Ministry of Education of the Republic of Moldova

Moldova State University

Faculty of Law

ReportTheme: Contract of Donation in the legal sytem of

republic of Moldova

Prepared by: Furculi ă Corneliaț

Gr 310 (English Department)

Chi inăuș

2014

Table of Contents

Introduction.............................................................................................................3

Legal nature of the donation...................................................................................4

Definition of Donation Contract...............................................................................5

Legal Characters and Pecularities of the Donation Contract....................................5

Elements of the Donation Contract.........................................................................6

The Form of the Donation Contract.........................................................................8

Specific efects and the legal regime of the donation contract.................................9

Termination of donation contract..........................................................................11

Conclusion..............................................................................................................13

Bibliography...........................................................................................................14

Introduction

The donation, as a phenomenon, appeared long time ago, people were always making gifts to

the others. Donation can also be found in the Roman law, system from which the whole

contintental law system has been inspired. Though through the history and even today it is

qualified in different ways we can not negate the importance of the effects of the donation

contract.

The contract of donation comes from the concept of property itself. Thus, the property right

has some atributes, one of which is to be able to dispose of the good you are the owner of, this

atribute is called: ius abutendi. This possibility comes from the nature of property, the owner

being able not to use his good at all, he may transform it, destroy or transmit to the other person.

Everyone can dispose of hiw property in two different ways; with onerous title or with a free

title. When a good is transmitted with a gratuitous character, the one that transmits his rights or

goods does not have the aim to gain something in return for his transmission. In the Russian

Doctrine were expressed some opinions that this character is against the nature of the civil

relationship themselves, because it hasn’t a patrimonial relationship expressed in gaining a

proffit. Analysing the transmission of goods with any reciprocal interest however was argued to

be considere a civil relationship, because despite the fact that the owner of the good actually does

not gain anything, the qualities of the good through the transmission remain the same. Some

authors state that there is no doubt and there is no reason to argue why donation shall be

considered as an object of civil law, this is an obvious fact. Even if usually only one of the

parties has obligations, the subjects of a donations are in a relationship of equality, there is no

subordination between them , this is wy it is no doubt about its civil character.1 Moreover what

would mean the right of ownership if the owner could not dispose of his good in the manner he

wishes and considers he should to2, the method of civil law is a dispositive one, parties can act as

they wish in the limist of the law. As a result, donation should be analysed in the light of the civil

law, in the way it is regulated in our legislation, and the legislation of other countries.

This thesis aims to examine what is legal regime of the contract of donation in the Civil Code

of Republic of Moldova, what are the problems that may appear and how it is regulated in other

countries, in a comparative manner, in order to trace the shortcomings and to see what could be

the solutions.

1 ГРАЖДАНСКОЕ ПРАВО, А.П. Сергеев, Ю.К. Толстой, Москва 20052 Bazele dreptului civil, Volumul IV. Contracte speciale, Ion Dogaru, Edmon Gabriel Olteanu, Lucian Bernd Săuleanu, C. H. Beck, București 2009

Legal nature of the donation

Regarding the legal nature of the donation there are different approaches in different legal

systems. If starting with the Roman Law, a gift (donatio) was not a mode but a ground of

accuisition of ownership, in the Justinian compilation however it is seen as a a method of

acwquiring ownership, as a general rule it was the delivery which transferred the ownership of

the property comprised in a gift3. In old greek law, liberalities were admited only in the case of

the wills, there being recognies only mortis causa donation, that was actually as a legacy, having

effects only after the deth of the donor.4 In the russian doctrine from the XiX- beginning of XX

century it was also considere a way of ownership acquisition, thus an unilateral act, and not a

contract, as an argument being given that only a party had obligations, today there is a unique

position in Russia, in doctrine and Civil Code too, donation being a contract, an agreement

between the parties, because the donee has also to agree with the recieving of the gift.5

Even nowadays in such countries asSpain, donation is considered to be a method of acquiring

ownership, being a right in rem. In the fercnh legal system, it is treated as a quasipart of the

inheritance Law, not as a contractual obligation, the consen of the donee being neglected.In Italy,

the situation is similar, but it is seen more as an institution of family and inheritance law, by the

systematic interpretation we can see that accordin to the Italian Civil Code it is a sui generis

institution, being placed at the end of the las Part of the second Volume of the Code. Usually,

donation is treated in the Civil Codes of the coutnries, however there are some systems, Like

Swedish one, that have special enactments that regulate exclusively the regime of donation.6

Regarding the Common Law system, these subject is treated totally different from the

continental one, being considered a surprising thing to clasiffy donations as contracts,, because

in coomon law a fundamental element of the contracts is essentia negoti (negotiations of the

parties), element which is absent in the case of donation.

If speaking about the nature of Donation in the Republic of Moldova, there is no doubt that it

is contract, this being expressly stated, this we can deduct also from the position of the Donation

in the Civil Code, a similar way of treating this subject, can be found in the Civil Code of

Germany.

3 Roman Law, Second Edition, Andrew Borkowski, Oxford Unviersity Press, 20024 Ibid. 25 Гражданское право.3 том. Под ред. Суханова Е.А.6 Commentary, Rome Convention, Rome I Regulation, Juris Publishing, 2010

Definition of Donation Contract

In article 827 of the Civil Code of Republic of Moldova we can find the definition of the

contract, thus it is considered when a party (donor) obliges himself to enlarge from his

patrimony, with gratuituous title, the patrimony of the other party (donee) a donation contract.7

Russian Civil Code defines it as a contract in which one party (donor) shall transfer or

undertake to transfer free of charge to the other part (donee) a thing into ownership or property

right (claim) to himself or to a third person and release or undertake to release this party from

the property obligation to himself or to the third party.8

Romanian Civil Code states that: “ Donation is an act of liberality through which the donor

gives irevocable a good to the one who recieves it, the donee”9

In a similar way as in the case of Moldovan legislation it is provided a definition of donation

cotnract in the Civil Code of Germany: “A disposition by means of which someone enriches

another person from his own assets is a donation if both parties are in agreement that the

disposition occurs gratuitously.”10

From the notions above we can conclude that in different laws it is defined differently, in one

of them being mentioned some of the characters and elements of the cotnracts and in other, not,

however, they all have in common some characteristics of the contract. Below will be analysed

the charactersticis of the cotnract of donation, some of which can be deducted and from the

notions above.

Legal Characters and Pecularities of the Donation Contract

Consensual character- Although the concept of donation contract stipulated by the Code

indicates the consensual character, it can be both real, as well as consensual. The contract of

donation is consensual whenever contains a promise to donate in the future (Art.830). In all other

cases, the contract of donation has a real character, or is concluded in the time of transmission

(Art. 828)11, though our doctrine states that the single transmission of the good being not enough

for considering it a donation, there shall also be present the agreement, thing proven by article

828 (2) of the Civil Code, that states when a good is transmitted without the consent o the other

party, there can be established a reasonable term, during which the person that received the good

7 Civil Code of Republic of Moldova, Nr. 1107 , 06.06.20028 Art. 572, Part Two No. 14-FZ of January 26, 1996, Civil Code of Russian Federation.9 Art. 800, Romanian Civil Code, Law 287/2009 regardin Civil Code, 201110 Section 516, Civil Code of German Federal Republic11 Commentary, Civil Code of Republic of Moldova

has the right to accept or refuse it.12 Such a regulation can be also found in the Russian and

German legislation.

Gratuituous character- Enreaching the patrimony of the donee, the donor does not seek

to obtain economic benefits. If as a the result of a contract of donation the donorbenefits from a

counterperformance, the donation shall be deemed simulated, respectively, null and void.

Unilateral contract- this pecularity, comes hand in hand, with the previous one, because

it is gratuituous, only one party has obligations, this making him an unilateral contract. Still it is

considered that in the cases of a conditioned donation this contract will have a sinalagmatic

character, because rights and obligations off the parties will be correlative.

Translating of ownership and irrevocable character- As a result of the donation, the

rights of the donor are transferred from his property to the property of the donee. Except the

cases expressly mentioned by the law, the donation contract can be canceled only based on the

agreement of the parties.13 This character in some legislation, as it is in the Romanian one, it is

expressly provided. The gratuitous character of the contract does not preclude the possibility for

some conditions to be present, this will be case of article 834, that refers to the conditioned

donation. Thus parties can agree that the donation take place when thegrantee will have to

execute some tasks. This tasks can also be of public utility. In this case, the gratuitous character

will persist in this case too, because donation will be considered the value of the donated good

that excedes the value of the task. The execution of the task, beside the donor can be asked by

any other person in whose favour the task was stipulated.

In the case of the donation promise there persists the solemn character, the condition of

authentification being an ad validitatem one.

Elements of the Donation Contract

Parties of the donation contract are the donor and the donee, thing which can be deducted

from the definition provided by the Civil Code too. As donors should be the subjects that are the

owners of the donated goods and have the necessary exercising capacity we should be careful

regarding the acts of donation that can be done by minors, applying the general normal from the

regulation of capacity of natural persons.

The Civil Code of Republic of Moldova provides what ar the subjects that can not act in the

quality of subjects of the cotnract of donation. Thus, it is not permitted the donation, with the

12 Drept Civil. Contracte și Succesiuni, Curs Universitar, Ediția a II-a;Gheorghe Chibac, Sorin Bruma, Oxana Robu, Natalia Chibac; Chișinău, 201413 Ibid 11

exceptions of insignificant ones, in the name of incapable persons. Another restriction is related

to owners, managers and workers of medical, educational, social assistance and other similar

institutions from the person that is placed in these institutions, or from the behalf of the spouse,

or other relatives of fourth grade of these persons. This rule, however it is not applicable between

relatives till fourth grade. Also, donation is prohibited between legal entities with coomercial

aim. The last case is related also to legal entities with commercial aim, when the object of

donation are securities (valori mobiliare).

Object of the contract, because it is an unilateral one, consists of the obligation to transfer the

donated good and the right of ownership.14

The material object or the derivated one is represented by the donated goods, that can be both

movable or immovable. These goods shall be present in the civil circuit, be possible, licit and

moral, to exist or will exist.15 A new regulation, that can be found in article 831, suggests us that

as object of the contract of donation could also be some periodical payments, that might be done

both in money and in kind. A similar provision can be found in the German Civil Code. A

special condition of the goods that represent the object of the donation contract is that they have

to be determinated or determinable. Thus, the Civil Code expressly stipulates that if the donor

obliges himself to transfer in the future his patrimony or a part of it, the contract will be void if

there ar enot specified exactly the goods that are deemed to be transmitted. The donation

Contract that stipulates the obligation of the grantee to pay debts or to execute tasks that do not

exist at the moment of the concluding of the contract is void, if the nature and the extent of the

debts and tasks are not mentioned in the cotnract. From this provisions, we can see, that in order

for a donation contract to be valid, it is necessary to be possible to determine exactly what is the

object of the contract. When speaking about the object, it is important to mention that the form of

the contract will depend on it too, this is why it is important to establish its regime.

The immediate cause of the donation contract (causa proxima), being a unilateral one,

consists of the intention of the donor to gratify, called animus donandi, which consists of the

enlargement of the patrimony of the donee from his own patrimony with a gratuituous title.

The mediate cause (causa remota) represetns the reason for which the donor transfers with a

gratuituous character a right to the donee. This reason in his turn, must be licit and moral,

otherwise donation will be void.16 In this sense, the gratuitousness of the gift does not mean that

it is causeless. However, in all these cases, the motive is beyond the scope of the donation

contract and does not affect its validity. If the motive is included in the content of the contract,

14 Drept Civil. Contracte Speciale, Partea I. Dr. Dorin Cimil, Eugeniu E. Bejenaru, Grafema Libris, 201415 Ibid. 216 Ibid. 14

for example: giving or promising to give a formal commission due to any action by the other

party, it usually leads to the recognition of the nullity of the donation contract.17

The Form of the Donation Contract

As it was previously mentioed, our national legislation, does not requiere aspecific form of

the donation contract, it states in art. 829 of the Civil Code, that the form of the donation contract

will be the same that is requiered for the selling of the good that is donated.This character comes

from the consensual character of the contract. Though it seems that the consensual character is

available to all forms of donation, we can see that it only relates to the one that is concluded at

the moment of transmission of the good, as a general rule. Still, there is another form of

donation, which in our Civil Code is called the promise of donation. In the case of promise of

donation the authenticated form is requiered to produce effects. However our Code states that if

the donation takes place, the failure to conclude it in an authenticated form won’t affect the

validity, with the exception when the object of the contract are goods for which alienation is

needed the authenthic form. This provisions from our Code are of German Inspiration, in

Romanian one, it is treated differently, the general rule being the authenticated form. Russian

legislation also does not requiere the solemn form. In comparison to the donation, the promise of

donation has a specific feature, thus, even if the donor agreed to transmit his good, he can refuse

to execute the contract, if for him becomes impossible, taking into account his obligations,

without affecting his own maintenance or the execution of legal obligation of maintenance of

others, the donee on this case can not ask for the payment of the prejudices. The non execution of

the contract by the donor of the Contract only possible until the transmission of the property.

After sending goods donation contract can be resolved in accordance with Art.83, related to the

rescission.18

The authenticated form asked in other legislation and in ours in case of the donation promise,

it is easily to understand as long as the donation contract has a gratuitous character, it is needed

to respect some special requierements, to ensure that the will of the donor was expressed freely.

However, in my opinion to impose such a form for every donation contract would make too

difficult to donate something, and this would somehow interfere with the right of the owner to

freely dispose of his good, even if this restriction would be also in his favor.

17 Ibid. 118 Ibid. 11

Specific efects and the legal regime of the donation contract

Thus, donation it is considered every contract concluded inter vivos, through which the donor

obliges himself to enrich the patrimony from his own one with a gratuitous title, in order to

diferentiate this contract from the will, or Civil Code expressly states that the Conrtact that

provides the transmission of the good after the death of the donee is void. In this case we are at

the presense of an absolute nullity. By this stipulation our legislation does not recognize causa

mortem donations, though it is regulated by other legal systems. Another case of absolute nullity,

mentioned already above is that of the donation contract thorugh which is transmitted in the

future the patrimony or a part of it without specifying what goods will be transmitted. In the case

of donation cotnract there are also relative nullity, thus the Donation contract concluded during

a lethal deseas of the donor, that is followed by a recovery, can be declared void at the request of

the donor. In this case the only person that can invoke the nullity is the donor, the subjects

indicated in the general provisions regarding the relative nullity in article 218 of the Civil Code

being not applicable in this case.19

. According to the russian doctrine by goods that can be donated we cand understand things,

property rights (claims) in relation to the donor or third parties, as well as exemption from

property liability to the donor or a third party. It is considered the object of donation are not any,

but only some of the legal action: the forgiveness of a debt (if the donor exempts the donee from

the obligation to himself), transfer of debt (if the donor carries a commitment of the donee to a

third party), the assumption of performance of an obligation (if the donor fulfills the obligation

of the donee and on its behalf).20 This point of view can be found in our doctrine too,it is

speciefied that even if the contract of donation has a translative of ownership character, it is not

necessary that this rule be applied in all situations, it can be done not only through translating a

property buth thorugh athoer actions too if animus donandi is present and they may lead to the

growing of the patrimony of the donee from the donor’s one. We can name:

Remittance of the debt- an obligational relationship through which the creditor releases

voluntary the debtor from a part or from the whole his debt, without asking anything in return.

This is also a way of terminating an obligation

Stipulation for other person- it is the resul of the contract concluded between the stipulate

and the promisor, where there is the itnention of the stipulate to gratify a third party, in return of

the performance of the stipulate. The third party is the beneficiar of the gratification

19 Ibid. 1420 Ibid. 5

Waiving of a right with the intention to offer an advantage to another person, that has the

right to gain that right based on the law

For the right qualificaiton of the cotnract it is important to establish if there is present the

intention of gratifying, and the intention of the donee to accept the good. Thus waiving of a right

without givind the possibility of other person to acquire it, does not constitute a donation.

Further we are going to analyse the specific of some casese in which there might appear

problems in the qualification of the cotnract.

Thus, between husbands there is possible to be concluded a contract of donation but only

regarding the goods that are individual property of oen of them, they can not done to each other

the goods that are already their common property.

If speaking about article 832 from the Cviil Code that refers to insignificaant gifts, these are

liberalities that people make with some ocasions, the value of these goods is otuside legal

norms, these acts are considered by the doctrine being non-legal acts. As an example of

insignificant gifts we can bring flower buouqets, photo albums, books, etc.

Habitual gifts, done with some ocasions, even if their value can be considered significant, like

offering an engagement ring, we still can not qualify it as a donation cotnract, because its

spiritaul value exceeds the material one. They are neither the object of the rules of revocation nor

of other rule applied to the donation contract.21 Romanian doctrine expresses a similar opinion,

thus it is considered that the prises, gifts and other rewards offered with publicity aims from the

merchants to their clients does not represent donations because they are not done from the

intention of gratifying, merchants can not allow themselves to be genrous in their professional

activity.22

Another aspect that has to be clarifiesd, is that even if our legislation uses the notion of

donation in the case of the transplant of organs, tissues and cells, it can not be assimilated as the

cotnract of donation as it is specified in the Civil Code. If we look at the provisions that regulate

this domain, they do not comply with the conditions that are mentioned for this cotnract, for

example it can be done even without the consent of the recipient, if he is not able to give it. So

we can see, that these legal relationship has a different nature and appears in other situations,

thus it can not be considered a genuine donation contract.23

21 Ibid. 1422 Fr. Deak, Tratat de Drept Civil. Contracte Speciale, București, 199623 Ibid. 14

From the fact that the donation cotnract is a liberality and is done with a gratuitous character

article 837 of the Civil Code provides that if the donor is in delay with the transmission of the

good the donee can not ask for a legal interest. This provision is only applicable to promises to

donate in the future (including donation in the form of periodic payments), when the contract is a

sum of money. According to general rules, the debtor isof a pecuniary obligation that is in delay,

according to Art. 619has to pay an interest. Based on the specifics of the contract of donation,

because the donor that increases the patrimony of the donee without for free, the mentioned rule

precludes the donee to demand interest for delay in execution of duty by the donor. At the same

time, the rule does not preclude the donee commented to require the repairmen for the real

prejudice that was caused, according to common rules concerning liability for the nonexecution

of the obligations because of delay.

Termination of donation contract

According to the Civil Code of Republic of Moldova there are 2 cases of termiantion of

contractual relationship in the case of donations, these are the revocation and the rescission of

the contract. Further we are going to analyse these cases.

Article 835 of the Civil Code expressly and exhaustive lists what are the legal grounds for the

revocation of the donation. Thus line (1) of this article states that the contract can be revoced if

the donee made an attempt on the life of the donor or to one of his close relatives, if he is guilty

of an illicit action towards the donor or one of his close relatives, situations which are manifested

with a grevious ingratitude or the donee refuses without grounded reasons to offer the owed

maintenance. From an analysis done of the mentioned line there are 3 situations. Being a

unilateral contract (excluding conditioned donations) , contract of donation does not generate

obligations for the donee, however there is present a duty, called the duty of " gratitude" .

Increasing the donee heritage for free , the donor is entitled to expect from the donee if not

gratitude, at least loyalty manifested by refraining from committing bad deeds to the donor.

Revocation of the donation because of an attempt on the life of the donor or his close relatives

can occur when there was an attempt to suppress physical the donor or someone from his close

relatives. Close relatives of the donor are considered family members and relatives up to the

fourth degree inclusive. The fact that the donee has committed an attempt on the life of the

nominees is a serious deviation from the leberality to gratify and it is natural that the donee in

this case is endowed with the right to revoke the donation. It does not matterweather there was

onlyan attempted murder or actually a consumed one and it is not requiered that a criminal

conviction was establishedfor the offense committed by the doneeThere shall be determined the

donor 's intention to kill. In situations where the attempt on life was committed recklessly or in a

state of irresponsibility, there is no grounds for revocation .24 Regarding the illict actions, there is

no explanation that would explain this term, in this case the corut will have to appreciate each

case in particular.

The right to apply these norms is an individual one and can be used only by the donor and his

close relatives. Paragraph 2 of this article concerns the legal consequences of revoking the

donation for ingratitude, leaving the donor to decide weather to ask a restitution of the property

donated or its equivalent in money . Revocation for ingratitude is recognized as a civil sanction,

not as a rescission of the contract, like in the case revocation of conditional donation ( Art.834 ),

when if the donee does not execute his task and the donor can revoke the donation. In the

relationships between the contracting parties donation revocation for ingratitude produces a

retroactive effect. The donation is deemed not to have existed , and for this reason the donee is

obliged to return the property donated. Since revocation donation for ingratitude is a personal

penalty against the donee, it shall not affect the rights of third parties. If the property does not

exist in nature or was alienated, the donee will be required to pay the value of the goods based on

the rules governing unjust enrichment.

Revocation of donation can only be done within a year from the moment the entitled to

revoke found the reason for revocation. Action to revoke the donation can not be filed against the

heirs donee or by the donor's heirs against the donee , except when the donor has died until the

deadline stated above passed.

Second case of termination was the rescission of the contract which is regulated in the article

836 of the Civil Code, thus it provides that: “If the donor,after the execution of the donation, is

no longer able to ensure his proper maintenance and to fulfill his legal obligations of

maintenance towards third parties, he may ask the donee to return the goods that were donated

that he still posses. Refund request is inadmissible when the donor has caused intentionally or by

serious negligence his state of need.” From this legal norm two aspects can be deducted that can

influence the restitution of the donated good. First one refers to the state of need that appeared

after the execution of the donation contract and the second one is referred to the possibility of

returning the donated goods that at that moment are in the posession of the donee. If the donated

goods do not longer exist or have already been alienated the rescission of the cotnract can not

take place. According to our doctrine, because Civil Code does not expressly state the right to

ask for a compensation when the goods can not be restituted, the donor can not ask for anything

in this case.25 When the goods is in the possession of the donee but it is encumbered with rights

of third persons, the donor will have to accept the good with all the encumbrances, without the 24 Ibid. 625 Ibid. 12

possibility of asking for compensations In comparrison with article 830 we can see that Civil

Code specifies expressly that this state of need has to be not provoked by the donor, stipulation

that is much stricter that in the case of donation promise.

Conclusion

By analysing the features, characteristics and specifics of the donation contract we can

conclude that this isa cotnract known for humanity for a very long time, however its nature has

not yet been elucidated. It is addressed by different legal systems in different ways and there are

different provisions, howver by the fact that it is regulated by every system and has always been

we can, for sure, conclude and emphasize its importance. Humans from the moment they gained

property they wanted to dispose of it, including in a gratuitous way and offering gifts to other

ones.

Of course, many of the specific provisions that regulate the regime of the donation contract

come from the fact that it is a gratuitous one, this is why it does not resemblance with other

inerous contracts, that represent the vast majority of categories of contracts in the Civil system of

contracts.

In conclusion, after stating what are the provisions in our Civil Code, we can actually say that

there are no legal gaps, the legal regime being clear, though there might appear different ways of

itnerpretation. Also by comparing its legal regime with the ones from other systems, we can say

that in comparrison with some of them donation contract is regulated totally different, however,

as long as Civil Law of republic of Mioldova is a continental one and is of German inspiration,

by comparing with the provisions of the German Civil Code, we can see that in the moldovan

legislation the regime of the donation contract is treated similarly with the german approach.

Bibliography

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2. Romanian Civil Code, Law 287/2009 regardin Civil Code, 2011

3. Part Two No. 14-FZ of January 26, 1996, Civil Code of Russian Federation

4. Civil Code of German Federal Republic

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