civil Code of the Russian Federation in these respects excludes legal succession (both for the donor and for the person for whose benefit the donation was intended).
From the point of view of the subject of the contract, the peculiarity of a donation is that only a thing or a property right can act as a gift, but not the release of the donee from property obligations, as is the case in a regular gift contract. Another feature of the donation agreement is the narrower subject composition of the recipients.
It is necessary to dwell separately on the frequently encountered methods of collecting anonymous donations, in which the donor is not individually identified for the recipient (for example, the use of boxes or other devices for receiving Money). Here it turns out to be impossible to record the identity of the donor and, accordingly, the amount he contributed. Meanwhile, the right, for example, to cancel a donation if provided for in paragraph 5 of Art. 582 of the Civil Code of the Russian Federation, conditions may arise for any donor, including anonymous ones. It is clear that in this case, when making a claim for the return of the donation, the plaintiff will have to prove the fact of the donation and its amount. It is not difficult to imagine possible abuses on the part of unscrupulous “donors” demanding the return of allegedly erroneously donated amounts. To some extent, this can be counteracted by drawing up an act of recalculation of the funds contained in it with a banknote inventory when opening the devices for collecting funds on a daily basis. In the event of a claim, such an act may be presented as written evidence.
Currently, the state's gratuitous transfer of property into the ownership of public, religious organizations, and funds according to estimates to state budgetary organizations is not a donation, but an act of implementation of financial relations.
At the same time, there are a number of cases when the state provides citizens with free assistance in the event of natural disasters and other emergencies. Such agreements should be considered as a special type of gift agreement.
According to the Federal Law of August 11, 1995 N 135-FZ “On Charitable Activities and Charitable Organizations”, charitable activities are understood as voluntary activities for the disinterested (free of charge or on preferential terms) transfer of property, including funds, to citizens or legal entities, disinterestedly performance of work, provision of services, provision of other support (Article 1).
From the point of view of the Civil Code, a donation is a type of charitable activity aimed at protecting subjective rights, including those affected by acts of a terrorist nature, since it also pursues generally beneficial goals through the gratuitous transfer of a thing or right (Article 582).
It should be emphasized that, regardless of points of view on the nature of the donation agreement, it is important that it is an effective civil law method of protecting the rights of victims of acts of a terrorist nature or natural disasters
So, the Civil Code of the Russian Federation provides for many ways to alienate real estate.
It is up to the owner to decide whether to donate or sell owned property, but regardless of the decision made, one must remember that the transaction must be carried out in accordance with the norms of current legislation
The Civil Code of the Russian Federation should be supplemented with the provision that state and municipal unitary enterprises, as well as state and municipal institutions, cannot forgive a debt without the consent of the owner, and do not have the right to donate not only real estate, but also movable property without the prior approval of the owner.
Conclusion
The gift agreement is traditional for Russian civil legislation.
The civil law institution of donation mediates the gratuitous transfer of ownership of property from one person to another. In the legally considered meaningful actions reflects current social traditions that have deep cultural and historical roots.
With the adoption of the second part of the Civil Code of the Russian Federation, the legal regulation of this set of legal relations has undergone significant changes. In the new Civil Code of the Russian Federation, the institution of a gift agreement has undergone significant modification. In particular, it highlighted a special type of gift - donation (Article 582 of the Civil Code of the Russian Federation).
To summarize, we can state that a direct donation (donation in the proper sense) is a gratuitous transfer of a thing into the possession of the donee by right of ownership, i.e. property legal act.
The gift agreement is one of the most common and frequently encountered civil law contracts in practical life.
In the entire history of the development of the civil law institution of donation, the most favorable conditions are currently being created in the Russian Federation for the real implementation of subjective rights to property transferred through inheritance and donation.
Distinguishing donation from similar institutions of civil law, as a rule, does not present much difficulty.
In connection with the growing role of law in modern society, there is an obvious need to improve the legal culture of citizens and the formation of a legal consciousness that corresponds to the changes that have occurred. Today everyone should have the necessary stock of legal knowledge, which ultimately cannot but affect the quality of life
List of used literature
I. Regulatory and legal acts
1.The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) // Rossiyskaya Gazeta, No. 7, 01/21/2009.
2. Civil Code of the Russian Federation of November 30, 1994 N 51-FZ Part 1 (as amended on December 27, 2009) // Collection of Legislation of the Russian Federation, 1994, N 32, Art. 3301, SPS Consultant Plus
Civil Code of the Russian Federation Part 2 (as amended on July 17, 2009) // Collection of Legislation of the Russian Federation, January 29, 1996, No. 5, Art. 410
Civil Code of the Russian Federation (Part Three) dated November 26, 2001 N 146-FZ (as amended on June 30, 2008) // Collection of Legislation of the Russian Federation, December 3, 2001, N 49, Art. 4552
Civil Code of the Russian Federation (Part Four) dated December 18, 2006 N 230-FZ (as amended on February 24, 2010) // Collection of Legislation of the Russian Federation, December 25, 2006, N 52 (1 part), art. 5496
Civil Procedure Code of the Russian Federation dated November 14, 2002 N 138-FZ (as amended on April 30, 2010) // Collection of Legislation of the Russian Federation, November 18, 2002, N 46, Art. 4532
Arbitration Procedural Code of the Russian Federation dated July 24, 2002 N 95-FZ (as amended on April 30, 2010) // Collection of Legislation of the Russian Federation, July 29, 2002, N 30, Art. 3012
Tax Code of the Russian Federation (Part Two) dated 05.08.2000 N 117-FZ (as amended on 30.07.2010) // Collection of Legislation of the Russian Federation, 07.08.2000, N 32, art. 3340
Family Code of the Russian Federation dated December 29, 1995 N 223-FZ (as amended on June 30, 2008) // Collection of Legislation of the Russian Federation, January 1, 1996, N 1, Art. 16.
Federal Law of July 21, 1997 N 122-FZ (as amended on June 17, 2010) “On state registration of rights to real estate and transactions with it” // Collection of Legislation of the Russian Federation, July 28, 1997, N 30, Art. 3594
Federal Law of May 26, 1996 N 54-FZ (as amended on August 22, 2004) “On the Museum Fund of the Russian Federation and Museums in the Russian Federation” // Collection of Legislation of the Russian Federation 05/27/1996, N 22, Art. 2591
Federal Law of August 11, 1995 N 135-FZ (as amended on December 30, 2008) “On Charitable Activities and Charitable Organizations” // Collection of Legislation of the Russian Federation, August 14, 1995, N 33, Art. 3340
Federal Law of March 14, 1995 N 33-FZ (as amended on December 27, 2009) “On Specially Protected Natural Areas” // Collection of Legislation of the Russian Federation, March 20, 1995, N 12, Art. 1024
Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 N 104 “Review of the practice of application by arbitration courts of the norms of the Civil Code of the Russian Federation on some grounds for termination of obligations” // Bulletin of the Supreme Arbitration Court of the Russian Federation, No. 4, 2006 (Review)
Literature
16.Burkova A. Some civil law issues related to the gratuitousness of contracts //Lawyer, 2009, No. 2
17. Civil law: Textbook. T.2/ Ed. A.. G. Kalpina.- M.: Yurist, 2003.- 541 p.
Civil law: Textbook. T.2/ Ed. A.P. Sergeeva.- M.: Prospekt, 2000.- 718 p.
Civil law: Textbook: In 4 volumes. Volume 3 Law of obligations: Textbook./ Rep. Ed prof. E.A. Sukhanov.- M.: Wolters Kluwer 2006- 735 p.
Contract law. Agreements on the transfer of property. (Book 2) (4th edition) // M.I. Braginsky, V.V. Vitryansky M: Statute, 2002-467 p. .Commentary to the Civil Code of the Russian Federation (article-by-article)./ Editor-in-chief Sadikov O.N., M., 1996, 448 p.
Judge's handbook civil cases/Ed. N.K. Tolcheeva-M: Prospekt, 2008
Nedotsuk N.A. Donation agreement -M: Eksmo, 2006.-192 p.
Nikiforova E.I. Purchase and sale, donation or inheritance // Housing Law, 2009, N 5
Novitsky I.B. Fundamentals of Roman civil law. M., 1990- 323 pp..
Piskunova M.G. Real estate: rights and transactions. - M: Yurayt-Izdat, 2006. - 710 p.
Savelyev V.A. Donation in Roman law and modern legislation // Journal of Russian Law, 2007, No. 3
Semina E.A. Sell or donate? //Lawyer, 2010, N 1
Urukov V.N., Urukova A.V. About the moment of concluding a contract of donation of real estate in the event of the death of the donor // Law and Economics, 2009, N 12
Shevchenko E.E. Methods for determining the terms of civil contracts: legislation and arbitrage practice// Law, 2007, N 3-S.118-127.
Shershenevich G.F. Textbook of Russian civil law. M., 1995.
Erdelevsky A. Fear the Danaans who bring gifts!//Business Advocate, 2000, N 21
Annex 1
DONATION AGREEMENT
City of Yekaterinburg, Sverdlovsk region
The twenty-sixth of July two thousand and nine
We, Zybova Alampia Nikiforovna, Zybov Alexander Nikolaevich, living in the city of Yekaterinburg, on Chekhov Street, in house 131, apt. 65, and Vladimir Ivanovich Baralgin, living in the city of Yekaterinburg, on Tokarey Street, in building 3, have entered into this agreement as follows:
Zybova A.N., Zybov A.N. presented to Baralgin V.I. apartment No. 65 belonging to them by right of joint ownership, located in the city of Yekaterinburg, on Chekhov Street, in building 131, consisting of two rooms with a living area of 28.80 sq. m. m, useful area 47.90 sq. m.
The donated apartment belongs to A.N. Zybova. and Zybov A.N. on the right of joint ownership on the basis of an agreement for the transfer of an apartment into the ownership of citizens, concluded on November 5, 1992, registered with the Technical Inventory Bureau of the city of Yekaterinburg on March 1, 1993 under N L-51-25 5688, and a certificate from the BTI of the city of Yekaterinburg dated July 14, 1995 for N 3878.
Baralgin V.I. accepts the specified gift.
The donated apartment is valued by the parties at 426,085 (four hundred twenty-six thousand eighty-five) rubles.
The inventory assessment of the donated apartment is 426,085 (four hundred twenty-six thousand eighty-five) rubles.
Before this agreement is completed, the donated apartment has not been sold to anyone, has not been mortgaged, is not in dispute and is not under prohibition (seizure).
The costs of completing this agreement are paid by the donee V.I. Baralgin.
One copy of the agreement is kept in the files of the notary _________, the other is issued to V.I. Baralgin.
SIGNATURES OF THE PARTIES:
___________________________________________________
July 2009, this agreement was certified and read aloud by me, ______________________, a notary of the city of Yekaterinburg, Sverdlovsk region. The agreement was signed by the parties in my presence. The identities of the parties have been established, their legal capacity, as well as the ownership of the apartment by A.N. Zybova. and Zybov A.N. verified.
This agreement is subject to state registration with the state registration authorities of the Sverdlovsk region.
Registered in the register for N _________________
Appendix 2
Application for spouse's consent to donate an apartment
Notary _____________ Ekaterinburg
from Zaitsev Mikhail Polikarpovich,
residing at:
Ekaterinburg, st. Morozova, 190, apt. 10
STATEMENT
I, Mikhail Polikarpovich Zaitsev, hereby express my consent to the donation by my wife, Victoria Ivanovna Zaitseva, of the apartment we acquired during marriage, located at the address: Ekaterinburg, st. Morozova, 190, apt. 10, consisting of three rooms with a useful area of 58.7 (fifty-eight point seven) square meters. m, including residential - 41.2 (forty-one point two) sq. m, Semyon Romanovich Korovin, living at the address: Ekaterinburg, st. Slesarei, 85, apt. 95.
Signature __________________________________________________
May twenty-second, one thousand nine hundred and ninety-nine.
The statement was read aloud.
I, ____________, notary of the city of Yekaterinburg, attest to the authenticity of M.P. Zaitsev’s signature, which was made in my presence. The identity of the person who signed the document has been established.
Registered in the register under N ________________
Charged at the rate of _____________________________
Notary _______________________________________________
When it comes to registering real estate or other valuable property, it is important to first understand all the intricacies of transferring ownership rights in order to do everything correctly and legally competently in order to avoid all sorts of risks and misunderstandings. There are a lot of methods for alienating property, so it is important to take this point into account when choosing best option, since each of them has its own advantages and disadvantages, and a list of certain restrictions established by the legislation of the Russian Federation. In this regard, citizens are often interested in what the differences are between a gift agreement and a donation. Despite the fact that donation is a type of gift, some differences still exist between them.
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What is donation
Alienation of property or a valuable thing by gift involves the complete transfer of ownership rights to a third party free of charge. Immediately after the conclusion of the gift agreement, the legal successor acquires the rights and obligations that are assigned to him as a result of accepting the gift. The agreement comes into force after registration of the document with the local authorities of Rosreestr.
Characteristic features of the donation procedure
A distinctive feature of a gift is that the transaction is gratuitous, that is, the legal successor becomes the legal holder of the gift completely free of charge. The donor has no right to demand anything from the recipient in return - neither money, nor the exchange of property, nor the provision of any services.
As soon as ownership rights are transferred to the donee, he can dispose of the gift at his own discretion, regardless of the opinions and wishes of the donor. If the donor, when drawing up a gift agreement, puts forward any conditions in relation to the donee, which he must fulfill in order to receive property as a gift, such an agreement has every reason to invalidate it and cancel the transaction.
Pros and cons of giving
Despite the fact that the fundamental principle of donation is gratuitousness, this method of transferring property rights has its advantages and disadvantages.
Table. Pros and cons of giving.
| Advantages | Flaws |
| Comes into force after signing the agreement and registering it with Rosreestr | The donor does not have the opportunity to set his own requirements and conditions for the donee, since this encumbrance will be a sufficient basis for the annulment of the contract |
| There are circumstances in which it is possible to challenge a contract in court and declare it invalid (a plus for the donor) | The agreement can be challenged both by the donor himself and by third parties whose legitimate property interests were infringed by this transaction. |
| The donee becomes the absolute copyright holder of the object of the transaction after registration of the agreement and receives the right to dispose of the property at his own discretion | There are certain restrictions established by the legislation of the Russian Federation (it is prohibited to transfer property rights as a gift between commercial organizations, etc.) |
| The deed of gift is a final and irrevocable decision without the possibility of making amendments, changes and conditions for the recipient of the gift | There is little chance of challenging the contract in court (minus for the donor) |
Attention! The gift agreement, when it is drawn up by unrelated persons, obliges the recipient of the gift to pay personal income tax (NDFL) in the amount of 13% of the transaction for residents and 30% for non-residents.
What is a donation
The concept of the term “donation” is defined by the Law of the Russian Federation, namely Article 582 of the Civil Code of the Russian Federation, which states that a donation is a separate form of the act of donation, which is burdened with a generally beneficial purpose, that is, it is made to achieve some specific purpose. The transaction agreement clearly defines the intended purpose of the donated valuables, therefore property transferred to a third party in this way can be used only for the purposes strictly specified in the agreement, which causes some inconvenience and limits the capabilities of the successor. This feature allows you to easily distinguish between a gift agreement and a donation agreement. Most issues related to the latter are regulated by Article 32 of the Civil Code of the Russian Federation, since the very fact of sacrificing property and things is considered a donation.
When a donor makes a donation, as well as when giving a gift, the only main principle- gratuitous. The property is transferred to a third party free of charge. The donor transfers property rights absolutely free of charge and has no right to demand any remuneration from the successor for the gift.
Attention! If the person making the donation refuses to establish a specific purpose in the contract, then this action will not be considered a donation, but an ordinary gift, since the purpose is the main difference between a donation and a gift.
Article 582 of the Civil Code of the Russian Federation establishes the obligation to determine the intended purpose of donated property only for individuals, and if we're talking about about legal entities, they are not obliged to determine its purpose when donating, but can take advantage of this opportunity if they wish. At this moment, the possibility of determining the intended purpose cannot be regarded as a counter-obligation of the recipient of valuables (property, money, securities, etc.). Due to the fact that it is not possible to ignore the generally beneficial nature of the donation, this act is committed exclusively at charitable ambushes. This, in turn, led to the fact that the circle of eligible subjects for making a donation was noticeably narrowed.
If the recipient of the benefit violates its intended purpose, the transaction may be declared invalid, followed by its cancellation and the transfer of the donated object to the former owner. The legislation of the Russian Federation does not provide for or exercise control over the fulfillment of the intended purpose established by the contract, therefore it is more expedient and logical to consider this issue within the framework of the concluded contract. But federal legislation provides for cases when it is possible to change the initially determined purpose of a donated gift. These are situations when:
- the person making the donation agrees with the need to make amendments and changes to the intended purpose;
- there is no possibility to use the donation for the purpose established in the contract;
- the donor died ( individual) or it is liquidated/reorganized (legal entity).
If the person who donated the property is no longer alive, then the decision to change the assignment can be made exclusively in court.
Characteristics of the donation
Home distinctive feature The donation of valuables by donation is the establishment by the donor of the intended purpose for things or rights of claim that he sacrifices in favor of a third party (individual or legal). It is important that the purpose of the donation be exclusively for general benefit.
Attention! Federal legislation prohibits donations to commercial organizations, since commercial interests and goals a priori cannot be generally beneficial, therefore such a transaction is subject to invalidation and can be annulled.
According to Russian law, donations must always be made to meet the needs of:
- social layers;
- the general population;
- public organizations and movements.
Regardless of the fact that the recipient of the property or things sacrificed is only one specific person - the donee, many should benefit from it. A donor can be anyone, unless he belongs to one of the categories that, according to the Civil Code of the Russian Federation, do not have the right to take part in a gift and donation transaction, namely:
- a young child under 18 years of age;
- incompetent citizen;
- proxies of the above-mentioned citizens.
Paragraph 1 of Article 582 of the Civil Code of the Russian Federation also establishes the circle of those persons who have the right to accept benefits from donors, that is, to participate in the donation transaction:
- subjects of the Russian Federation;
- state;
- religious organizations;
- educational and cultural organizations and foundations;
- charitable foundations;
- public organizations;
- citizens;
- museums;
- budgetary organizations;
- social protection institutions.
This article talks about standard methods solutions legal issues, but each case is individual. If you want to find out how to solve your particular problem, contact our consultant absolutely FREE!
This list of entities is exhaustive, there are no other options, so if the donation agreement is drawn up in favor of someone who does not belong to one of the above categories, it may be considered invalid.
The transaction is a bilateral agreement, so the donor must obtain the consent of the second party, that is, the donee, since as a result of the concluded agreement, the latter, along with the rights to the property, receives an encumbrance in the form of an obligation to use it strictly for its intended purpose. If the donee does not agree with the terms, he has every right to refuse this benefit and not sign the contract.
To receive a donation, the recipient does not need to receive special permission from someone (higher organizations, local authorities, etc.). An important condition for drawing up a donation agreement is to specify the subject of the transaction, that is, what is transferred to a third party free of charge. The criteria for specifying the object of the donation are regulated by paragraph 2 of Article 572 of the Civil Code of the Russian Federation. If the contract does not specifically describe the object of the transaction, it may be declared invalid.
Advantages and disadvantages
According to civil law, a donation is the same transaction involving two parties who sign an agreement giving them rights and obligations, and therefore also has its advantages and disadvantages.
Table. Pros and cons of donating.
| Advantages | Flaws |
| The donor has the right to control the process of disposing of the benefits transferred by him to a third party | Burdens the recipient with the obligation to use the gift strictly for its intended purpose and for specific purposes |
| The agreement comes into force immediately after the conclusion of the transaction | Does not require any permission to accept a benefit as a donation |
| The opportunity to challenge the agreement and have it declared invalid with the subsequent transfer of property (things) to their former owner (donor) | The circle of subjects and objects of the transaction is limited |
| The ability to independently determine a generally useful purpose | High risk of contract cancellation |
As can be seen, there are more disadvantages than advantages for the donee, since he will also have to fulfill the obligation arising from the agreement, as well as provide a full account of the use of the benefit transferred to him as a donation.
Important! Despite the fact that a donation is a gratuitous act of transfer of property rights, a donation differs from a gift in that it is not regarded as profit and is not taxed, regardless of the relationship between the donor and the recipient.
Key Differences Between Gifting and Donation
To understand the difference between sacrifice and gift, it is necessary to analyze their similarities and differences according to certain criteria.
Table. Difference between gift and donation.
| Criteria for comparison | Donation | Donation |
| The basic principle | Free transaction | Free and generally beneficial purpose |
| Ability to set specific requirements and conditions | Prohibited by law. If the donor makes demands on the donee, the agreement may be canceled | Is prerequisite agreements. Without determining the general useful purpose of the donated property or things, the transaction loses legal force and is automatically reclassified as a donation agreement |
| The need to pay taxes | No, except in situations where the recipient of the gift is not closely related to the donor | No. Donated property, unlike a gift, is not regarded as income and is not subject to taxation in accordance with Article 251 of the Tax Code of the Russian Federation (Tax Code of the Russian Federation) |
| Possibility of invalidating the contract | There are, in exceptional cases:
|
Eat. This is possible in the following cases:
|
| Presence of encumbrance | No and cannot be | The encumbrance is the exclusively generally beneficial purpose of the donated benefits. |
| Availability of restrictions | Eat:
|
Eat:
|
As you can see, there is not so much difference between a gift and a donation, since these are two agreements that are almost identical in meaning and content. The main distinguishing factor between them is that the donated values are a gift with an encumbrance in the form of an obligation to use the property strictly for a generally useful purpose, determined by the agreement. Unlike giving, donation is always charity.
Article . Donation agreement
1. Under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from a property obligation to himself or to a third party .
If there is a counter transfer of a thing or right or a counter obligation, the contract is not recognized as a donation. The rules provided for in paragraph 2 of Article 170 of this Code apply to such an agreement.
A promise to transfer a thing or property right to someone free of charge or to relieve someone from a property obligation (promise of donation) is recognized as a gift agreement and binds the promisee if the promise is made in the proper form (clause 2 of Article 574) and contains a clearly expressed intention to make a gratuitous gift in the future. transfer of a thing or right to a specific person or release him from a property obligation.
A promise to donate all of one’s property or part of one’s entire property without indicating a specific object of donation in the form of a thing, right or release from an obligation is void.
An agreement providing for the transfer of a gift to the donee after the death of the donor is void.
The rules of civil inheritance law apply to this type of gift.
Article . Refusal of the donee to accept the gift
1. The recipient has the right to refuse it at any time before the gift is transferred to him. In this case, the gift agreement is considered terminated.
If the gift agreement is concluded in writing, the refusal of the gift must also be made in writing. If the gift agreement is registered (clause 3 of Article 574), refusal to accept the gift is also subject to state registration.
If the gift agreement was concluded in writing, the donor has the right to demand from the donee compensation for real damage caused by refusal to accept the gift.
Article . Form of gift agreement
1. A donation accompanied by the transfer of a gift to the donee may be made orally, except for the cases provided for in paragraphs 2 and 3 of this article.
The transfer of a gift is carried out through its delivery, symbolic transfer (delivery of keys, etc.) or delivery of title documents.
A contract of donation of movable property must be made in writing in cases where:
the donor is a legal entity and the value of the gift exceeds three thousand rubles; (as amended by Federal Law No. 280-FZ of December 25, 2008)
the contract contains a promise of a gift in the future.
In the cases provided for in this paragraph, a gift agreement made orally is void.
A real estate donation agreement is subject to state registration.
Article . Prohibition of donation
1. Donation is not allowed, with the exception of ordinary gifts, the value of which does not exceed three thousand rubles: (as amended by Federal Law No. 280-FZ of December 25, 2008)
1) on behalf of minors and citizens recognized as incompetent, their legal representatives;
2) employees of educational organizations, medical organizations, organizations providing social services, and similar organizations, including organizations for orphans and children without parental care, citizens who are in them for treatment, maintenance or upbringing, spouses and relatives these citizens; (as amended by Federal Law No. 49-FZ dated April 24, 2008)
3) persons holding government positions in the Russian Federation, government positions in constituent entities of the Russian Federation, municipal positions, civil servants, municipal employees, employees of the Bank of Russia in connection with their official position or in connection with the performance of their official duties; (as amended by Federal Law No. 280-FZ of December 25, 2008)
4) in relations between commercial organizations.
2. The prohibition on donations to persons holding government positions in the Russian Federation, government positions in constituent entities of the Russian Federation, municipal positions, civil servants, municipal employees, employees of the Bank of Russia, established by paragraph 1 of this article, does not apply to cases of donation in connection with protocol events, business trips and other official events. Gifts received by persons holding government positions of the Russian Federation, government positions of constituent entities of the Russian Federation, municipal positions, civil servants, municipal employees, employees of the Bank of Russia and the value of which exceeds three thousand rubles are recognized, respectively, as federal property, property of a constituent entity of the Russian Federation or municipal property and are transferred by employees according to an act to the body in which the specified person holds a position. (Clause 2 introduced by Federal Law dated December 25, 2008 N 280-FZ)
Article . Gift restrictions
1. Legal entity to which the thing belongs by right economic management or operational management, has the right to donate it with the consent of the owner, unless otherwise provided by law. This restriction does not apply to ordinary gifts of small value.
Donation of property that is in common joint ownership is permitted with the consent of all participants in joint ownership in compliance with the rules provided for in Article 253 of this Code.
The donation of the right of claim belonging to the donor to a third party is carried out in compliance with the rules provided for by this Code.
Donation through the fulfillment of his obligations to a third party for the donee is carried out in compliance with the rules provided for in paragraph 1 of Article 313 of this Code.
A gift through the transfer by the donor of the donee's debt to a third party is carried out in compliance with the rules provided for by this Code.
A power of attorney for making a gift by a representative, in which the donee is not named and the subject of the gift is not indicated, is void.
Article . Refusal to execute a gift agreement
1. The donor has the right to refuse to fulfill an agreement containing a promise to transfer an item or right to the donee in the future, or to release the donee from a property obligation, if after the conclusion of the agreement the property or marital status or health status of the donor has changed so much that the execution of the agreement under new conditions will lead to a significant decrease in his standard of living.
The donor has the right to refuse to fulfill an agreement containing a promise to transfer a thing or right to the donee in the future, or to release the donee from a property obligation, on grounds that give him the right to cancel the donation (clause 1 of Article 578).
The donor's refusal to execute the gift agreement on the grounds provided for in paragraphs 1 and 2 of this article does not give the donee the right to demand compensation for losses.
Article . Cancellation of donation
1. The donor has the right to cancel the donation if the donee has made an attempt on his life, the life of one of his family members or close relatives, or has intentionally caused bodily harm to the donor.
In case of intentional deprivation of life of the donor by the donee, the right to demand in court the cancellation of the donation belongs to the heirs of the donor.
The donor has the right to demand in court the cancellation of the donation if the recipient’s handling of the donated item, which is of great non-property value to the donor, creates a threat of its irretrievable loss.
At the request of an interested person, the court may cancel a donation made by an individual entrepreneur or a legal entity in violation of the provisions of the law on insolvency (bankruptcy) at the expense of funds related to his business activities during the six months preceding the declaration of such a person as insolvent (bankrupt).
The gift agreement may stipulate the donor's right to cancel the gift if he survives the donee.
In case of cancellation of the donation, the donee is obliged to return the donated item if it was preserved in kind at the time of cancellation of the donation.
Article . Cases in which refusal to execute a gift agreement and cancellation of a gift are impossible
The rules on refusal to execute a gift agreement (Article 577) and on the cancellation of a gift (Article 578) do not apply to ordinary gifts of small value.
Article . Consequences of harm due to defects in the donated item
Damage caused to the life, health or property of the donee due to defects in the donated item is subject to compensation by the donor in accordance with the rules provided for in Chapter 59 of this Code, if it is proven that these defects arose before the transfer of the item to the donee, are not obvious and the donor, although and knew about them, did not warn the recipient about them.
Article . Succession upon promise of donation
1. The rights of the donee, to whom a gift is promised under a gift agreement, do not pass to his heirs (legal successors), unless otherwise provided by the gift agreement.
The obligations of the donor who promised the gift pass to his heirs (successors), unless otherwise provided by the gift agreement.
Article . Donations
1. A donation is the donation of a thing or right for generally beneficial purposes. Donations can be made to citizens, medical, educational institutions, social protection institutions and other similar institutions, charitable, scientific and educational organizations, foundations, museums and other cultural institutions, public and religious organizations, other non-profit organizations in accordance with the law, as well as the state and other subjects of civil law specified in Article 124 of this Code. (as amended by Federal Laws dated December 30, 2006 N 276-FZ, dated July 2, 2013 N 185-FZ)
No one's permission or consent is required to accept a donation.
The donation of property to a citizen must be, and to legal entities may be conditional on the donor using this property for a specific purpose. In the absence of such a condition, the donation of property to a citizen is considered an ordinary donation, and in other cases the donated property is used by the donee in accordance with the purpose of the property.
A legal entity accepting a donation for which a specific purpose has been established must keep separate records of all transactions involving the use of the donated property.
Unless a different procedure is established by law, in cases where the law does not establish a different procedure, in cases where the use of donated property in accordance with the purpose specified by the donor becomes impossible due to changed circumstances, it can be used for another purpose only with the consent of the donor, and in in case of death of a citizen-donor or liquidation of a legal entity - donor by a court decision. (as amended by Federal Laws dated December 30, 2006 N 276-FZ, dated December 30, 2006 N 276-FZ)
The use of donated property not in accordance with the purpose specified by the donor or changing this purpose in violation of the rules provided for in paragraph 4 of this article gives the right to the donor, his heirs or another legal successor to demand cancellation of the donation.
