Cancellation of the gift contract. The grounds for cancellation of the gift agreement

Sometimes I so want to make pleasant, even to give my property. But circumstances can change, and it is necessary to cancel the gift agreement. Naturally, a logical question arises: how can this be done?

The concept of gift agreement

The gift contract refers to a gratuitous transaction, as there are no counter property rights with the donor. If the donor receives in return from the gifted another property or money, then the transaction will be recognized as null and malleable.

A gift can be real or consensual. The latter term means that the donation deal is only promised and must occur in the future.

Subject of the contract may be any property, claim rights. For example, the donor can reject in favor of the gifted future author's fee. The main thing is that the subject-matter of the treaty should be clearly defined.

Cancel the gift contract

The easiest way to cancel a deal is to simply cancel the contract. But this is possible provided that the transaction has not yet been registered with Rosreestr. After registration, it can be canceled by a notary, but it is unlikely that a gifted person will voluntarily choose to do it. Therefore, the donor has only one way - going to court. But even for the trial it will be necessary to collect conclusive evidence for the cancellation of the treaty.

There are good reasons for canceling the gift agreement. An exhaustive list of circumstances is listed in art. 578 Civil Code, which will allow to challenge the gift agreement:

• An attempt on the health and life of the donor. If the actions of the gifted have led to the death of the donor, then the heirs of the latter can cancel the transaction.
• Negligent attitude to the subject of donation. For example, if the gifted does not follow the housing that was given as a gift, but for the donor it is of particular value.
• The cancellation of the gift can also take place if the donor has experienced the gift, again, if such a condition is spelled out in the contract itself.
• The heir can revoke the transaction, if such a right is fixed in the gift contract itself.

For legal entities and entrepreneurs, there is one more reason - the transaction can be canceled by interested parties if a deal was made by the debtor six months before the beginning of the bankruptcy procedure.

The donor has the right to refuse if the subject of the contract is promised and must be transferred in the future. Reasons for such a refusal can be significant changes in the material or marital status of the donor, the deterioration of health. Simply put, that the current conditions do not allow the donor to realize the transaction, as it will lead to a fundamental deterioration in his standard of living.

Negligence of the transaction

The cancellation of the gift contract is just one way to return the property.

The Civil Code provides for the donor other ways of recovering property - the recognition of the transaction as null and voidable.

There is no need to prove the nullity of the transaction in court. Signs of such an agreement:

• Does not contain essential conditions;
• Of the essence of the contract does not imply any rights and obligations for the parties;
• There is no description of the gift.

Another confirmation of the insignificance of the transaction is the contradiction of the provisions of the agreement with the current legislation. For example, you can not give a child. Such a transaction violates not only ethical norms, but also normative acts.

An imaginary transaction is also considered void. It means that if the rights and obligations of the parties do not appear from the terms of the contract. For example, if the donor made a deal, but did not intend to transfer the object of the contract to the gift-giving party, and the latter was not going to accept this thing.

The insignificance of a transaction can be characterized by pretense. It means that between relatives there is a contract, according to which the donor transfers, for example, an apartment, and the recipient pays a certain amount. Such a transaction can be regarded only as a feigned, as the contract of donation conceals the contract of sale of housing.

A transaction is considered null if one of the parties or both are incompetent persons. The same situation is with the underage parties to the gift agreement.

The gift contract in the Civil Code is also considered void if the subject of the contract is property that is in limited possession or is prohibited from being applied to it.

The contested transaction

To recognize a bargaining challenge, you must always go to court. Legislation distinguishes several grounds that will allow to challenge the gift agreement:

• If the gift agreement is signed without obtaining the appropriate consent, for example, from the spouse, if the property is in common ownership.
• If the gift agreement is signed by a person not authorized for such actions, for example, the head of the enterprise, according to the statutory documents, there is no right to donate, without first obtaining the consent of the general meeting of shareholders or another governing body.
• Transaction execution by persons aged 14 to 18 years, as well as incapable citizens.

The result of the cancellation of the gift agreement, on any grounds and in any circumstances, entails the transfer in kind of the property donated. If the property is not saved, then its value is subject to monetary compensation from the person being presented.

The refusal of the donor

The gift agreement on the Civil Code can be terminated and on the initiative of the gifted, but on the condition that the subject of the contract has not yet been transferred. By agreement of the parties, the contract can also be terminated, but before the transfer of property to the recipient.

The refusal of the gifted person is formalized in the same form as the contract itself, in simple written form or by a notary.

Appeal to the court

The statement of claim is a petition to the court, in which the claims of the applicant (plaintiff) are displayed. You can file a claim personally or through an authorized person.

The form and content of the statement of claim are clearly defined in the Civil Procedure Code.

The "cap" of the document indicates the exact name of the court, where the claim is sent. Full details of the plaintiff are prescribed. Below are described the circumstances that gave grounds for applying to the court, all information should be spelled out correctly and clearly. Next, you can describe what pre-trial dispute resolution measures have been taken.

At the end of the application, the requirements for the beneficiary and the list of attached documents are described. You can attach a copy of the contract of donating an apartment or other property, a written confirmation of the defendant's improper conduct, a receipt for payment of the state fee and documents proving that the plaintiff tried to settle the dispute peacefully.

It is recommended to clearly state the contact details of the plaintiff and the defendant, up to the address of the electronic box.

The statement of claim is drawn up in several copies, for each of the parties that will participate in the trial.

Within 5 working days from the moment the claim is submitted to the court, a judge is determined who will conduct the proceedings, he makes a determination about the initiation of the civil process.

Grounds for refusing to accept an application

The application for the cancellation of the gift contract may not be accepted for production, the jurisdiction is not respected, or the arbitration judge has already decided on this issue. Applications from incompetent persons are also not considered.

The plaintiff has the right to withdraw his application before the case is taken into production.

Limitation of actions

In the event of the cancellation of the gift of a special period, there is no limitation period. But the legislation nevertheless highlights some cases when the period is completely dependent on the essence of the claim:

• If the transaction is contested, then the period is 12 months from the moment when the plaintiff could learn about the fact giving the basis for challenging the transaction;
• For the recognition of the transaction null and void - the general limitation period of 3 years from the date of signing the donation agreement.

Grounds for the suspension of the limitation period

1. If the plaintiff could not apply to the court due to unforeseen or extraordinary circumstances.
2. Passage of service in the army by the donor or gifted, the introduction of martial law.
3. A moratorium was imposed on the fulfillment of obligations under the treaty.

Gift for an apartment and its cancellation

Everyone who decides to present another should understand that the agreement of donating an apartment does not imply making changes in the conditions, it can not be rewritten. Indeed, can be terminated by agreement of the parties, but hope that the gifted will agree, perhaps, not worth it.

The cancellation of the gift-giving agreement by the donor presupposes the application to the court and the provision of irrefutable evidence. Namely:

• Absence of a notarized consent to the transaction from the spouse, provided that the property is jointly acquired;
• The plaintiff can prove that he signed the contract under psychological or physical pressure;
• If the gratuitous person is a person in the public service, such persons are prohibited from accepting any gifts;
• Availability of evidence that the signature of the donor is forged.

Do not forget about the norms of Art. 578 of the Civil Code of the Russian Federation, which contains a wide range of grounds for renouncing the gift agreement.

As evidence, the court can take into account not only written explanations of the parties, but also photographs, extracts from medical reports, video recordings, audio recordings and eyewitness testimony.

Once evidence is collected, you can safely go to court.

Gift for movable property and its cancellation

The car also refers to movable property, but at a price it is sometimes commensurate with real estate. As a result, claims for the abolition of the contract of donating a vehicle are encountered in court not less often than disputes over immovable property.

It can not be said that if you wish to return movable property, other evidence is required than is provided for other cases. Nevertheless, it is still possible to find grounds for canceling the contract, for example:

• If the gift contract contains mistakes in writing the requisites of the parties or in describing the subject of the gift;
• One of the conditions - property passes into the ownership of a gift only after the death of the donor, such a transaction has all the features of a will;
• Absence of signatures of one of the parties, that is it is possible to prove the presence of a human factor.

Do not forget that the gifted person will not stand aside and will also collect evidence so that the plaintiff can not protest the contract. In some cases, if the giftee really believes that all the claims of the other party to the transaction are illegal, then it is better to bring a lawyer. Before the process, it is recommended that both sides familiarize themselves with the judicial practice in resolving such cases.

Arbitrage practice

The cancellation of the gift contract was based on the fact that the donor tried to prove that his only apartment was donated under the influence of the relatives' opinion to the granddaughter. The plaintiff hoped for material assistance, for medical care and maintenance of housing. However, according to the plaintiffs, the gratuity did not allow to live in the apartment quietly. On the basis of this, a lawsuit was filed, and the claims were justified by the fact that at the time of signing the treaty the plaintiff did not understand the real consequences, was impressed by the promises and untimely death of her husband. The defendant, naturally, did not recognize the claim.

Even in the appellate instance, the plaintiff was unable to prove her demands, to substantiate the claim that she had signed the deal under someone else's influence, as a result, the claim was not satisfied.

Another case, when a citizen gave one of his apartments to his cousin. The gifted had no children, but only a wife with whom the relationship did not add up, so the brothers provided for the clause that the deal could be canceled. For two years, the donor was absent, having left for another country, upon arrival in Russia, learned that his brother had died, and his wife inherited housing and had already sold it. Relying on the terms of the contract, the donor asked the court to demand that the heir return the apartment or refund its value. As a result, the court took the plaintiff's side and ordered the defendant, who did not appear in court, to reimburse the cost of the sold housing.

Finally

It should be remembered that, in spite of a small number of reasons for canceling the gift agreement, the donor can still prove his rightness, and the grantor will have to refund the value of the received property or return it.