The subjective side of the donation contract
The subjective side of the donation contract
The subjective side of the donation contract
The nature of the donation is expressed in the desire of the donor to benefit free donations. It is this subjective attitude of the person to the act of giving is typical donation and is the main distinguishing criterion between him and the fulfillment of a moral duty within the meaning of Art. 55, para. 2 LOC. There is no intention endowment when the donor is aware of the need to provide appropriate good and thinks that this act to meet the requirements of morality. In this case the giving act is required and is driven by the power of a moral imperative, not a gratuitous act Generously. It is because of this difference in the subjective element, it is possible to reclaim given in a subsequent moment.
The other element is a subjective reason for which something is given for free to the donee. Depending on it can be distinguished several types of donations. In usual, except endowment plan, there is the additional awareness for a particular need, dictated by the generally established order, which makes it impossible to seek annulment of Art. 227, para. 2 LOC. Like usual, Credit donation may not be revoked because of ingratitude. This is due back on the ground - predominant desire of the donor to pay off and therefore in donations does not form the typical sense of appreciation and gratitude to the donor. Another kind donations, with the specific characteristic in relation to the motive for making them are so mutual donations. And with them the subjective side is decisive - both parties accept given them, for each one of the grounds for making the donation is the existence of parallel endowment in his favor. Depending on whether the receipt of the expected economic benefit is the main motive or additional motivational factor, there will be an agreement for exchange or donation.
Important is the subjective donation at a weight in order to answer the question whether it is possible for non-gravity donor wants to termination of the contract, ie okay donation to burden bilateral and onerous contract. One of the main criteria are the ratio of the value of donations and severity, and the subjective experiences of the parties. In all cases where impaired gratuitousness of the donation contract, the relationship should not be subject to the provisions of Art. 225-227 CPA and given will be subject to cancellation due to ingratitude.
Whether the rules for ingratitude of art. 227 CPA and are used in some special types of donations, as ancillary and indirect, again depends on the subjective experiences of the parties to the main contract, but important role in answering this question plays and security of public relations. When accessory donations if the donor them out, motivated solely by the desire to conclude a contract for pecuniary interest, the grant clause does not matter donation contract and against her rules do not apply to this institute. In indirect donation endowment plan is done indirectly, such as when a creditor forgives the debt of his debtor. In all such cases the donor is aware of the unpaid nature of his act and is motivated precisely by the desire to show generosity in favor of donations. But in certain situations the subjective experiences of countries succumb to the requirement of certainty and predictability of public relations. That is why, for example, when the holder of a limited real right renounces it in favor of the owner of the property, cancellation of this indirect donation of art. 227 CPA could not be implemented, since abandoning a right is exclusive, irrevocable character not to jeopardize the security of civil turnover.
In donation ownership is transferred gratuitously transferor effect occurs immediately with the conclusion. It does not create any obligations for gifted maintenance or support for the donor than a moral obligation to be grateful for granted. It was transformed into a legal obligation to give dependent upon the occurrence of certain circumstances in the law, namely the onset of the donor in need and sent by him to gifted request last to give him support. Culpable failure to do so is an expression of ingratitude that law sanctioned with revocation of Art. 227 Law on Obligations and Contracts Act (ADA).
The first prerequisite for upholding the action for annulment of the donation is the donor needs maintenance. The courts adhere permanently to the understanding that the correct interpretation and application of the provisions of art. 227, para. 1 b. "In" LOC required to comply specific needs of each donor in a particular donation, which cancellation is requested.
The case law is very clear that the need for maintenance must be permanent.
Attorney at law Iuila Danova
#3, Dobrotica Str., Varna, Bulgaria
Mob: +359 895 64 59 40
WWW: advokatvarna.com
Email: iulia.danova@abv.bg