The concept of donation means the transfer of rights to certain property on a gratuitous basis. From a legal point of view, donation is the transfer of one’s own property or certain items to another person for full possession, free use and disposal without receiving any profit at the same time. Donation belongs to the category of inalienable civil rights of every citizen of the Republic of Moldova. Ensuring this right is carried out on the basis of the current legislation of the country, as well as the freedom to dispose of one’s own property. The donation procedure may provide for the mandatory execution of the relevant transaction. Moreover, in many cases, property or a thing can be donated without the preparation of related documents, subject to certain conditions.
In the case when the subject of the donation is real estate owned by a citizen on the basis of a certificate of the right of the owner, two scenarios are envisaged:
- Preparation of a donation agreement with mandatory certification in the presence of a notary;
- Preparation of a donation agreement in a standard written form without certification.
Please note that the donation agreement requires mandatory state registration on the grounds that, as part of this type of property transaction, the donor transfers the rights to the object in the form of real estate to the donee, who is the second party to the transaction. The regulation of the procedure and conditions for processing and accepting a donation is carried out by the Civil Code of the Republic of Moldova and the legislation regulating taxation issues.
According to this article, the gratuitous transfer of property and rights to it is a mandatory requirement. At the same time, the drafting of an agreement of the type in question guarantees its reality and consensuality.
Any promise to make a donation may be recognized as a donation contract, provided that:
- This promise has been executed in accordance with the law. The promise, which determines the will of the donor, is expressed in writing and is accompanied by an appropriate contract.
- This promise, expressed in writing, contains a clear definition of the intention to transfer property free of charge to another person in the future or to release this person from current property obligations.
Drawing up a donation agreement in a written official form is mandatory when it comes to the transfer of movable property, provided that the donor is a legal entity, and the value of the gift corresponds to that provided for by the current legislation for the cases under consideration. We strongly recommend that our clients make sure that the donation agreement is correctly and legally executed. Cooperating with specialists of lawyers, you will be able to receive qualified legal assistance in full without the associated risks.
Types and objects of donation
Absolutely any things can be donation items, including specific items in the form of financial assets and securities, provided that these items have not been withdrawn from circulation. If the subjects of donation are things that have certain restrictions on circulation, then the gift must be made in compliance with the legal regime defined by law in relation to these things. For example, if a deed of gift is issued for a hunting rifle, then only a person who has a license to store weapons can receive it.
The subject considered when donating provides for the possibility of describing as a specific thing, a right or exemption from certain obligations. An agreement expressing the intention to donate something indefinite is considered null and void.
The list of types of donation includes agreements on:
- transfer of the personal property of the donor to the donee in full possession;
- transfer of property rights of the donor to the donee;
- transfer of the property rights of the donor in relation to third parties to the donee with the actual gratuitous transfer of the right to claim;
- release by the donor of the donee in relation to the performance of existing property obligations;
- release by the donor of the donee in relation to the fulfillment of existing property obligations to a third party with the actual gratuitous acquisition of debt on the basis of the procedure for transferring debt, subject to the consent of the creditor.
The general list of norms of the Civil Code of the Republic of Moldova, which are directly related to the varieties of gift agreements described above, is currently small. At the same time, all varieties of a donation agreement are united only by the sign of gratuitousness.
Who and what can donate?
It is impossible to draw up an agreement of the form in question in the following cases:
- if the donor is the official representative of a minor child or a person recognized as legally incompetent, and intends to make a gift on behalf of his ward;
- if the gift is intended for employees of educational institutions of various levels, medical organizations and other organizations that provide social and related services, including organizations for orphans, and so on, provided that the donor or relatives of the donor interact with these organizations and institutions as pupils, patients and so on;
- if the donee is a person holding public office in Moldova, as well as performing the role of municipal or state employees, employees of state banking institutions on the basis of official powers and official duties determined for these persons.
- if the participants of the donation are two commercial organizations.
Only those things and property that belong to the potential donor on the basis of property rights are subject to donation. If the donor is a legal entity that has this or that thing on the basis of the right of economic management or management, then the donor can donate this thing, subject to obtaining the consent of the owner and the absence of contradictions in the legislation. In the case of low-value gifts, this restriction generally does not apply.
Advantages and disadvantages of giving
The list of advantages of drawing up an agreement in this form includes the following:
- While a will involves the transfer of property to a new owner after the death of the testator, when donating, the transfer takes place immediately from the moment a formal agreement is concluded. If we are talking about a donation for real estate, then the owner’s rights arise immediately after the registration of the agreement.
- If the parties to the agreement are relatives, they are released from the obligation to pay taxes.
- If a share in property rights is transferred to the donee on the basis of a donation, the owner does not need to obtain consent to the transaction from the other owners. In the case of a purchase and sale transaction, the remaining owners have the right of pre-emption, which becomes a certain complexity and causes a waste of time.
- If the property was received as a gift, then it does not imply division after the dissolution of the marriage between the spouses.