In a legal sense, the term “gift” refers to a specific voluntary transfer of the property of others. The transfer must be made without consideration (i.e. without expectation of consideration). A person or party who makes a donation is called a “donor,” while the person who receives the gift is called the “recipient.” For example, let`s say a man gives a ring to a woman and tells her it`s for her next birthday and he should stick to it until then. The man did not give a gift and could legally retrieve the ring at any time before the woman`s birthday. On the other hand, suppose a man gives a certificate to a woman and tells her that it is in her best interest if the act remains in his record. The man made a gift and would not be able to claim it legally. A gift of property is the voluntary transfer of property from one person (the donor or donor) to another person (the donee or beneficiary) without full consideration. For a donation to be legally effective, three conditions must be met: Not all transfers of property are considered gifts. The term “gift” has a legal meaning and only transfers that meet all the evidence are classified as gifts. Although laws may vary from region to region, evidence of a donation is generally as follows: In addition, the intention to make a gift must exist. For example, a landlord who rents a house to a tenant does not intend to leave the premises with the tenant, even if the tenant is taken possession for an extended period of time. Similarly, a gift to the wrong person will not be effective.
If a person accidentally gives gold jewelry to a scammer believed to be a niece, the gift is invalid because there was no intention to benefit anyone other than the niece. The intention must be present at the time of donation. For example, if a person promises to give a house to an artist “one day”, the promise is unenforceable because at the time of the promise, there is no intention to make an actual donation. The mere expectation that one day something will be given is not legally sufficient to give a gift. In situations where the donee is not legally capable of accepting delivery, this delivery may be made to a person who will keep it for him. This may be the case, for example, with an infant. According to the common law, a gift/gift will be much closer to the concept of gift in civil law than to a simple contract of gift. In summary, despite some elements common to both systems, the use of the term gift/gift covers two different realities in civil law and common law, although there are similarities in some respects. With respect to gifts between living persons, the question of liberal intent and acceptance on the part of the recipient arises again, which are common to both civil and common law. In addition, the property must be sold in favour of the donee. On the other hand, the civil law requires an irrevocable transfer of ownership to the donee, while the common law requires that the donee be transferred to possession of the donated property.
In one case, the right is transferred, while in the other case, the ownership itself is transferred. This difference is the result of a difference in the concept of ownership between the two systems. This distinction is attenuated, if not eliminated, if the gift is made by a formal act or a sealed act. Donation, in law, a gift or a free thing. The term is usually limited to the free transfer of real estate or personal property between living persons (living persons). A valid donation requires: (1) a qualified donor; (2) an eligible donee; (3) an existing identifiable element or interest; (4) the intention to make a gift; (5) Delivery; that is, a transfer of possession to the donee or donee and a renunciation by the donor of ownership, control and right of revocation by the donor (except in gifts of property upon death; that is, gifts made by someone who believes they are close to death, and which become final only when the donor dies); and (6) acceptance by the recipient. Under French law, formal acceptance is required, but Anglo-American law recognizes tacit acceptance. A donor approaching death can make a donation by declaring their intention in writing. This procedure may be used if, for example, the donee is located in another country and personal delivery is therefore impracticable. The delivery requirement is often relaxed when it comes to a causa mortis gift, as a donor is less likely to be able to make an actual delivery as they approach their death. A symbolic transfer is often sufficient to show that a donation has been made, provided that at least one effort is made to make a delivery. The overt law helps a court decide whether a delivery has been made.
The donor must have the current intention to give the property to the donee. A promise to donate in the future is unenforceable and devoid of legal meaning, even if the promise is accompanied by a current transfer of the physical asset in question. The difference between a gift causa mortis and a testamentary gift by will is that a will transfers ownership after the death of the donor, but a gift causa mortis takes effect immediately. In most states, the recipient becomes the rightful owner of the gift once it is given, only on the condition that the gift must be returned if the donor does not actually die. Intention to make a gift The intention to make a gift is essentially determined by the words of the donor, but the courts also consider the surrounding circumstances, the relationship between the parties, the amount of the gift in relation to the total amount of the donor`s assets, and the donor`s conduct with respect to the property after the alleged gift. A majority of states are convenient in terms of delivery demand. If the donor and donee live in the same house, it is generally not necessary for the gift to be removed from the house to allow for delivery. If the donee owns the property at the time the donor also transfers ownership to the person, it is not necessary to hand over the property in either direction to make a legal delivery. Evidence that the donor has waived any claim to the gift and has acknowledged the donee`s right to exercise control over the gift is generally sufficient to indicate that a gift has been made.
A final difference concerns the scope of the concept of gift/gift in the two private law systems. In civil law, the terms seem to refer only to the nominative contract in the Civil Code of Québec. It is clear that the common law will consider a gift, regardless of the form of the instrument. Thus, the common law will recognize the validity of a gift, whether it is made under a trust or a valid will, or whether it meets the conditions specific to gifts. In addition to gifts between living persons and donatio mortis causa, the term “gift” can also be used to refer to the transfer of property in the form of a gift, which uses various instruments for its realization. [57] PAJLO/POLAJ, Canadian Common Law Dictionary: Law of Property and Estates / Dictionnaire canadien de la Common Law: Droit des biens et droit successional, (Cowansville, Québec, Yvon Blais / Canadian Bar Association, 1997). The French common law terms used are taken from this dictionary. If the term is not included, we use the Juriterm database of the Centre for Legal Translation and Terminology of the Faculty of Law of the Université de Moncton. Although it is addressed only to specific institutions of donatio mortis causa and gifts between living persons, the term “gift” at common law includes all transactions aimed at transferring property to a person without consideration, regardless of the form or instrument in which such transfer is made. With respect to the manual gift of personal property, it appears that the gift of personal property is similar at common law, as both require complete delivery. Here too there is a difference, because in civil law delivery concerns the right to the thing that is transferred and not to the thing itself. Therefore, in civil law, the delivery of a cheque is a sufficient supply of personal property,[88] whereas the cheque would have to be presented for payment and cashed for the gift to be complete at common law.
[89] A donation causa mortis is only effective if the donor actually dies.