The conceptual definition of the Gift Agreement in our law is given by the Law on Obligations in Article 555.
With the gift contract, the gift giver is obliged to transfer or hand over to the gift receiver ownership of a certain object, or to concede a right, or to write off a debt, or to take on a debt without compensation.
Whether the gift agreement is a Domestic transfer of ownership of an item or a transfer of right, essential to this agreement is the result of an intention to give or animus donandi in any case, on the part of the gift giver, which takes care of the gift giver property and increases on the property of the gift receiver.
A gift agreement is a consensual agreement – it is concluded at the moment when the gift giver and the gift receiver reach an agreement on the gift.
Characteristic of the contract is that it is a unilaterally binding contract – the gift giver has an obligation to do or give something, for which there is no objection on the part of the gift receiver, however, here we will emphasize once again that this is not a one sided legal act but that it is an obligation agreement that occurs with the consent of the will of the contracting parties – on the one hand it is the will of the gift giver to reduce his property at the expense of increasing the property of the gift receiver and on the other hand it is the consent of the gift receiver to receive the gift.
The gift agreement has two elements – the item that is given as a gift and the will for that item to be given as a gift. The item being donated must be in legal circulation just as the item being sold must be in legal circulation.
A certain property or the whole property can also appear as an object of gift. The donation of future property is limited in two directions with a deferred condition if the gift giver acquires the future property at all and with a restriction not to be in a position to be unable to support himself or to be unable to support the persons he is legally obliged to support. The gift giver can not give someone else’s thing because no one can transfer a right that he does not own.
The transferred right should not be an obviously disputable or natural obligation. Also, claims that can be subject to legal turnover cannot be transferred, and not to be related to a particular person (intuit personae). Intellectual property rights can also be transferred with a gift.
The will for the item to be gifted (animus donandi) is what distinguishes the gift contract from other contracts where the item is given without compensation (interest-free loan agreement, service agreement, etc.). The existence of the will the thing to hand over as a gift and to receive as a gift, although by its nature it is a subjective category, in this case it also appears as the basis of the contract (as a goal or as it is also called a cause). If there is no such awareness on the part of the gift giver and a willingness to donate or it is made under forced fraud or delusion the gift contract will be void.
The existence of an agreement on the essential elements of the gift agreement between the gift giver and the gift receiver of the gift is the third basic assumption and consists in the existence of a prior agreement of the contracting parties which item or property right will have in the contract which item or property right will be the subject of the contract and the existence of their wills so that the object of donation thus determined is ceded free of charge to the gift receiver (animus donandi), ie the object of the donation to be received and kept in the ownership of the gift receiver (animus dominii ).
The gift agreement also occurs in the following types:
- Combined gift contract which, in addition to the essential elements of the gift contract, also contains elements of another contract, usually a contract of sale. For example, person A sells his new bicycle to person B, who previously bought it at a price of EUR 500 in MKD equivalent for a price of EUR 50 in MKD equivalent.
In the case is not about excessive damage to the seller, but a combined contract of sale with a gift agreement.
- Awarded contract for a gift that, despite the will to be given the item, it is necessary to achieve certain results (best result in studies, competition, etc.).
- The gift contract with a burden or order, in addition to the essential elements of the contract given the nature of the contract contains another element according to the will of the parties. Thus, the gift giver may reserve for himself or for someone else a right or may instruct the gift receiver to do something or allow something for another (eg. to transport a person from one location to another every day with the donated vehicle ).
In case the gift receiver does not fulfill the burden or the order within an additional reasonable time, the gift giver may terminate the contract and ask the gift receiver to return what he received. The heirs of the gift giver may terminate the gift contract due to non-performance of the burden or the order, when it is provided by the gift contract. After the death of the gift giver, the execution of the burden or the order can be requested by his heirs or another person determined by the contract.
The gift agreement, in contrast to other agreements, may terminate in a specific and different way from those in other agreements. In this case it is about the revocation of the gift, which happens when the contract is concluded, and that can be done by the gift giver. It is characteristic of the gift contract that it is possible under certain conditions for the gift contract to be revoked.
Revocation cases can be divided into three groups with predetermined conditions: contractual, legal and at the request of third parties.