This means that in order to conclude a deed of gift, it is necessary for both parties to agree on its essential elements: the unencumbered nature of giving and the subject of the gift.
Unencumbered nature means that you cannot, in return, claim compensation or a favor from a person you gifted, as that would represent a burden to their property. So, the gift must be, in one word – free.
Such a legal transaction is called a good deed and it is a way for a donor to present gratitude or to reward their donee.
However, the mere consent of will is not sufficient for the deed of gift to be valid, but it requires a real act, transfer of assets. If a written deed of gift is made, it obliges the donor to make a real act – i.e. donate gifts.
However, as the gift can be given with oral method, the gift can be transferred even before or without the written agreement, and such an act will be considered as a gift. Of course, this refers exclusively to movable items, since the gift of immovable property must be done through a written agreement solemnized with a notary public.
The subject of the gift may be the property of the donor or any other right they have. So, we can give someone the following gifts: mobile, immovable, consumable or inconsumable things, even things that are to be bought in the future, which are not yet bought but whose acquisition is certain. Also, by gifting someone, you can grant claimable rights to that person and, as well as other acts in favor of property, such as forgiveness of debt or payment of someone else’s debt.
What cannot be the subject of a deed of gift are a person’s rights and easements related to personality. For example, the right to inheritance, moral copyright, permission to hold weapons, etc. …
Surely, as with everything, there are some reserves and exceptions to the rule, even with gifts…
- Specifically, when it comes to the rule of unilateral giving, this rule can be made relativized when it comes to one of the deeds of gift types. That is the deed of gift with a burden. In this case, donors may retain the right for themselves or instruct a donee to assign another right to a third party or do something to someone.
- Although a donor is not responsible for the missing things, because the gift is a good deed, in the case of a deed of gift with cash as the subject, they owe the donee the legal default interest rate in the event of a delay in fulfillment.
- Thus, even when the burden of any gift exceeds the value of the gift, the donor is responsible for the legal and material defects of things.