Gift (law)

The donation is a donation, enriches another by someone out of its assets and both parties are in agreement that the grant is done free of charge ( § 516 para 1 BGB).

• 2.1 impoverishment of the donor
• 2.2 insolvency of the donor
• 2.3 Bankruptcy or depletion of the recipient
• 2.4 Coarse ingratitude
• 2.5 Divorce

Donation agreement

If a service gift as promised, is a two-sided transaction before ( a contract ). But this is only mandatory one-sided, because only the donor must provide a service. Although not all of the donation agreement, but the donation promise, so the declaration of intent of the donor, requires notarial certification ( form requirement, see § 518 BGB). If this form is not adhered to, the form of deficiency can be cured by the later effect of the promised performance. That is, a certification of a notary is about then no longer necessary if the gift has already been suitable. A closed before handing over donation contract is thus retrospectively effective.

The donation can also be connected to a circulation.

Hand donation

The giver has the opportunity to make a donation as so-called hand offering donation. Such is when the subject of the gift is gives the recipient immediately without the giver promises to be the recipient beforehand. This is usually gifts as birthday or Christmas gifts or other gifts relate to that one over there immediately, without giving prior recorded in a formal contract.

The parties then at the handover agree that no consideration is expected that the transfer therefore is free of charge. Such a hand donation requires no special form to be valid.

Reverse a donation

As a gift without consideration of the recipient occurs, but the assets of the donor decreases ( possibly his credit ), it basically has the potential to jeopardize interests of third parties in particular. Therefore, it admits the right to only a very low vulnerability and provides for a variety of cases that the gift can be undone.

Depletion of the donor

A particular problem in connection with the donation represents the case that the donor would be depleted after the completion of the donation and rely for their own maintenance on the gave away assets. This case in the legal practice of considerable importance, namely the frequent cases that the donor is in need of care by age, accident or illness, his own income and assets to cover the cost of care is insufficient and the general public must pay by social assistance for this purpose. § 528 para 1 BGB provides in that regard that the donor may claim from the recipient the publication of the gift in accordance with the provisions on the return of unjust enrichment, as far as the donor is unable after the completion of the donation to support himself worthy upkeep.

A typical example of poverty is the poverty in old age. Assuming a 63 -year-old man presented € 25,000 to a charitable institution. Four years later he retires. However, due to the small amount of the pension and the absence of private property, he does not have sufficient funds to sustain a livelihood more. With the gift he has his neediness according to § 528 BGB self-inflicted.

For it is true: If the donor waives the donation would be no need. The following shows that he does not receive any social assistance or unemployment benefit II and must recover the donation.

In general, donations of the last decade has to be recovered, if the donor wants to claim social assistance. This applies to real estate as well as for savings accounts and other assets (eg antiques). In about 360,000 cases annually calls in these cases, the respective supervising social welfare office, the donations of the last ten years ( consistently ) by the relatives back. Some of the cases based on these trial runs linger for years ( process time ).

Even if the man would have been previously in need of care and he to whom they had given away free of charge nurses the assets, the donation could be reclaimed. This is excluded only in the rare case of moral obligation.

However, the recipient can the issue by raising the plea of ​​impoverishment may refuse ( § 818 BGB 3 ).

Insolvency of the donor

Occurs when Schenker personal bankruptcy, and was made the donation in the four years before that, the creditor can contest it in accordance with the general provisions of § 134 Insolvency Act. The Schenker burden of proving that the donation outside of this period was. In addition, a challenge up to ten years earlier donation of creditors under § 133 Insolvency Act, if Schenker and donee had the intent to disadvantage creditors. Was in the gift a recovery law agreed, this right flows into the bankruptcy estate and the creditors may, regardless of the general rules to access it.

Bankruptcy or impoverishment of the recipient

Inversely, it behaves according to the recipient: Threatens him the bankruptcy, so the gift flows regularly in the bankruptcy estate; impoverished it, it must use the gift to fund his livelihood. Only if the donor has reserved the recovery in the donation contract, he can challenge it again and so deprive it of recovery by the creditors or the reach of the welfare state.

Gross ingratitude

For serious misconduct of the recipient against the donor or Next of Kin ( ingratitude ) the donation within one year ( § 532 BGB) from knowledge of the misconduct may be revoked ( § 530 para 1 BGB). Show the relationship between Schenker and declare plays no special role in the evaluation of the misconduct. The gross ingratitude must be taken from the misconduct, it must be a reprehensible attitude reveal that indicates ingratitude. To assess the seriousness of the misconduct and the related circumstances have to be assessed. Examples: threats to life, physical abuse, baseless criminal charges, despite incriminating statement evidentiary privilege, severe insult.

Divorce

On 4 February 2010, the Bundesgerichtshof ( BGH) made ​​a landmark decision, thus giving its previous restrictive law on the recovery of gifts by parents- in-law to children. In the appeal decision XII ZR 189/ 06, the ex- in-laws called back 58,000 DM ( about 30,000 euros ), which they had given to her future son to finance a condominium. The bought this apartment, as sole owner. Such a grant met (such as the Supreme Court recognized now ) all the criteria of a gift. Business basis of such gift was regularly

• That marriage between a child and child -in-law continues to exist and
• That the child of the donor " in the continued enjoyment " of the donation coming.

Against this judgment a claim for repayment of his parents was usually excluded if the spouse had lived in a community of surplus ( which is the case in Germany on most married couples ).

Donation ban

Legal representatives may not give away assets of the persons represented by them, unless it is a gift, by a moral obligation is met. This relates to the parents of minors ( § 1641 BGB), legal guardians ( § 1804 BGB), legal advisor ( § 1908i, Section 1 of the German Civil Code ), the latter are also entitled to make occasional gifts ( § 1908i para 2 BGB) and with judicial approval make equipment ( dowry, dowry ) to children assisted by ( § 1908 BGB).

Donations in the heirship

Donations that have been made in the last 10 years before the death of the donor, may be counted by way of compulsory portion supplements claim by the beneficiaries ( § 2325 BGB).

Gift tax liability

Asset growth of the recipient is subject to the gift tax, as soon as the sum of gifts between those individuals exceeds the exempt amount in the last ten years. The gift tax is levied on the same terms as the estate tax, the inheritance and gift tax law. With the Annual Tax Act 2010 registered partnerships have been fully assimilated in inheritance and gift of marriage. Until then, for registered partnerships still the highest tax rate.