1. Introduction to gift agreements: definition and legal basis
Gift agreements are a special type of contract under German law. They are defined as contracts whereby one party makes a donation from its assets to another party without receiving anything in return. This type of contract is regulated in the German Civil Code (BGB), in particular in Sections 516 to 534.
- Key features: A key feature of a gift agreement is that it is gratuitous. Unlike purchase or exchange agreements, in which services are exchanged, this involves a unilateral transfer of assets.
- Formal requirements: Promises of gifts must be notarized in order to be valid, in accordance with Section 518 of the German Civil Code (BGB). This formal requirement serves to protect the donor from hasty transfers of assets.
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Distinction from other types of contracts
It is important to distinguish gift agreements from other similar types of agreements in order to avoid legal misunderstandings.
- Purchase agreement: Unlike a gift agreement, which involves a transfer without consideration, a purchase agreement is based on the principle of mutual exchange of goods and price.
- Loan agreement: While gifts cannot be reclaimed, a loan agreement is characterized by the recipient's obligation to repay the loan.
- Barter agreement: In a barter agreement, goods or services are exchanged without monetary payments, which distinguishes it from the unilateral transfer of a gift agreement.
This distinction is essential, as it not only determines the type of contractual relationship, but also has different legal consequences. For example, different warranty obligations apply to a purchase agreement than to a gift agreement.
Contracting parties in a gift agreement: Requirements for the contracting parties
In order to conclude a legally valid contract, the parties to a gift agreement must meet certain legal requirements. These requirements include, in particular, the legal capacity and contractual capacity of the persons involved.
Legal capacity:
- Legal capacity is the fundamental ability to be the bearer of rights and obligations.
- In Germany, every natural person has legal capacity from birth, as stipulated in Section 1 of the Civil Code (BGB).
- This means that every human being can be the holder of rights and obligations from birth.
Legal capacity:
- Legal capacity is the ability of a person to independently and effectively conduct legal transactions.
- In Germany, a person who has reached the age of 18 has full legal capacity, in accordance with Section 2 of the German Civil Code (BGB).
- Before reaching the age of majority, a person has limited legal capacity, which means that legal transactions are only valid with the consent of their legal representatives, unless they are transactions that merely bring the minor a legal advantage (Section 107 of the German Civil Code (BGB)).
When concluding a gift agreement, it is therefore crucial that the parties involved have legal capacity and the necessary legal competence. In the case of minors or persons who do not have full legal capacity, their legal representatives must be involved in the conclusion of the agreement. In addition, gifts to minors may require the approval of the family court, especially if significant assets are involved.
These legal conditions are essential to ensure the validity of the gift agreement and to protect the interests of all parties involved.
Gift agreement Contractual partner Template
When drafting a template for a gift agreement, it is important to formulate all essential elements precisely and clearly. Such a template serves as a model and should provide the basis for a legally valid agreement that can be customized to individual needs. Below you will find an example of a gift agreement that can serve as a template:
Donation agreement
Between
Donor: (name, address, date of birth, ID number)
and
Donee: (name, address, date of birth, ID number)
Preamble:The parties intend to make a gift within the meaning of Section 516 BGB. The donor intends to transfer an asset to the donee free of charge.
What does "giver" mean, and what does "recipient" mean?
In the context of a gift agreement, the terms "donor" and "donee" are of central importance and have specific legal definitions:
Schenker:
- The donor is the person who gives something away.
- He voluntarily transfers an asset (e.g. money, real estate, valuables) to another person free of charge.
- This is done without any expectation or demand for anything in return.
Recipient:
- The recipient is the person who receives the gift.
- He is the recipient of the gratuitous gift from the donor.
- The recipient acquires ownership or rights to the gifted item.
Special considerations for minors and persons under guardianship
Special provisions apply to gift agreements involving minors or persons under guardianship.
- Minors: Minors, i.e. persons under the age of 18, have limited legal capacity. In principle, their legal representative, usually their parents, must act on their behalf when making gifts. In addition, significant transactions, such as large gifts, require the approval of the family court in accordance with Section 1643 of the German Civil Code (BGB).
- Persons under guardianship: Persons under legal guardianship require the consent of their guardian for gifts. If the guardian is the donor, approval from the guardianship court may be required to avoid conflicts of interest.
These regulations serve to protect individuals whose ability to make free and informed decisions is limited. They are intended to ensure that gifts are not made to the detriment of these individuals and that their interests are adequately taken into account.
Formal requirements and legal significance: Legal formal requirements according to the German Civil Code (BGB)
Compliance with formal requirements is crucial for the validity of a gift agreement. According to the German Civil Code (BGB), there are specific requirements regarding the form of such an agreement.
- Principle of written form: For simple gifts, the written form is often sufficient. This means that the contract must be set out in writing and signed by both parties.
- Notarization: According to Section 518 (1) of the German Civil Code (BGB), a promise of donation must be notarized. This provision aims to protect the donor from hasty transfers of assets and to document the seriousness of the intention to donate.
Notarization and exceptions
Notarization of a gift agreement is generally required, but there are important exceptions:
- Handshake gifts: If the donor fulfills the promised obligation immediately, i.e., by handing over the gifted item, there is no need for notarization. This is referred to as a handshake gift.
- Gifts of low value: Notarization is not usually required for items of low value.
Consequences of formal violations in gift agreements
Failure to comply with the prescribed form has significant legal consequences:
- Nullity of the contract: A promise of donation made without the required form is null and void pursuant to Section 125 of the German Civil Code (BGB). This means that the contract is legally invalid.
- Remedy for the defect in form: A remedy for the defect in form is possible if the promised performance is actually carried out. In this case, the gift becomes effective despite the original defect in form.
The strict formal requirements in gift law serve to protect the parties involved and ensure legal certainty. They ensure that both parties understand the implications of their decision and act voluntarily.
Who must sign the gift agreement?
A gift agreement is a legally valid document that regulates the transfer of property or rights from one party (the donor) to another (the recipient) without consideration. According to Section 518 of the German Civil Code (BGB), a gift must generally be notarized in order to be valid, unless it is a manual gift. The signature of all parties involved is a central component in documenting their consent.
Giver and recipient:
- The signatures of the donor and the recipient are essential to confirm the consent of both parties to the gift.
- This ensures that both parties understand the gift and agree to it voluntarily.
Legal representatives for minors or persons under guardianship:
- If one of the parties is a minor or under guardianship, the signature of the legal representative or guardian is required.
- This serves to protect the minor or ward and ensures that the gift is in their best interests.
In addition, it should be noted that gifts of real estate pursuant to Section 311b (1) of the German Civil Code (BGB) must be notarized. This also applies to gifts made subject to a condition, as described in Section 525 BGB.
In the case of gifts to minors or persons under guardianship, the guardianship court must also be involved in accordance with Section 1821 BGB or Section 1908i in conjunction with Section 1821 BGB in order to obtain approval for the contract.
What should be considered in a gift agreement?
When concluding a gift agreement, there are several important aspects to consider:
- Formal requirements: Compliance with legal formal requirements, in particular notarization, is crucial.
- Complete details: All relevant information about the gift should be clearly and precisely recorded in the contract.
- Voluntariness and sincerity: It must be ensured that the donation is made voluntarily and sincerely.
Is a gift agreement a unilateral legal transaction?
A gift agreement is, by its nature, a bilateral legal transaction, as it requires the agreement of two parties.
- Mutuality: Although the performance (the gift) is unilateral, the contract requires the consent of both parties. It is therefore considered a bilateral legal transaction.
Can a gift be revoked?
Reversing a gift is possible under certain circumstances, but it is usually complex and legally challenging.
- Revocation: A gift agreement may be revoked under certain circumstances, for example, in the event of gross ingratitude on the part of the recipient or if the donor is no longer able to support themselves after making the gift.
- Contestation: The gift may be contested if it was made under deception, threat, or error.
In any case, it is advisable to seek legal advice when considering revoking a gift, as this raises complex legal issues.
