top of page
Search

Is it Possible to Make Donation Conditional?

Writer's picture: Unal&PartnersUnal&Partners


As Unal&Partners Law Firm, we have examined for you whether it is possible to bind the general validity conditions and details of the donation agreement, which is frequently on the agenda after the last earthquake disaster in our country, to the condition that it is used in accordance with its purpose.


What is and is not a donation agreement?


A donation agreement is a unilateral agreement in which the donor undertakes to make a donation from his assets to the donated. Waiving a right that has not yet been acquired or rejecting an inheritance is not considered donation. The fulfillment of a moral duty is also not considered donation. The condition of validity of the donation is that it is unrequited.


What is the legal equivalent of a donation agreement? What are the validity conditions?


Donation agreement has found a place for regulation in Article 285 of the Code of Obligations. A donation agreement is a unilateral agreement in which one of the parties undertakes to transfer all or part of its assets to the other party-donate-without expecting anything in return. Although the donor accepts the donation and there are two parties as a result of being a agreement, it is accepted as a unilateral agreement since the donor does not enter into a certain debt. However, if the donated is under a certain obligation, it should be accepted as a bilateral agreement.


The donation agreement must be made in writing. The mere promise of donation cannot be considered a pardon agreement.


The donor must make the donation from his/her own assets. Otherwise, the donation will not be valid.


The subject of donation can be anything or right that is assignable.


The donation of an immovable or the establishment of a real right on the immovable depends on the fact that it is made in an official way. The purpose of the official form is the formal arrangement of the donation agreement by the Notary.


The donation of a movable item is completed by hand delivery, that is, by transferring the possession to the donated party. Donation can also be made on the condition that certain conditions are met. The donor can also forgive by setting certain conditions or by imposing certain assignments on the donor. The donor may stipulate that what he donated should be returned to him if the donor dies before him. If the donated thing is immovable, this condition must be annotated in the land registry.


Who are the parties to the donation agreement?


There must be at least two parties in the donation agreement, one on the one hand making the donation and the other on the other hand, the donor in favor of.

In donations, the donor's assets decrease, while the donor's assets become richer. For this reason, it is absolute that donation is a profitable transaction.


Is it possible to make a donation conditional? Does it bring an exception to the condition that the donation should be made to a public institution?


The donor can put attributions to his donation. The donor may request the fulfillment of the shipments accepted by the donor pursuant to the agreement. For example, it was included in the decision of the 14th Civil Chamber of the Court of Cassation dated 09.01.2017 and accordingly: the donor stated that he donated the immovable on the condition that the Municipality use the immovable as a health center, and only after that it was determined that it was used for a different purpose, that is, the performance stipulated. In case of non-compliance, he/she will have the opportunity to recourse from the donation. (14th Court of Appeals D.D: 09.01.2017)


In the immovable donation, the donor can write the benefit in the agreement as a condition as long as he lives from the immovable donated - on condition that the record is life. In this case, the donor benefits from the income of the immovable as long as he lives. However, no other disposition can be made on the real estate. In order for this condition to be asserted against third parties, it must be annotated in the land registry.


I waived from donating, can I get the donation back?


A person will be able to withdraw his offer of donation to another person, without being subject to any sanction, until the donor accepts it.


However, after the acceptance, the donor will be able to withdraw the donation and request the donor back within one year, starting from the day he learns the reason for the withdrawal, if one of the following situations occurs:

  • If the donor has committed a serious crime against the donor or one of their relatives, the weight here should be determined not according to the amount of punishment for the crime, but according to whether it has a nature that shakes family ties.

  • If the donor has acted substantially in violation of his legal obligations towards the donor or a member of his family,

  • If the donor has not fulfilled the upload without just cause in the upload donation.

The extent of the donor's obligation to repay is determined by the rules of unjust enrichment. Since the donation is unrequited, it cannot ask for additional compensation.


The promise of donation can be revoked in the presence of the following situations:

  • The realization of one of the reasons for which a donated property may be requested to be returned.

  • If the person's financial situation has changed to such an extent that it makes the fulfillment of the donation extraordinarily difficult for him,

  • After promising donation, if new family obligations have arisen for him or these obligations have become significantly heavier, then the donor's withdrawal conditions have been met and the donor can withdraw from the donation.

  • If the inability of the donor to pay his debt is determined or his bankruptcy is decided, then the obligation of performance for the donor is also eliminated.

Unal&Partners Legal Team

11 views0 comments

Recent Posts

See All

Comments


bottom of page