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Concept of a Deed of Gift
The private law of continental Europe is built on the principles of Roman law, whose theory of obligations remains a significant element of the legal regulation of contractual relations to this day. For this reason, the concept of a deed of gift also dates back to the period of Roman jurists in classical antiquity.
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Gifting is the most common type of gratuitous contract, taking place between two or more subjects—contracting parties—where one is the donor and the other is the donee. The deed of gift is regulated in Sections 628 to 630 of the Civil Code. The function of a deed of gift is the gratuitous increase of the donee’s assets at the expense of the donor. The subject of a deed of gift can be any asset, property, or right.
In practice, we frequently see parties deciding whether to enter into a purchase agreement or a deed of gift. However, with a deed of gift, it is important to note that the donor can demand the return of the gift. Similarly, one must also keep in mind the offsetting of the gift in inheritance proceedings.
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- Gifting real estate to a grandson / granddaughter
- Gifting real estate to children (son, daughter)
- Settlement of co-ownership
- Representation in cases of real estate contract invalidity
Revocation of a gift
Giving and receiving gifts very often represents a purely informal act where one might not expect any legal consequences to arise. Even though gifting frequently stems from a desire to show gratitude or affection, it carries a significant legal dimension that does not always place the donee in an advantageous position. Reciprocally, particularly from a moral standpoint, the donee is expected to behave respectfully towards the donor and their family.
This understanding serves as the foundation for the regulation in the Civil Code, which grants the donor the right to demand the return of a gift in situations where the donee fails to act toward the donor in an appropriate manner and their conduct grossly violates good morals and reaches a certain level of intensity. The Civil Code does not contain a definition of good morals, leaving room for case law to define it more specifically.
A qualified violation of good morals is most frequently an immoral act, which may occur as a single incident or as conduct involving continuous violation. In this context, the Supreme Court of the Czech Republic stated in decision file no. 33 Odo 538/2003 that even less severe violations can constitute a gross violation of good morals if they result in a deep breakdown of relations between the donor and donee, provided the donee committed them more than three times and there is a connection between such acts.
Mere ingratitude is not considered immoral conduct. However, the donee’s conduct regarding a gross violation of good morals does not necessarily need to meet the elements of a criminal offense or an administrative infraction. According to case law, the conduct must possess significant intensity or constitute a continuous violation of good morals, such as physical assault, severe insults, failure to provide necessary assistance, etc.
The law likewise foresees that a donor may feel that the donee’s immoral conduct violating good morals has also harmed members of the donor’s family. Therefore, the same legal consequences attached to conduct grossly violating good morals apply as if directed at the donor themselves when the donee’s conduct is directed against members of the donor’s family.
Revocation of a gift after the donor's death – Judgment of the Supreme Court of the Slovak Republic, Case No. 4 Cdo 111/2024
One of the newer decisions that also addressed this issue was the judgment of the Supreme Court of the Slovak Republic, Case No. 4 Cdo 111/2024. In the judgment, it dealt with the question of the revocation of a gift from the heir of a deceased person who was the donee of the gift in question. The Supreme Court agreed with the reasoning of the Regional Court, according to which demanding the return of a gift is permissible only from the donee. If the gift passed into the ownership of the donee’s heir through inheritance, the return of the gift in question cannot be requested, even in the event of inappropriate behavior by the heir.
According to Section 630 of the Civil Code, the grounds for demanding the return of a gift arise when the donee behaves inappropriately toward the donor or their relatives, violating good morals. The Regional Court in Banská Bystrica stated in decision No. 15Co/132/2018 in another matter that a violation of good morals includes, for example, physical violence or severe insults.
The Supreme Court emphasized that ownership can only be acquired on the basis of legal facts specified by law (e.g., through inheritance, a purchase agreement, a deed of gift, etc.), which Section 132(1) of the Civil Code directly lists in an exhaustive manner. The Supreme Court added in the aforementioned decision that “courts and other public authorities are not authorized to create new ways of acquiring ownership rights not foreseen by law, and the mere fact that someone acts contrary to good morals does not mean that their right is extinguished and automatically transferred to another person.”
Returning the original gift to the plaintiffs would therefore be in conflict not only with the provisions of the Civil Code, but also with the principle of legal certainty, which includes the protection of acquired rights. The Supreme Court also reiterates that the right of ownership is one of the fundamental property rights and enjoys special protection under Article 20 of the Constitution of the Slovak Republic. Furthermore, the obligation to return a gift under Section 630 of the Civil Code does not pass to the donee’s heir.
If the court were to order the return of the inherited gift to the original donors, it would, according to the Supreme Court, create legal uncertainty and disrupt trust in the registration of ownership rights in the real estate register. The plaintiffs had the opportunity to secure legal protection during the donee’s lifetime—for example, by establishing an easement of lifelong habitation, entering into a maintenance agreement, or directly in a will. However, the court must not remedy the inactivity of the parties by creating a new, hitherto non-existent ownership right based merely on moral considerations.
Procedure for a donor seeking the revocation of a gift
The party with standing to sue who is entitled to demand the return of a gift is naturally, first and foremost, the donor; however, under certain circumstances, it may also be a legal entity, particularly in cases where damage to its good reputation has occurred.
In the case of multiple donors, certain questions may arise regarding the exercise of the right to demand the return of a gift. However, if the subject of the gift was property held in co-ownership, each co-owner may revoke only their own gifted share.
The procedure for a donor seeking the revocation of a gift is governed by Section 630 of the Civil Code and cannot be equated with withdrawal from a contract, because under Section 48(2) of the Civil Code, withdrawal cancels the contract ab initio (from the beginning), unless otherwise provided by law or by agreement of the parties. However, the dissolution of the gift relationship occurs only at the moment when the unilateral legal act reaches the donee’s sphere, meaning the deed of gift is not canceled ab initio. The donee’s obligation to return the subject of the deed of gift does not depend on whether the donor has asserted the right to return the gift in court; the deed of gift is dissolved by the mere declaration of intent of the donor, specifically at the moment this declaration enters the donee’s sphere of control. Subsequently, the original legal relationship is restored ex nunc (from now on), and the donee becomes an unauthorized possessor and is therefore obliged to surrender the property. It does not matter whether the property is movable or immovable.
The right to demand the revocation of a gift is subject to the general three-year statute of limitations, which begins to run on the day the donee acted in the manner specified in Section 630 of the Civil Code.
Inheritance proceedings and gifting
At first glance, gifting is subject to no restrictions; the owner of property may freely dispose of it during their lifetime. However, if property is gifted during the owner’s lifetime to one of the future statutory heirs, this legal fact may impact the inheritance proceedings through the legal concept of bringing gifts into hotchpot /collation/.
It is also possible to bestow gifts through a deed of gift that are referred to in legal terminology as customary gifts. These include, for example, birthday, name day, or Christmas gifts. This type of gift is not brought into account when calculating inheritance shares in inheritance proceedings. In the case of accounting for gifted shares in inheritance proceedings, it is important to know whether the decedent executed a will or whether the statutory heirs are inheriting. If the deceased did not execute a will (with the exception of where the decedent gave an instruction to offset the gift in a will), the statutory heirs inherit in such a way that whatever an heir received free of charge from the decedent during their lifetime is credited against their inheritance share. The offsetting takes effect by reducing the donee’s inheritance share compared to the inheritance share they would have been entitled to had they not received the gift.
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Care obligation in a deed of gift
In conclusion, we would like to point out that when drafting a deed of gift, care must also be taken regarding the inclusion of any care obligation in the deed of gift, as this could cause its invalidity.
