If a service is promised as a gift, there is a bilateral legal transaction ( contract ). However, the legal transaction is only unilaterally binding , because only the giver has to provide a service. The donation of the asset by the giver is free of charge, i.e. without consideration, and leads to a final depletion for him. The transaction takes place without consideration if there is neither a conditional nor a conditional connection with the benefit. Contributions between spouses can be paid in individual cases, if they were made within the family as compensation for services rendered. Otherwise, these are also gifts that are subject to gift tax according to the case law of the BFH. Finally, gifts that are made in return for the fulfillment of the conditions are not considered conditional donations, since the non-fulfillment of the condition does not determine the effectiveness of the donation as a legal transaction.
Not the entire donation contract, but the promise of donation , i.e. the donor's declaration of intent , requires notarial certification . The formal requirement results from (1) BGB. If this form is not adhered to, the shape deficiency may result from the subsequent effect of the promised performance healed be. That is, a certification of a notary as no longer necessary, if the gift is already over is was and gift enforcement within the meaning of § 518 paragraph 2 BGB present. A donation agreement that was concluded before the handover becomes effective retrospectively.
Types of gifts
There are different forms of donation. The so-called “remunerative donation” refers to an additional donation by the giver for services rendered by the recipient. However, these only serve as a motive for the donation, unlike donations that are made subject to conditions ( BGB). Mere rewards are to be regarded as free of charge, while additional payment in return is considered to be paid.
Mixed donations, for example the transfer of a thing for reduced remuneration, are assessed according to the so-called purpose - appraisal theory : a predominance of the free part basically leads to the legal character of a donation; in the event of equilibrium or the preponderance of the remunerated part, the legal transaction is broken down and dealt with according to the relevant rules (partial purchase, partial gift).
Ultimately, there are grants that are linked to expectations without being tied to a condition, the so-called "special-purpose gifts". These are services from the gift item that are made without legal obligation and are generally not enforceable. If the purpose, for example the continuation of a craft business, is disappointed because the recipient opposes this expectation, the condictio ob rem may exceptionally be applicable. The prerequisite is, however, that the purpose of the donation was not part of the contract beyond the agreement of the parties' ideas.
Gift of hand
The donor has the option of making a donation as a so-called hand donation ( donatio manualis ). Such is the case if the object of the gift is provided to the recipient immediately without the giver promising this to the recipient in advance. As a rule, this will affect gifts such as birthday or Christmas presents or other gifts that are given immediately without having to state this in a formal contract beforehand.
At the time of handover, the parties agree that no consideration is expected, i.e. that the handover will be free of charge. Such a gift does not need any special form to be effective.
Cancellation of a donation
The recipient's claim is that it is fulfilled (execution of the gift). In the context of the right to disrupt performance, the general liability rules also apply, which, however, have been modified for the gift right within the framework of - BGB.
However, since a gift is made without consideration by the recipient (enrichment), but in return the giver's assets are reduced (depletion) and thus possibly also his creditworthiness , there is a general risk that the interests of the giver or third parties are particularly endangered. For this reason, the right to donate is less in need of protection than is otherwise customary in non-altruistic legal relations. In the context of revocation (§ ff. BGB) and the right of objection (emergency requirement BGB) there are a number of cases for the donor that give him the right to reverse the donation.
Failure to comply with a condition
In the event that conditions are issued, the giver has the right to have the recipient carry out the conditions in accordance with Section 525 BGB. For this purpose, there is a limitation of claims if the recipient was allowed to refuse the execution of the condition within the framework of right or in the matter , the value of which falls short of the expenses required to eliminate it.BGB because there is a defect in the acquired
Impoverishment of the giver
A particular problem in connection with the donation is the case that the donor becomes impoverished after the donation has been made and is dependent on the donated assets for his own maintenance. This case is of considerable importance in legal practice, namely in the frequently occurring cases that the donor becomes in need of care due to old age, accident or illness , his own income and assets are insufficient to cover the care costs and instead the general public has to pay for this through social assistance . (1) of the German Civil Code (BGB) stipulates that the giver can demand the surrender of the gift from the recipient in accordance with the provisions on the surrender of unjustified enrichment if the giver is unable to provide adequate maintenance after the donation has been made .
A typical example of impoverishment is old-age poverty . Suppose a 63-year-old person gives away 25,000 euros to a charitable institution. He retires four years later . However, due to the low level of the pension and the lack of his own assets, he no longer has sufficient means to support himself. With the donation he is responsible for his own needs according to BGB . The following applies: If the giver had waived the donation, there would be no need. As a result, he does not receive any social assistance or unemployment benefit II and has to claim the donation back.
A limit regulation is offered by social assistance . This applies to all assets, such as real estate , savings accounts and other valuables such as antiques and the like. In around 360,000 cases a year, the social welfare office in each case demands that the relatives (consistently) return the donations made in the past ten years. Some of the court proceedings based on these cases drag on for years ( duration of the process ). Even if the person had previously been in need of care and he had given away the assets to the caregiver free of charge, the donation could have been reclaimed. Only in the rare case of moral duty is this excluded.BGB. As a general rule, donations from the last ten years must be reclaimed if the donor wishes to claim
Bankruptcy of the donor
If the donor goes into private bankruptcy and the donation was made in the four years before, the obligee can contest it according to the general provisions of InsO . The donor bears the burden of proof that the donation was outside this period. In addition, pursuant to InsO, the obligee can also contest a donation made up to ten years ago if the donor and recipient intended to disadvantage the obligee. If a right of reclaim was agreed upon with the donation, this right flows into the bankruptcy estate and the creditors can access it regardless of the general regulations.
Bankruptcy or impoverishment of the recipient
The same applies to the recipient of the gift: If he is threatened with bankruptcy, the gift regularly flows into the bankruptcy estate; if he becomes impoverished, he has to use the gift to finance his livelihood. Only if the donor has reserved the right to reclaim in the donation contract can he challenge it again and thus withdraw it from being used by the creditors or from the access of the welfare state.
In the event of serious misconduct by the recipient towards the giver or his close relatives (ingratitude), the donation can be revoked within one year ( German Civil Code ) after knowledge of the misconduct ( (1) of the BGB). The relationship between the giver and the recipient does not play a special role in assessing the misconduct. The gross ingratitude must be derived from the wrongdoing, it must reveal a reprehensible disposition that points to ingratitude. In order to assess the gravity of the misconduct, the associated circumstances must also be taken into account. Examples: threat to life, physical abuse , unfounded criminal complaint , incriminating testimony despite the right to refuse to testify , serious insult .
On February 4, 2010, the Federal Court of Justice (BGH) made a decision of principle and thus abandoned its previous restrictive case law on the reclamation of gifts from parents- in - law to children - in -law . In the process, the ex-in-laws reclaimed 58,000 DM (almost 30,000 euros), which they had given their future son-in-law to finance a condominium . He bought this apartment as the sole owner . According to the BGH, such donations fulfilled all the criteria for a gift. The business basis of such a gift is regularly
- that the marriage between child and child-in-law will continue and
- that the child of the donor can "enjoy" the donation.
Before this ruling, the in-laws were generally not entitled to a claim for repayment if the spouses had lived in a community of gains (which applies to most married couples in Germany).
Legal representatives are not allowed to give away the assets of those they represent unless it is a donation that complies with a moral duty. This concerns the parents of minors ( BGB ), guardians ( BGB ) and legal guardians ( Paragraph 1 BGB ), whereby the latter are also entitled to give occasional gifts ( Paragraph 2 BGB ) and with judicial approval Provide equipment ( dowry , dowry ) to children of those in care ( BGB ).
Donations in the compulsory portion right
Gift tax liability
The increase in assets of the recipient is subject to gift tax as soon as the sum of the gifts between these persons in the last ten years exceeds the tax exemption . The gift tax is levied according to the same provisions as the inheritance tax, the . With the Annual Tax Act 2010, registered civil partnerships were unreservedly equated with inheritance and gifts of marriage. Until then, the highest tax rate still applied to registered civil partnerships.
- Thomas Fritz: Targeted succession through wills and gifts . Schäffer-Poeschel Verlag, Stuttgart 2017, ISBN 978-3-7910-3968-8 .
- BT-Drs. 16/8954 (PDF file; 642 kB)
- Kioskea: What is a hand gift ?
- BGH, judgment of February 4, 2010, Az .: XII ZR 189/06
- Federal Law Gazette 2010 Part I No. 62, issued in Bonn on December 13, 2010