Bank: Savings Bank CologneBonn IBAN: DE47 3705 0198 1934 9865 12 BIC: COLSDE33XXX
Bank: Banca March IBAN: ES93 0061 0038 2402 0569 0174 BIC: BMARES2M
The Donation is expressly regulated in the German Civil Code in §§ 516 ff. BGB (German Civil Code). According to the legal definition in § 516 (1) BGB, the gift is a free gift, through which someone enriches another from his or her assets. A gift is usually made as a gift by hand, but may also take the form of a promise to give. In any case, a gift is to be distinguished from so-called unnamed gifts. Furthermore, it should be noted that a gift is generally taxable above a certain amount.
The Donation is regulated in §§ 516 ff. BGB. It is a gratuitous legal transaction in which the contracting parties agree that one party will give the other something from its assets free of charge. It is therefore a unilaterally binding contract (so-called "contract of sale"). Donation contract), as only the donor has to provide a service.
According to §518 BGB, a contract of gift is only effective if the promise of gift is notarized otherwise the transaction is void due to lack of form (cf. §§ 125, 128 BGB). The purpose of notarial certification is not only to prevent hasty promises of gifts, but also to clarify that a serious promise has actually been made. Furthermore, this written form serves to avoid disputes about alleged gifts by deceased persons.
In practice, a gift is regularly made without a notarised promise of gift. However, the lack of form can be remedied by executing the legal transaction, i.e. if the donor voluntarily fulfils the promised performance within the meaning of section 362 (1) BGB. This is then referred to as a gift by hand.
According to § 525 BGB, a gift is also possible under a condition. In this context, a condition means a stipulation added to the gift that the donee is to be obliged to perform a service - be it an act or omission - which is to be performed on the basis of and from the value of the gift (so BGH NJW 82, 818). Such a condition can thus also merely have as its content a restriction on disposal of the object.
However, a condition is only effective if it does not violate a statutory prohibition according to § 134 BGB or good morals according to §138 BGB.
Furthermore, the requirement must always be distinguished from an advice, wish or recommendation.
Pursuant to section 525, paragraph 1 of the Civil Code, the donor may demand the execution of the condition if he has made a contribution on his part. The donee may only refuse to enforce the condition pursuant to section 526 of the Civil Code if, as a result of a defect in the right or a defect in the thing given away, the value of the donation does not reach the amount of the expenses required to enforce the condition. However, the donee may only refuse execution until the shortfall caused by the defect is made up. If the donee executes the condition without knowledge of the defect, he or she may demand reimbursement from the donor of the expenses caused by the execution to the extent that they exceed the value of the gift as a result of the defect.
If the donor makes a promise of donation, i.e. initially remains in possession of the object or holder of the right, he is only liable for intent and gross negligence according to § 521 BGB. This limited Liability finds its justification in the altruism of the donor.
According to § 523 paragraph 1 BGB, however, the donee has a claim for damages against the donor if the donor fraudulently conceals a defect in the right (so-called "defect of title"). Legal defect). The same applies according to section 523, paragraph 2, sentence 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) if the donor has promised the performance of an object which he has yet to acquire himself, if this object suffers from a defect of title and if the donor was aware of this at the time of acquisition of the object or remained unaware of it due to gross negligence.
According to § 524 paragraph 1 BGB, the donee also has a claim for damages against the donor if the donor fraudulently conceals a defect in the thing given away.
According to § 519 paragraph 1 BGB, the Schenker entitled, the fulfilment of a promise made as a gift to refuse, to the extent that, taking into account his other obligations, he is unable to fulfil the promise without jeopardising his reasonable maintenance or the fulfilment of the maintenance obligations incumbent on him by operation of law. In this context, it is irrelevant whether the donor himself has caused his need or whether he could have foreseen the existence of the need at the time of the gift.
If the donor has made a gift and an emergency need then arises within the meaning of section 528, paragraph 1 of the Civil Code, the donor is Schenker equally justified, to reclaim the gift made. According to § 529 BGB, this Claim for repayment but then excluded if the donor has caused his indigence intentionally or through gross negligence or if, at the time of the occurrence of his indigence, ten years have elapsed since the provision of the object as a gift. The same shall apply if the donee, taking into account his or her other obligations, is unable to return the gift without jeopardising his or her professional maintenance or the fulfilment of the maintenance obligations incumbent on him or her by operation of law.
Pursuant to section 530(1) BGB, the donor may revoke a gift if the donee has become aware of the gift through a grave misconduct is guilty of gross ingratitude against the donor or a close relative of the donor. As Reasons for revocation Examples of this are a threat to the life of the donor, physical abuse, a groundless criminal charge, an incriminating statement despite the right to refuse to testify, serious insults and the like. According to § 531 paragraph 1 BGB, revocation is effected by declaration to the donee. Notarial certification is not required here. According to § 532 BGB, a Revocation but then excluded if the donor has forgiven the donee or if one year has elapsed since the person entitled to revocation became aware of the occurrence of the conditions of his or her right.
The increase in assets of the donee is in principle subject to gift tax. It is levied according to the same provisions as inheritance tax, i.e. as soon as the sum of the gifts between the specific parties in the last ten years exceeds the corresponding tax-free amount.
