One of the problematic issues that arise in the practical economic activities of legal entities is the issue of selling a share in the authorized capital of a business company (Limited Liability Company). An agreement for the donation of a share in the authorized capital of an LLC may be declared void as an imaginary transaction if it has not been executed and the company participant who ceded the share under such an agreement continues to exercise the rights of the participant.

In practice, situations arise when a company participant enters into a donation agreement for a share in the authorized capital of an LLC, without having the goal of transferring this share at the time of its conclusion, and in fact continues to exercise the rights of the participant. In such cases, the question arises about the possibility of qualifying such a gift agreement as an imaginary transaction and, as a result, recognizing it as void on the basis of clause 1 of Art. 170 Civil Code of the Russian Federation.

The following example from judicial practice can serve as an illustration of this statement. Resolution of the Federal Antimonopoly Service of the North-Western District dated January 22, 2013 in case No. A44-619/2012//SPS Consultant Plus.

“...The agreement dated November 15, 2007 formalized the donation of P.L. shares in the amount of 39.66% of the authorized capital of the Company with a nominal value of 4,000,000 rubles.

Challenging the gift agreement concluded between P. and L. as an invalid transaction, V. referred to the violation of the procedure for assigning a share established by the charter of the Company, as well as the fact that P. did not donate the share on November 15, 2007, since he remained a member of the Company until December 29, 2007, when the Company accepted and registered P.’s application to leave the Society.

From the case materials it follows that after the conclusion of the disputed agreement on November 15, 2007, P. actually continued to remain a participant in the Company, and on December 29, 2007, he resigned from the membership. Under the agreement dated 02/09/2008, concluded between P. and the Company, P., in connection with his exit from the Company, was transferred property in the amount of 17,563,431 rubles, corresponding to his share in the authorized capital of the Company in the amount of 39.66%.

Having concluded the gift agreement, P. and L. did not fulfill it and did not intend to perform it, and the transfer of the share to L. was not actually provided for by the parties when concluding the agreement.

Under such circumstances, the conclusion of the court of appeal was recognized as lawful, the disputed agreement meets all the characteristics of a transaction made only for show, without the intention of creating legal consequences corresponding to it, that is, imaginary, which, by virtue of paragraph 1 of Article 170 of the Civil Code of the Russian Federation, is void.

Analysis of Art. 578 of the Civil Code of the Russian Federation allows us to talk about another important problem of law enforcement practice: paragraph 1 of this article establishes the donor’s right to cancel the gift if the donee has made an attempt on his life, the life of one of his family members or close relatives, or has intentionally caused bodily harm to the donor. In case of intentional deprivation of life of the donor by the donee, the right to demand cancellation of the donation belongs to the heirs of the donor.

Clause 1 of Art. 578 of the Civil Code of the Russian Federation contains an exhaustive list of options for unworthy behavior of a gifted person, which make it possible to raise the question of canceling the gift. These include: taking the life of the donor, causing him any bodily harm (regardless of their severity) and an attempt on the life of the donor or his relatives.

Thus, the verdict of the magistrate, which has entered into legal force, by which the donee is found guilty of committing a crime (infliction of bodily harm) against a close relative of the donor (wife), in accordance with the provisions of Article 578 of the Civil Code of the Russian Federation, serves as the basis for the cancellation of the donation agreement for residential premises. Definition of St. -Petersburg City Court dated August 17, 2010 N 33-11269. The verdict of the magistrate, which has entered into legal force, by which the recipient is found guilty of committing a crime (causing bodily harm) against a close relative of the donor (wife), in accordance with the provisions of Article 578 of the Civil Code of the Russian Federation, serves as the basis for the cancellation of the donation agreement for residential premises, which is common property. spouses, at the claim of the victim as a participant in joint property, and therefore as a participant in the gift agreement // Website of the St. Petersburg City Court: http://sankt-peterburgsky.spb.sudrf.ru.

“During the marriage of K.I. The share in housing cooperative no. 1241 for a two-room apartment was paid in full. 04/23/2003 with the consent of K.T.’s wife. the apartment, which is the common property of the spouses, was transferred to K.I. as a gift to the son of K.A. The ownership of the said apartment is registered for K.A. GUYU "State Bureau of Registration of Rights to Real Estate" 05/13/2003.09/28/2006 K.I. died.

When filing a lawsuit, K.T. referred to Art. 578 of the Civil Code of the Russian Federation and, as a basis for canceling the donation, indicated that in relation to K.A. there is a verdict of the magistrate of court district No. 60 of St. Petersburg dated February 13, 2009, which has entered into legal force, by which K.A. found guilty of committing a crime against K.T. crime under Part 1 of Art. 119 of the Criminal Code of the Russian Federation. The court proceeded from the fact that the fact of causing bodily harm to K.A. K.T. established by a verdict of the magistrate of court district No. 60 of St. Petersburg that has entered into legal force. In such circumstances, and taking into account the provisions of Art. 572 of the Civil Code of the Russian Federation, the court of first instance reasonably satisfied the claims of K.T. in connection with which, the donation agreement dated April 23, 2003 was terminated.”

An attempt can manifest itself either in the form of causing physical harm (in judicial practice in criminal cases, grave and moderate harm to health is considered dangerous to life - Articles 30 and 105, 111, 112, 115, 116 of the Criminal Code of the Russian Federation of June 13, 1996 N 63- Federal Law), or in organizing an encroachment. Actions that allow the donor to cancel the donation must be committed by the donee intentionally.

Thus, these actions do not include careless actions, as well as the actions of persons deprived of civil capacity at the time of their commission - minors under the age of 14 and persons recognized as incompetent.

The Civil Code of the Russian Federation does not establish criminal judicial prejudice as a condition for the cancellation of a gift, however, the fact that the donee has committed an attempt on the life of the donor or one of his relatives must be confirmed either by a court verdict in a criminal case that has entered into legal force, or by a court decision made in accordance with the procedure civil proceedings.

We believe that in the event of cancellation of the gift agreement and the impossibility of returning the object of the gift in kind, the gifted person may have another obligation provided for by law in Article 7 of the Civil Code of the Russian Federation, namely a statutory obligation associated with unjust enrichment. In this case, in accordance with Article 1105 of the Civil Code of the Russian Federation, the plaintiff (donor) has the right to demand compensation from the defendant (donee) for the actual value of the property (gift) at the time of its receipt. However, it should be noted that, despite the existing legal grounds for filing a claim for the return of value in exchange for an unreturned gift, litigation related to the resolution of such disputes should be classified as complex. This is due to the fact that the fact of unjust enrichment requires proof, and the value of the gift included in the amount of the claim cannot always be justified by the market value of a similar item of gift.

Also in practice, situations often arise when a shareholder of a closed joint-stock company (CJSC) enters into a share donation agreement without complying with the requirements of the Law on Joint-Stock Companies on the pre-emptive right to acquire shares. If a shareholder, whose pre-emptive right has been violated, challenges such a transaction and demands that the rights and obligations under it be transferred to himself, he must prove that such a gift agreement is fraudulent.

Thus, a plaintiff challenging a share donation agreement in order to recognize it as a sham transaction covering up a purchase and sale agreement must prove that such a transaction was of a compensated nature. 14.8. Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 N 19 “On some issues of application of the Federal Law “On Joint Stock Companies” // Bulletin of the Supreme Arbitration Court of the Russian Federation, No. 1, 2004..

The courts proceed from the fact that, by virtue of paragraph 2 of Art. 170 of the Civil Code of the Russian Federation, a sham transaction, that is, a transaction that was made with the aim of covering up another transaction, is void. An interested party who has a pre-emptive right to purchase shares may demand that the rights and obligations of the buyer of shares in a transaction concluded with a third party be transferred to him if he proves that the agreement for the gratuitous alienation of shares (donation) concluded by a company participant with a third party is a sham transaction and in fact the shares were alienated on a compensation basis.

By virtue of paragraph 1 of Art. 572 of the Civil Code of the Russian Federation, a gift agreement is a gratuitous transaction. Thus, the subject of proof in such disputes includes clarifying the question of whether the shares were transferred free of charge or whether there was a counter-provision on the part of the buyer. The presence of a counter transfer of a thing or right, as well as the completion by the parties of a transaction aimed at covering up another transaction, in accordance with Art. 65 of the Arbitration Procedure Code of the Russian Federation must be proven by the plaintiff.

Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 N 19 “On some issues of application of the Federal Law “On Joint Stock Companies”

“...If an interested party who has a pre-emptive right to acquire shares presents evidence indicating that the agreement for the gratuitous alienation of shares (donation), concluded by a company participant with a third party, is a sham transaction and in fact the shares were alienated on a compensated basis , such an agreement, by virtue of paragraph 2 of Article 170 of the Civil Code of the Russian Federation, is void, and the rules governing the relevant agreement are applied to the transaction, taking into account its essence. A person whose pre-emptive right to purchase shares has been violated may in this case demand the transfer of the rights and obligations of the buyer of shares under a transaction made with a third party to him...”

Judicial and arbitration practice knows many disputes related to the donation of shares of a closed joint stock company by a shareholder to third parties. The court, when deciding a case when the formalities of donating shares in a closed joint-stock company have been complied with (the agreement and other documents are outwardly drawn up decently), and the interested party (plaintiff) has not provided direct evidence of the consideration of the transaction (receipt, act of acceptance and transfer of funds, etc.), agrees with a donation and refuses to satisfy the plaintiff’s demands to recognize the transaction as invalid.

Currently, judicial and arbitration practice is focused only on obvious evidence (compensation of the transaction), clearly confirming the nullity of the transaction. Decision of the Arbitration Court of the Sverdlovsk Region dated February 18, 2008 in case No. A60-2252/2007-C2. The court refused to satisfy the claim to invalidate (feigned) the agreement for the donation of company shares, since the case materials confirmed that the agreement is gratuitous // Reference and legal system Consultant Plus.

However, careful consideration of such a transaction makes it possible to identify many flaws and ambiguities, as well as to form a system of indirect evidence (absence of offers from the donee to other shareholders to sell shares of the company; execution of a donation agreement by a notary who does not service the area where the donor lives; non-reclamation by the notary from the donor documents confirming the powers of the donor; lack of reasonable grounds for the gift, since the donor and the donee did not know each other before the transaction; the donor has relatives to whom the shares should have passed due to the death of the donor; execution of powers of attorney for representatives whom the donor did not previously know or see , but which were noticed in raider operations; deliberate and systematic evasion on the part of the donor from appearing at court hearings, etc.). An unbiased consideration of the totality of circumstantial evidence cannot but lead to the obvious conclusion that the donation transaction was a sham. Otherwise, a person acting law-abidingly, i.e. another shareholder of the company falls into a state of hopelessness and defenselessness.

The foregoing shows that the mentioned provisions of Art. 7 of the Law on JSC Federal Law dated December 26, 1995 N 208-FZ “On Joint Stock Companies” (as amended on April 5, 2013) together with explanations of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 N 19 Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 N 19 “On some issues of application of the Federal Law “On Joint-Stock Companies” // “Bulletin of the Supreme Arbitration Court of the Russian Federation”, No. 1, 2004. and the corresponding judicial and arbitration practice create ample opportunities for the implementation of the so-called “hostile takeover” of a closed joint-stock company.

In highlighting the problematic issues of donation cancellation, it should be emphasized that a specific feature of the gift agreement, which distinguishes it from all other civil contracts, is the opportunity given to the donor and his heirs to cancel the donation. This feature is inherent both in contracts concluded by transferring a gift to the donee, and in contracts of promise of donation executed by the donor. However, cancellation does not apply to the grounds for termination of the gift agreement. We are talking about situations when the gift has already been transferred to the donee and, as a result, the latter has acquired the right of ownership of the donated property or he has become the owner of the corresponding right, i.e. the gift agreement, accompanied by the transfer of property, has already taken place as a legal fact, and the consensual gift agreement (agreement of promise of donation) has terminated due to its proper execution. Therefore, one cannot but agree with the opinion of I.V. Eliseev, who believes that the donor, by canceling the donation, “actually annuls the contract as a fact that entails legal consequences.” Sergeev A.P., Tolstoy Yu.K. "Civil Law": Textbook. M.: Prospekt, 2012.

Taking into account the exclusivity of this institution, the Civil Code of the Russian Federation in Art. 578 provided for the grounds for canceling the donation in the form of a closed list.

Cancellation of a donation is possible in the following four cases:

1. if the donee made an attempt on his life, the life of one of his family members or close relatives, or intentionally caused bodily harm to the donor;

2. if the donee’s handling of the donated item, which represents great non-property value for the donor, creates the threat of its irretrievable loss;

3. the court may cancel a donation made by an individual entrepreneur or a legal entity in violation of the provisions of the law on insolvency (bankruptcy) at the expense of funds related to his business activities within 6 months preceding the declaration of such a person as insolvent (bankrupt);

4. The gift agreement may stipulate the donor’s right to cancel the donation if he survives the donee.

An analysis of law enforcement practice shows that very often counterparties to a residential property donation agreement pursue goals that do not arise from its nature.

Thus, one of the most common cases encountered in the practice of concluding a donation agreement for residential premises is challenging the concluded transaction on the grounds provided for in Article 178 of the Civil Code of the Russian Federation, that is, due to the conclusion of a donation agreement for residential premises under the influence of misconceptions regarding the nature of the transaction. Karpukhin D. “Agreement donation of residential premises: analysis of law enforcement aspects of the problem" // Housing Law. 2012. N 10.- 13 p.

The donor, concluding a contract for the donation of residential premises, mistakenly believes that the recipient is obliged to perform certain property and personal actions in favor of the donor for the residential premises transferred free of charge to him. Otherwise, in the opinion of the donor, the gift agreement may be declared invalid.

This case was considered in the appeal Ruling of the St. Petersburg City Court dated April 4, 2012 N 33-4656Appellate Ruling of the St. Petersburg City Court dated April 4, 2012 N 33-4656 // Legal system Consultant plus.. By the decision of the appellate instance to the plaintiff the request to overturn the decision of the court of first instance was denied.

The plaintiff (donor) challenged the validity of the transaction he concluded - the agreement for the donation of residential premises - on the grounds of Article 178 of the Civil Code of the Russian Federation. From the circumstances of the case, it followed that the conclusion of the agreement for the donation of residential premises was preceded by an oral agreement between the plaintiff and the defendant that the defendant would marry the plaintiff, undertake to pay utility bills for the apartment, make complete repairs in it, and would also help him financially on a monthly basis.

Subsequently, the defendant avoided fulfilling the promises given to him, and therefore the plaintiff went to court.

The cassation court noted that in accordance with paragraph 1 of Art. 178 of the Civil Code of the Russian Federation, a transaction made under the influence of a misconception of significant significance may be declared invalid by the court at the claim of the party acting under the influence of the misconception. Of significant importance is the misconception regarding the nature of the transaction or identity or such qualities of its subject matter that significantly reduce the possibility of its use for its intended purpose. The misconception regarding the motives for the transaction is not significant.

From these arguments of the plaintiff it follows that he did not assume that the defendant would be able to perform actions involving the exercise of her property rights, whereas, by transferring the apartment under the disputed gift agreement into ownership of the defendant, the plaintiff could not but know that he was transferring ownership rights to her.

The cassation instance indicated that the consistent nature of the plaintiff’s actions, expressed in the fact that he personally entered into a donation agreement for residential premises with the defendant, took part in registration actions, issued a power of attorney for the defendant to formalize inheritance rights to the disputed apartment, as well as a power of attorney for a third party for the right to conclude a donation agreement for an apartment belonging to him, which were certified in the prescribed manner by a notary, indicates that the plaintiff purposefully took actions with the aim of transferring ownership of the disputed apartment to the defendant under the donation agreement.

The court also indicated that the plaintiff’s arguments that the defendant had not fulfilled the agreement reached between the parties that the defendant would look after him, provide financial assistance and pay utility bills, and make repairs in the apartment, were rightfully recognized by the court of first instance as untenable, since the data the circumstances have no legal significance for the consideration of this dispute and do not relate to the nature of the transaction and its legal consequences. Motives for concluding an agreement by virtue of Art. 178 of the Civil Code of the Russian Federation are not significant.

The given example from the judicial practice of a residential donation agreement shows that the property and personal obligations given by the donee in favor of the donor in pursuance of the specified transaction have no legal force, since the concluded transaction did not impose on the donee any obligations declared by the plaintiff and, especially It is important that such obligations do not arise from the nature of the disputed transaction, which does not give rise to such obligations of the donee to the donor.

Thus, from the circumstances of the case, it can be seen that the gift agreement in this case acted as a sham transaction concluded to cover up the agreement for lifelong maintenance with a dependent. In accordance with Part 2 of Article 170 of the Civil Code of the Russian Federation, a sham transaction, that is, a transaction that was made with the aim of covering up another, is void. To the transaction which the parties actually intended, taking into account its substance, the rules relating to it apply.

Consequently, the plaintiff had to challenge the nullity of the agreement for the donation of residential premises due to the recognition of the specified transaction as sham, that is, on the grounds of Part 2 of Article 170 of the Civil Code of the Russian Federation.

Another problem that arose in the process of analyzing law enforcement practice and related to the conclusion of a gift agreement, in particular residential premises, is the requirement to recognize the gift agreement as an imaginary transaction and to apply the consequences of the invalidity of a void transaction. According to Part 1 of Article 170 of the Civil Code of the Russian Federation, a transaction is considered sham if it is concluded only for show, without the intention of creating legal consequences corresponding to it. Imaginary transactions are recognized as void. As a rule, residential premises are transferred free of charge to the donee in order to avoid foreclosure on the donor’s property for his obligations to creditors.

This case was considered in the cassation Ruling of the St. Petersburg City Court dated No. 33-1707/2012 dated February 7, 2012. Cassation Ruling of the St. Petersburg City Court dated No. 33-1707/2012 dated February 7, 2012 // SPS Consultant Plus.

From the circumstances of the case, it followed that the defendant, on the basis of an agreement on shared participation in investing in the construction of a residential building, an additional agreement on the recalculation of the share contribution, and an apartment acceptance certificate, had been the owner of a one-room apartment since 2007. Under the gift agreement concluded in October 2008, the defendant gave the said apartment as a gift to his sister, for whom ownership of the apartment was registered.

In June 2010, the plaintiffs went to court with demands to recognize the specified donation agreement as an imaginary transaction, citing the fact that it was concluded without the intention of creating legal consequences, in order to evade the defendant from foreclosure on the property belonging to him for his debt obligations to the plaintiffs .

The cassation court did not satisfy the plaintiffs' demands and noted that the court of first instance, on the basis of the evidence presented, correctly concluded that the circumstances indicated by the plaintiffs as grounds for recognizing the gift agreement as an imaginary transaction were not proven, and in this regard, correctly refused to satisfy the stated requirements.

The cassation instance noted that from the case materials it follows that the disputed transaction (in terms of its consequences such as the transfer of ownership of the apartment) was executed in October 2010, when G.S.’s ownership of the disputed apartment was registered, i.e. e. the legal consequences corresponding to the gift agreement have actually occurred. An imaginary transaction in accordance with paragraph 1 of Article 170 of the Civil Code of the Russian Federation creates only the appearance of legal consequences.

The exercise of the powers of the owner by the defendant's sister in relation to the disputed apartment is confirmed by the fact that she paid the tax for this property for 2009 - 2010, the lease agreement she concluded with a third party and the energy supply agreement, the work order for sealing the meter, and the registration of a personal account in the name of the donee.

It is important that the court indicated that the above arguments of the plaintiffs could be significant only if the law provided independent grounds for the invalidity of transactions made by a citizen if he had signs of inability to answer for his obligations to creditors. Provisions on the possibility of challenging debtor transactions that harm the property rights of creditors are provided for in Chapter 3.1. Federal Law “On Insolvency (Bankruptcy)” dated October 26, 2002 N 127-FZ.

However, within the meaning of the provisions of Art. 61.8 and 61.9 of this Law, challenging the debtor’s transactions is carried out within the framework of the debtor’s bankruptcy case, and the corresponding application can be submitted to the arbitration court by an external or bankruptcy trustee on behalf of the debtor on his own initiative or by decision of a meeting of creditors.

At the same time, the provisions of Chapter 10 of the same Law on bankruptcy of a citizen who is not an individual entrepreneur are currently not in effect, since paragraph 2 of Article 231 of the Law provides for their entry into force from the date of entry into force of the Federal Law on introducing relevant amendments and additions to the federal laws.

The cassation instance noted that at present, in relation to citizens who are not individual entrepreneurs, the law does not provide for grounds for the invalidity of transactions related to causing damage to the property interests of creditors, and the procedure for challenging such transactions, and, consequently, challenging them is possible only on the basis of general norms of the Civil Code of the Russian Federation. The basis for the invalidity of the transaction, which the plaintiffs relied on, is absent in this case.

The court noted that at the time of the conclusion of the gift agreement dated October 16, 2008, there were no court orders to collect from the defendant in favor of the plaintiffs the debt under the loan agreements, in pursuance of which the property belonging to the defendant could be seized.

The cassation court upheld the decision of the court of first instance to recognize the agreement for the donation of residential premises as an imaginary transaction.

Thus, judicial practice on challenging a gift agreement can be divided into two groups: termination of a gift agreement and invalidation of a gift agreement. The general rules for declaring transactions invalid (Articles 168 - 179 of the Civil Code of the Russian Federation) are also applicable to a gift agreement.

Lawsuits to terminate a gift agreement or invalidate it are quite common. Often, the basis for recognizing an apartment donation agreement as invalid is both a transaction made under the influence of delusion, deception, threat, and a transaction under Article 177 of the Civil Code of the Russian Federation, made by a person, although legally competent, who was at the time of drawing up the will in a state where he could not understand the meaning of your actions or guide them.

Another risk is associated with the concept of a sham transaction, when a real estate donation agreement covers up a purchase and sale agreement. This option for purchasing real estate is common. This option is illegal, donation is a gratuitous transaction, and if there is a counter-transfer of a thing or right or a counter-obligation, the contract is not recognized as a donation. When proving the sham of a transaction, judicial practice on issues of donation has an unambiguous position: the gift agreement is recognized as invalid and the consequences of the invalidity of the transaction are applied. Such disputes are resolved by the court in a general manner upon the application of any interested person.

In order to cancel a gift agreement, it is necessary to collect evidence (eyewitness testimony, medical certificates, extracts and other documents), take into account the statute of limitations and correctly draw up a statement of claim.

The Civil Code of the Russian Federation regulates a list of conditions under which a gift agreement can be canceled. The grounds for canceling the deed of gift are reflected in Article 578 of the Civil Code of the Russian Federation.

The legislation of the Russian Federation establishes the following grounds for cancellation:

• the recipient of the gift made an attempt on the life of the donor (as well as his close relatives) or intentionally caused him bodily harm;
• the donee, with direct intent, deprived the donor of his life;
• the recipient's handling of the gift creates a threat of its loss (in this case, the gifted item must have non-property value for the donor);
• if an entrepreneur or legal entity makes a deed of gift within six months that preceded his declaration of bankruptcy;
• The gift agreement stipulates the right of the donor to cancel the deed of gift if he outlives the recipient of the gift.

An attempt on life can be expressed in the form of causing grievous harm to the health of the donor or his relatives, or in organizing such an attack, which was prevented in a timely manner. Such actions must be committed intentionally, as a rule, with direct intent (that is, the recipient foresaw and desired the occurrence of socially dangerous consequences).

Civil legislation does not establish the presence of a court decision confirming the fact of causing harm to the donor as a basis for canceling the deed of gift. But, nevertheless, the fact that the recipient of the gift committed illegal actions must be confirmed by a court verdict that has entered into legal force.

A deed of gift may be declared invalid by the court (at the request of the plaintiff) if it was made under the threat of violence, violence, or deception.

Vitaly Safonov owned a garage, which he inherited from his grandmother. He was a lonely man, living alone in an apartment building. Living next door to him was Gena Ivanov, who had recently been released from prison for committing the murder of his partner. From neighbors, Gena learned that Vitaly owns an expensive brick garage, and in his opinion, he must have money.

One day Gena decided to go visit a neighbor, he took a kitchen knife with him. Having come to a neighbor under the guise of a conversation, he began to threaten him with a knife and demand money. However, Vitaly had no money; he spent everything on furnishing the inherited garage. Vitaly was seriously scared, since he had known Gena for a long time; he had a violent character and could beat or even kill a person in a fit of anger. Vitaly offered to donate the garage to Gena so that he would not take his life, the latter agreed.

A gift agreement was immediately drawn up and signed, according to which Vitaly gave Gena his garage, and all the documents were transferred to the new owner, after which Gena, having calmed down, left, satisfied with his purchase. The next day, Vitaly contacted the police with a statement against Gennady, and he also filed a statement of claim in court to declare the deed of gift invalid, since it was made under the threat of violence. The court satisfied Vitaly’s claims and the deal was declared invalid.

Procedure for canceling a donation

In order to cancel the deed of gift, the donor must file a statement of claim in court. It must be supported by objective, substantiated evidence.

Statement of claim for cancellation of donation

A statement of claim is a written document reflecting the plaintiff’s claims and their justification, which is filed in court. The claim is prepared and filed by the plaintiff or his authorized representative.

Requirements for the form and content of the statement of claim, including the cancellation of the donation, are contained in Art. 131 Code of Civil Procedure of the Russian Federation.

In the statement of claim to cancel the donation, you must indicate:

• the name of the court to which the application is sent;
• data of the plaintiff, defendant;
• clearly and competently state the circumstances of the conclusion of the agreement, the grounds for canceling the deed of gift;
• information on compliance with pre-trial conflict resolution procedures;
• list of attached documents (copy of the gift agreement; a verdict that has entered into legal force or other documents confirming the recipient’s improper behavior or handling of the gift; documents confirming compliance with the pre-trial procedure for resolving the dispute; receipt for payment of the state fee);

In the application, it is advisable to indicate a mobile phone number and an email address for contacting the plaintiff or his representative (principal). At the end of the document, the plaintiff (his representative) signs it with his own hand. The statement of claim must be submitted in several copies, the number of which must correspond to the number of persons participating in the trial. After a statement of claim is received by the court, the judge accepts it into his proceedings within 5 days and initiates a civil case by issuing a ruling.

The judge may refuse to accept the application if it is not subject to consideration in civil proceedings, or such a claim has already been resolved by the court or there is a decision of an arbitrator on this claim). The court has the right to return the claim to the plaintiff if the procedure for pre-trial settlement of the conflict has not been followed, the plaintiff is incompetent, jurisdiction has not been respected, or the signature of the plaintiff or his representative is missing. Also, a refund occurs if the plaintiff withdraws his application before a decision is made on the judge’s acceptance of the case for proceedings.

A deed of gift may be declared invalid by a court (at the request of the plaintiff) if it was made under the threat of violence, violence, or deception.

Limitation period for cancellation of donation

According to Article 195 of the Civil Code of the Russian Federation, the limitation period is recognized time limit for defending a claim person whose rights have been violated. That is, the period during which a person can go to court to protect his violated rights.

The limitation period depends on the basis of the claim itself:

• for a voidable transaction - 1 year (the period begins from the moment when the plaintiff learned or should have learned about facts that could serve to invalidate the transaction);
• for an insignificant one - 3 years (the period is counted from the date of signing the deed of gift);

Even if one of the parties (or an interested party) missed the deadline during which it can file a claim to invalidate the gift agreement, it still has the right to file such a claim.

The judge cannot refuse to consider the claim on this basis. The statute of limitations is applied by the judge only if the defendant files a corresponding application before the court makes a decision on the claim. Such a statement will be the basis for the judge to make a decision to reject the plaintiff’s claims.

The limitation period for a gift agreement may be suspended in the following cases:

• if the claim was not filed due to extraordinary, special circumstances;
• if the donor or recipient is serving in the Armed Forces of the Russian Federation (and martial law has been introduced);
• if a moratorium (ban) on the fulfillment of obligations is established;
• if Part 2 of the Civil Code of the Russian Federation is suspended.

Judicial practice on cancellation of donation

The practice of canceling a deed of gift is different, especially many questions arise when, when making a gift:

• the opinion of the donor's spouse is not taken into account. Such an agreement can be challenged, but it will be difficult to prove that the property was acquired during the marriage or that there is any contribution from the other spouse to the maintenance of this property;
• The plaintiff asks to cancel the deed of gift, since the donor was not aware of his actions at the time of the transaction. This is a difficult basis in terms of proof, especially if the donor is not registered with a psychiatrist or narcologist. In this case, a psychiatric forensic examination can be carried out, but experts will not be able to answer 100% what the state of the donor was at the time of the transaction; the answer will be speculative. Successful evidence in the described case will be extracts from medical documents, eyewitness accounts, video or audio recordings. In most cases, if the donor has an active position in court and actively defends his rights, then the court takes his side;
• a deed of gift is recognized as a void transaction on the basis of covering another transaction (for example, a purchase and sale). As evidence, in this case, as a rule, the explanations of eyewitnesses are used, who can confirm the fact of the transfer of funds, an oral agreement of the parties to carry out a sham transaction;
• if the grounds for canceling the transaction are the commission of a crime against the donor, then the court will cancel such an agreement without any problems. The evidence in this case is: a court verdict that has entered into legal force, a decision to initiate a criminal case against the donee and bringing him in as an accused.

Cancellation of donation of an apartment

Before concluding an apartment donation agreement, the donor must be aware that the deed of gift cannot be changed or rewritten. Cancellation of a donated apartment is possible by mutual agreement of the parties (donor and donee). But the recipient rarely agrees to cancel the deed of gift, since it is not in his interests to abandon the received property. Therefore, if the donor requires the return of his gift in court, then in this case he will need to provide the court with legally valid grounds for canceling the deed of gift.

The grounds for canceling a donation in court are as follows:

• donee treats donated real estate inappropriately(and this can lead or has led to damage and destruction of the apartment). As a rule, in this case, the plaintiff is the donor, who must provide the court with evidence of such negligence towards the donated apartment;
• the donor is incapacitated. This may be confirmed by a court decision;
• The apartment donation agreement was not drawn up legally correctly. For example, if the deed of gift includes a clause according to which the real estate will become the property of the gift recipient only after the death of the donor. Such a contract can be challenged both before and after the death of the donor;
• death of the donee (if this condition is specified in the apartment donation agreement).

It is also possible to challenge the apartment donation agreement in court:

• if the written, notarized consent of the donor’s spouse is not attached (only if the donated apartment is jointly acquired property in marriage);
• if pressure was put on the donor and in connection with this he signed the deed of gift without his own desire;
• if the recipient is a civil servant (by law he is prohibited from accepting valuable gifts);
• if the donor is an incapacitated or minor citizen;
• if the deed of gift covers other legal relations;
• if the donor's signature is forged in the gift agreement.

After the evidence has been collected, it is necessary to file a statement of claim in court. It is advisable to entrust its writing to a qualified lawyer. He will help you draft a document correctly, while evaluating all the collected evidence.

Consequences of cancellation of donation

Speaking about the cancellation of the deed of gift, one cannot fail to mention the consequences of such a step. The Civil Code of the Russian Federation obliges the recipient of the gift to return the item to the donor if it was preserved in kind when the cancellation began. In the event of the death of the donor, the donee will be obliged return the gift to the heirs of the person who gave the gift.

Thus, in case of cancellation of the donation, there are two options for the development of events:

• if the gift was transferred to the recipient and kept in kind, then it is subject to a full return to the donor, in which case the recipient of the gift will suffer negative consequences;
• if the donee gets rid of the gift in a timely manner, then he can try to avoid any losses for himself, which is not very fair. Therefore, in situations where a gift is lost, it is necessary to demand financial compensation.

Thus, we can conclude that if the recipient does not have the opportunity to return the donated item in kind, then he is obliged to compensate the donor for the real cost of the gift.

Conclusion

The list of grounds for canceling a gift agreement, reflected in Russian legislation, namely in Part 2 of the Civil Code of the Russian Federation, is exhaustive, that is, the plaintiff cannot come up with any of his own grounds and refer to them in court.

In the event that the basis for canceling the deed of gift is the infliction of bodily injury to the donor, then the nature, location and degree of injury is not at all important. Here direct or indirect intent plays the main role. Crimes committed through negligence are not grounds for cancellation of a gift agreement.

Cancellation of a gift agreement: judicial practice

Donation is one of the ways to control the fate of an apartment. With the abolition of income tax on gifts between close relatives, this method of transferring property has become widespread. But, as judicial practice shows, with the increase in the number of such transactions, there have also been noticeably more requests to cancel the apartment donation agreement.

Gift or bequeath?

When transferring an apartment to relatives, as a rule, the choice is between two transactions: donation and will. Although both of them involve the transfer of ownership of real estate, the choice of one of them depends on various circumstances, primarily the preferences of the parties to the relationship.

From the point of view of someone who is going to transfer the property, a will is the best option. And that's why:

• firstly, the transfer of rights to the apartment to the new owners will pass only after death, and even then not immediately (the fact of acceptance of the inheritance and its actual receipt are separated by six months);
• secondly, there is always the opportunity to change or cancel your decision simply at will, and termination of a gift agreement is possible only on the basis of law;
• thirdly, by not disclosing the contents of the will, conflicts with potential heirs can be avoided.

But from the perspective of those who ultimately receive the apartment, these advantages are, on the contrary, disadvantages. A gift agreement is more beneficial for them, since it eliminates uncertainty in the fate of real estate, even if the transfer of rights is only promised in the future (Part 2 of Article 572 of the Civil Code of the Russian Federation). Yes, and canceling a gift, unlike a will, is much more difficult. As evidenced by the accumulated judicial practice in inheritance cases.

Advice: Before choosing a way to dispose of your real estate, it is worth getting specialist advice about all the possible consequences of such a step.

Grounds for cancellation of donation

A donation, even made to a close relative, can be canceled at the initiative of the donor or his heirs. The grounds for this are listed in Article 578 of the Civil Code of the Russian Federation. Termination of an apartment donation agreement is possible if:

• the donee made a deliberate attempt on the life of the donor himself or his relatives (in the event that the attempt was successful and the donor is no longer alive, this right is exercised by his heirs);
• the recipient treats the gift in such a way that it threatens the loss of an item that is of great intangible value to the donor.

A non-donation clause may be included in the contract itself. According to this condition, if the donor survives the donee, he has the right to demand that the heirs return the gift. Of course, if the donee has not transferred his right to someone else during his lifetime, for example, through concluding an agreement for the sale and purchase of an apartment.

Another case when cancellation of a donation is possible is the declaration of insolvency (bankruptcy) of a legal entity or individual entrepreneur. In the case where the gift was made not from personal funds, but from property used for commercial purposes. If this happened within six months before declaring bankruptcy, then interested parties can initiate termination of the apartment donation agreement.

Refusal to fulfill a contract is somewhat different from cancellation of a gift. If it provided for the transfer of an apartment in the future (but during the life of the donor), then under certain conditions it may not be fulfilled. These include a change in the property status of the donor, who by transferring the gift will significantly reduce his standard of living.

The issue of termination of an apartment donation agreement is resolved exclusively in court. An analysis of judicial practice in cases of cancellation of donations shows that most often their initiator is the donor himself. To do this, he files a claim and then presents the court with evidence of his point of view.

Recognition of the donee as unworthy

Most often, in the practice of considering court cases on the termination of a gift agreement, there are cases when a relative who is about to receive an apartment as a gift, either to speed up this event or to eliminate competitors, decides to take illegal actions. Moreover, he commits them deliberately, that is, fully aware of the severity of the consequences.

These may include actions committed in relation to both the donor himself and his relatives:

• deprivation of life;
• causing bodily harm;
• attempt on life and health.

The fact of such actions, as well as the presence of intent (direct or indirect) in them, must be subject to either a verdict or a court decision in a civil case that has entered into legal force. Before this, cancellation of the donation on this basis is impossible. Termination of a contract does not relieve one from the obligation to compensate the donor or his heirs for material damage and moral harm.

Advice: In order not to act first as a victim in a criminal case, and then as a plaintiff in a civil case, before making a gift, you should make sure that the donee will not take illegal actions against the donor.

The second case, when, in the opinion of the donor, the relative who received the apartment is treating it improperly, requires the presentation of a large amount of evidence by both parties. Since we are talking about intangible value, each party will have their own assessment of the actions performed.

The burden of proof in this situation lies with the donor. And the court will have to clarify at least two points:

• that the gift really has a certain value for the one who gave it, and the recipient knows about it and this imposes on him the obligation of careful treatment;
• that the actions of the person receiving the gift lead to the destruction of the apartment or its use for other purposes.

Invalidation of donation

What is cancellation of donation of an apartment?

A real estate donation agreement allows you to transfer property to a specific person free of charge. Such documentation differs significantly from a will in that it comes into force during the lifetime of the current owner. It is worth noting that if there are legal grounds, the agreement can be canceled.

Cancellation of the donation of an apartment can be carried out at the initiative of various categories of persons, starting with the current owner, his relatives or recipient and ending with government authorities. In each specific case, the collection of accompanying documents is required to prove that the grounds for canceling the agreement are legal.

To understand the key features of this procedure, interested parties should refer to the list of available methods, existing grounds for termination of the contract, the reasons, as well as judicial practice on resolving relevant disputes.

Available methods

The contract can be canceled within 3 years from the date of direct donation of the premises. As for the owner, he can terminate the agreement within 5 years, if it is proven that the new owner of the apartment has previously committed illegal actions. The method of canceling the contract directly depends on who initiates the termination.

The donor can cancel the executed agreement and regain the legal right to the property in a pre-trial manner. The death of the recipient, or at least the presence of a clause of such an outcome in a written agreement, provides grounds for the return of the property. To carry out this operation, the interested person must present to the authorized authorities the death certificate of the recipient and the contract.

When canceling an agreement in court, it is necessary to file a statement of claim with the territorial higher authorities with a request to terminate the agreement.

It is also important to attach the following documents to the application:

• original and copy of the existing agreement;
• documents confirming the act of invalidity;
• a receipt confirming payment of the state fee in full.

As for the recipient, cancellation of the donation of an apartment can be carried out at his request. This operation must be carried out before registering the ownership of the new owner. This is due to the fact that to complete the procedure, only notarization of the refusal will be sufficient.

In cases where the refusal is carried out after the direct registration of rights, the corresponding application is submitted to the territorial branch of the BTI.

Close relatives, if they are the legal heirs of the property, can challenge the concluded agreement between the parties in court. In this case, it is enough to prove the presence of at least one controversial basis.

The agreement can be canceled at the request of government authorities or the prosecutor's office, and the document can also be canceled at the initiative of the guardianship and trusteeship authorities if a violation of the rights of minor citizens is discovered

Grounds for termination

The grounds for cancellation of the agreement are regulated by the current Civil Code of the Russian Federation, or more precisely, Article 578.

They are as follows:

• if the person accepting the property as a gift or his close relative intentionally causes physical damage and collateral damage to the health or life of the current owner;
• if the recipient treats the received object inappropriately;
• if the contract contains a provision that it may be invalidated if the donor of the object lives longer than the recipient;
• if the transfer of property was carried out by individual entrepreneurs or legal entities in violation of bankruptcy laws.

Judicial practice establishes that a contract may be declared invalid if:

• the signature of one of the parties was forged;
• one of the parties was misled to a certain extent;
• the party took steps to conclude an agreement in the event of fraud or threat to life.

In each specific case, the new owner of the premises must return the real estate to the old owner if it was still there at the time of termination of the agreement. If the apartment has already been sold, then its return becomes impossible. The deed of gift may also be canceled in the event of complete constructive loss of the object.

As for general legislative grounds, a transaction can be canceled in the following cases:

• non-compliance of the performed operation with the provisions of the current legislation;
• lack of intentions of the parties to the agreement to create favorable legal conditions;
• concealment of a similar agreement previously concluded with another interested party;
• the transaction was completed by a minor and without the participation of his legal representatives;
• completion of a transaction when one party is misled regarding the real nature of the procedure.

Reasons for canceling the donation of an apartment

General points

The new owner of the premises assumes legal rights immediately after the immediate execution of the relevant documentation.

Cancellation of a transaction can be carried out upon its execution if the following grounds are discovered:

• the receiving person wanted to harm the health and life of the current owner;
• the property may be destroyed as a result of illegal actions of the recipient;
• the donor is declared bankrupt 6 months after the transaction;
• the recipient dies - the agreement can be canceled in this case only if there is a corresponding provision in the contract.

It is worth noting that a minor child can also participate in the cancellation of the transaction, but only if approved by representatives of regulatory authorities and legal guardians.

Drawing up a dacha donation agreement between relatives on the transfer of rights to a dacha plot is carried out on the basis of the norms of the Civil Code of the Russian Federation. Unlike a purchase and sale agreement, it has a gratuitous basis.

A sample land donation agreement can be found here.

In life

The contract may be terminated during the lifetime of the person accepting the property as a gift in the following cases:

• if the property status of the former owner of the property has changed dramatically - due to bankruptcy or loss of work;
• if the marital status of the donor has changed;
• if social status has changed.

It is worth noting that based on these factors, the transaction can be canceled even pre-trial. However, it is important to take into account that the other party to the contract may not agree with these circumstances and file a claim with the higher courts.

Among other things, the agreement can be canceled by mutual consent of the parties.

The contract may also be terminated in cases where its current provisions do not comply with the norms of current federal legislation.

Return what was given

The donor, under certain circumstances, can terminate the contract unilaterally. To do this, the owner may not even go to court, but resolve the problem amicably with the other party.

One of the key grounds for the return of property is the health status of the former owner, for example, upon the onset of disability.

Violation of deadlines

In accordance with Article 195 of the current Civil Code, the limitation period may be recognized as the period allotted for the protection of the interests of certain persons whose rights were previously violated. It is worth noting that when concluding an agreement on the transfer of property as a gift, this period cannot be changed in the future.

This period directly depends on the grounds of the claim itself. For contested transactions it is 1 year. The countdown of the period begins from the moment when the plaintiff learned about the circumstances that automatically make the contract invalid.

For void transactions, a time limit of 3 years, which is counted from the moment of signing the relevant agreement.

Important: if one of the parties to the contract has missed the statute of limitations, then it can still file an application for recognition of the invalidity of the contract.

Action instructions

The algorithm of actions within the framework of the corresponding operation is as follows:

1. If the person accepting the gift made an attempt on the life and health of the previous owner, then the actual heirs may demand the cancellation of the agreement on the real estate property. After this, the immediate eviction of the persons occupying the premises occurs on legal grounds.
2. If the receiving person was inattentive in handling the premises entrusted to him, then in order to cancel the deed of gift, the interested party must apply to the highest court authorities at the actual location of the apartment.
3. An agreement may automatically lose its legal force if the agreement of the parties provides for the existence of a rule regarding the premature death of the recipient. If the document does not provide for such a provision, then the property will be transferred by inheritance.
4. Termination of the contract can be carried out if the health or property status of the former owner of the premises worsens. The donor may also receive back a certain share of the apartment upon concluding an additional agreement.
5. The donor can demand compensation from the person for actual damages if the gift is ultimately not accepted.

Arbitrage practice

Current legislation provides for the possibility of invalidating a transaction involving the transfer of property as a gift.

To cancel the deed of gift, the interested party must have compelling reasons, which are as follows:

• registration of the deed of gift was not carried out in accordance with the established procedure and without reflecting changes in the state register - if within 12 months from the date of conclusion of the contract, the receiving party has not registered the ownership, then the contract automatically becomes invalid;
• the person receiving the gift treats the property inappropriately, which leads to complete structural destruction - the fact of destruction within these limits can only be proven in court;
• The legislation provides for situations where termination of the agreement can be carried out if the donor’s position sharply worsens and this can happen for reasons beyond the control of the person - to terminate the transaction, the interested person must apply to the court with a request to cancel the document on the basis of a prepared package of accompanying papers.

Is it possible to draw up a gift agreement without an act of acceptance of the transfer? You can read here.

Find out how the Civil Code regulates the gift agreement by following this link.

Is it possible to revoke a deed of gift for an apartment and cancel the deed of gift?

To transfer ownership of real estate to another owner, the donor must enter into a gift agreement. In judicial practice, there are quite often cases of fraud against the previous owner of an apartment, when an agreement can be concluded against his will.

For example, unscrupulous citizens take advantage of the helplessness of the apartment owner, who, due to his advanced age or as a result of alcohol abuse, is not able to adequately respond to fraudulent actions aimed at taking possession of his property. For a number of circumstances, the donor has the right to cancel his decision and revoke the previously signed deed of gift.

Is it possible to revoke a deed of gift for an apartment?

The process of transferring real estate under a gift deed from one person to another is carried out free of charge, and this fact must be stated in the relevant document. If the owner of the apartment has decided to conclude a deal and transfer ownership of his apartment to another person, none of his immediate relatives can claim rights to this property.

It is also important to understand that a deed of gift provides certain benefits to either spouse in the event of a divorce. If the apartment was previously gifted to one of them, then during a divorce the other cannot claim part of it. Also, preferential tax conditions are provided for the donor's relatives. Thus, the interest rate for them will be 0%, while other persons will pay 13%.

If a gift agreement is concluded between the owner of an apartment and another citizen, the latter can begin to use it immediately after signing the documents. Please note that if a will is drawn up in which the property is transferred into the ownership of another person, he will become its owner only after the death of the testator.

Revocation of a deed of gift is a rather complex procedure, since it requires compelling reasons to invalidate the concluded agreement. In addition, it will be necessary to find violations that were committed during the registration and execution of the agreement between the parties. According to Art. 578 of the Civil Code of the Russian Federation there are a number of objective circumstances that may serve as grounds for canceling the deed of gift.

There are two types of apartment donation agreements. In the first case, this is a document confirming the instantaneous fact of the gratuitous transfer of real estate from its owner to the donee. In the other, there is an agreement that specifies a condition obliging the donor to transfer ownership of the apartment to the recipient after the period specified in the agreement.

The donor has the right to cancel the deed of gift before the contract comes into force and not to transfer his apartment as a gift to another person, and there is no need to apply to the judicial authorities. However, the donee can file a statement of claim to demand that the court fulfill its obligations under the gift agreement. If during the trial the legality of the grounds for refusal is proven, the court will make a decision in favor of the owner of the real estate.

Grounds for cancellation of a gift agreement

Let's look at the grounds that allow you to cancel a deed of gift for an apartment. This often happens when the former owner of the property, due to a number of circumstances, wants to revoke the deed of gift. The contract can be canceled during the life of the donor in the following cases:

• deterioration of the financial situation and standard of living of the donor;
• violation of the health status of the property owner;
• when the donee attempts to inflict grievous bodily harm on the donor or members of his family;
• the donee committed the murder of the donor or his relatives;
• the agreement is not registered with the Federal Socialist Republic;
• the presence in the agreement of a clause on the entry into force of the contract only after the death of the former owner of the real estate;
• the apartment suffered material damage due to negligence or one’s own fault.

If the donor was driven to a state of insanity at the time of signing the donation agreement by third parties with the help of alcohol, drugs and other drugs in order to seize his property illegally, this fact is a good reason for declaring the transaction invalid. However, the insanity of the property owner must be proven immediately after signing the deed of gift, otherwise, after time has passed, it will be impossible to prove fraudulent actions against him.

In order for the deed of gift to become legally valid after signing, during its execution you will need a notarized document stating that the existing co-owner of the property (if there is one in jointly acquired property) is not against transferring the apartment to another owner. If it turns out that false documents were presented to complete the transaction for a number of reasons, terminating the gift agreement will not be difficult. In the event of the death of the donee, the owner of the apartment will also be able to quickly revoke the deed of gift.

Important: Quite often there are cases in which, at the legal level, a gift agreement will be declared invalid. This can happen if the individual donor is the guardian of a minor and represents his interests. Employees of guardianship authorities, educational and medical institutions cannot legally donate apartments and other real estate to persons who are legal members of these organizations. The same applies to persons serving in state and municipal institutions, who are “given” real estate as a thank you for the provision of services and in other cases.

Cancellation of a gift agreement

Since the agreement is legally signed by the donor and the donee, the cancellation of the gift agreement can only be valid by mutual consent of both parties. It is important to know that it is easiest to cancel a deed of gift if the owner of the property has not donated his property. In practice, the recipient very rarely agrees to voluntarily return the donated property (and, as a rule, all controversial issues are resolved in court).

Voluntarily

The donor has the right to cancel the donation if the donee voluntarily refuses the terms of the agreement. To do this, you need to try to persuade the person, and also draw up a reverse agreement, securing it with signatures. If the donee does not renounce ownership rights, the donor will be able to revoke the agreement only in court.

In this case, it is possible to consider several grounds for terminating the contract: if the donee attempted to kill or injure the donor; if the financial situation of the property owner has worsened as a result of donating his property; if the donee caused damage to the apartment of the former owner. As a rule, these grounds are sufficient to revoke a deed of gift for a house or other real estate and recognize the donor’s claim as legal.

According to Art. 573 of the Civil Code of the Russian Federation, citizens have the right to refuse a gift in the form of an apartment and other real estate at their own request. This can be done before executing the gift agreement and registering it. It is enough to register the fact of non-acceptance with a notary, after which the agreement will be considered invalid.

Important: by law, a person who does not want to accept an apartment, house or other real estate as a gift is not required to explain the reason for the refusal. If for any reason the rejection of the donation occurs after the registration of the agreement, then the notarized rejection must also be recorded in the register.

Through the court

It is known that only judicial authorities have the right to annul a gift agreement. As for presenting the grounds for its termination, this can be done by the prosecutor's office or the investigation. They have the right to go to court at the request of the donor in the following cases:

• establishing the fact of fraudulent actions in order to hide data from the tax system;
• if a legal entity, being in the status of bankrupt (during investigative measures), issued a deed of gift for the property and transferred ownership rights to another person, fearing confiscation of this property;
• when the rights of minor citizens are violated, as a result of which they could be left without housing as a result of the unlawful signing of a deed of gift.

If the court, during the proceedings, recognizes the gift agreement as annulled and makes a corresponding decision, the donor’s real estate (apartment or house) will again return to his ownership.

Cost and terms of deed of gift cancellation

When drawing up a real estate donation agreement, a mandatory state duty is provided. Its size today is 2,000 rubles (as well as 13% income tax). In this case, all costs of paying the duty are borne by the recipient. If the gift of real estate is made to close relatives (parents, spouses, siblings, grandchildren, children), the contract is executed without paying tax. In all other cases it is mandatory.

When registering an agreement with a notary, you will also have to pay 500 rubles for applying to the Registration Chamber. If the value of real estate exceeds 1 million rubles, you will have to pay 0.75% of its price + 10 thousand rubles. If the cost of real estate is over 10 million rubles, you need to pay 0.5% of the price + 75 thousand rubles.

Important: When registering the cancellation of a contractual agreement, the notary will have to pay 2 thousand rubles.

As for the terms for canceling the gift agreement, they are 3 calendar years from the date of signing the document. If more than the specified period has passed, the deed of gift for real estate cannot be canceled. If the donee does not want to accept property as a gift or has intentionally caused harm to the health of the donor, the time to challenge the validity of the contract may be extended to 5 years.

Cancellation of an apartment donation agreement - judicial practice

As judicial practice shows, most claims are filed by an interested party without any grounds for canceling a gift agreement for real estate.

If the donor provides the necessary evidence that will serve as a basis for canceling the agreement, the judicial authorities will issue a corresponding decision. To protect their rights, the donor must carefully consider the execution of the deed of gift, and, if necessary, provide sufficient evidence and relevant documents.

FAQ

Let's look at frequently asked questions on the topic.

Yes, it's possible. The answer to this question is covered above in the article.

Is it possible to cancel a deed of gift after registering property rights?

The deed of gift can be canceled in court within the established period after registration of property rights if there are compelling reasons for this.

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Let us note that before signing the agreement, it would be a good idea for the donor to consult with a lawyer who can talk about possible risks, the correct drafting of the agreement and the extent of responsibility between both parties. It should be remembered that cancellation of a deed of gift is possible only in cases where the owner of the property presents compelling reasons for this.

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Cancellation of a gift agreement: is it possible to cancel a deed of gift for an apartment during the life of the donor?

Legal relations related to the donation of an apartment provide for various ways to cancel such transactions. Such conditions are provided for by current legislation, therefore participants in these transactions should be aware of the existing possibilities for canceling the deed of gift.

What does the termination of a deed of gift for an apartment entail?

An apartment is an object of real estate, therefore all transactions on the transfer of ownership of it are clearly regulated by the Civil Code in Russia.

A deed of gift (donation agreement) is one of the forms of transfer of ownership of such a piece of real estate from one person to another. But it differs from other agreements in that such a transfer of rights is free of charge, unlike, for example, the purchase of an apartment. When buying and selling, one party (the seller) receives material compensation for his property from the other party to the transaction (the buyer).

A gift deed is a written agreement between two persons. According to it, one party is obliged to transfer real estate (as a gift), and the second, accordingly, accept the apartment.

Based on such legislative requirements, rules providing for their cancellation and invalidity also apply to these agreements.

Accordingly, the Civil Code says that if a transaction is canceled or invalid, the rights of the parties are restored to the extent that existed before the agreement was signed. In simple terms, the donor gets the apartment back, but the one who received it as a gift is not entitled to anything, since the transaction was initially free of charge.

Conditions for canceling a deal

As stated above, the transfer of apartments as a gratuitous gift is a civil contract that can be canceled or declared illegal. In this regard, the Civil Code provides for two legal ways to cancel a deed of gift:

• the first method is the legal facts directly stated in Article 578 of the Civil Code;
• the second method is the legal actions of the parties who, under the gift agreement, meant other transactions, or took possession of property through deception, physical or moral violence against the donor.

Let's consider the first method.

Article 578 of the Civil Code establishes the following legal facts, the occurrence of which directly entails the cancellation of the gift agreement.

Citizens who are over 18 years of age are recognized as legally capable, and their rights are not limited by the court (mental insanity, guardianship). Temporary mental insanity can occur under the influence of various factors, and is characterized by the fact that it passes after some time, without recognizing the person as incompetent.

These grounds are expressly specified in the law, the occurrence of which entails the automatic cancellation of the deed of gift.

In what cases is a deed of gift contested, providing for the return of an apartment?

If the above grounds for canceling a gift agreement are expressly provided for by current legislation, then the legal norms on the basis of which all transactions, including agreements for donating an apartment, will be invalidated will be given below.

They are characterized by the fact that the parties, or one of the participants in the apartment donation agreement, did not want to perform such actions, or tried to disguise other agreements with the help of them. The law in this case defines such contracts as sham. At the same time, each of them is distinguished into a separate legal fact.

• Imaginary transactions. They are characterized by the fact that the parties who signed the gift agreement do not actually receive any rights and obligations. For example, the donor remains to live in the apartment, pays utilities, and uses the apartment at his own discretion.
• Gift agreements concluded under moral or physical duress. For example, one of the parties, wanting to receive real estate, uses its moral or physical superiority and forces the other party to sign an unfavorable gift agreement against the will of the apartment owner.
• Transactions made fraudulently, or due to the difficult mental or financial situation of the donor. This should include the deliberate actions of the recipient, who fraudulently forces him to give him an apartment, promising something in return, and after signing the contract does not fulfill his obligations.

Or he takes advantage of a situation where a person urgently needs money for treatment, promising to transfer the required amount after registration of the apartment. But, in this case, there is no moral or physical pressure on the donor.

Sham agreements. In this case, the parties actually act as a seller and a buyer, but in order to avoid paying taxes and other obligatory payments, they act as a donor and a recipient.

Is it possible to revoke a gift deed during the life of the donor?

One of the main questions regarding the process of canceling a deed of gift is whether it is possible to cancel a deed of gift for an apartment during the life of the donor. From established legal practice it follows that it is during the life of the donor that this is easiest to do.

This is due to the fact that he will be able to give the necessary explanations in court, and also point to irrefutable evidence. In addition, this process can not be brought to court, but can be resolved voluntarily with the gifted person.

There are two ways to challenge such a transaction when the donor is alive.

1. Voluntary order. It involves sending the parties to the transaction to each other special letters - notifications, which will indicate that the donor, or the one who has become the new owner of the apartment, does not want to fulfill their obligations.

But in order to terminate the agreement in this way, the law requires the occurrence of one or more legal facts specified in Article 578 of the Civil Code. But this does not apply to the case where the donor was deprived of the life of those to whom he transferred his property free of charge.

Judicial order. This process involves drawing up a statement of claim and filing an appeal to the district court on whose territory the disputed property (apartment) is located. In this case, the plaintiff will be the one who donated the apartment, and the defendant will be the one who took it into his ownership.

This method of protecting one’s rights applies not only to the cases specified in Article 578 of the Civil Code, but also when the transaction was fraudulent, feigned or violent. Naturally, if the donor is deprived of life, then the legal heirs will file a claim.

Is it possible to cancel a deed of gift after state registration of property rights?

In order to consider this issue, you need to understand that ownership of any real estate does not begin from the moment of concluding an agreement (in our case, donation), but from the time of special registration.

It means entering information about the ownership of an apartment into a special state register. Only after officials carry out such actions does a new owner appear for the real estate.

Now we will consider the question of the possibility of canceling the deed of gift when the registration of the new owner has occurred. There's nothing wrong with that.

If the transaction was terminated by mutual written consent of the parties, then the agreement is certified by a notary and submitted to the registration service. Its officials check the correctness of such an agreement, the presence of all details, including notarization, after which they make the appropriate changes to the register, and the apartment again belongs to the donor.

If the cancellation of the gift agreement occurred in court, then the original court decision must be brought to the registration service, which has entered into legal force, which must bear a seal, as well as the signature of the judge who made the decision. Officials will immediately re-register the real estate to the new owner.

Procedure for canceling a transaction

In the case of cancellation of a transaction by mutual desire, everything is clear. It is better to immediately contact a notary, who will help you draw up all the documents correctly and monitor the execution of such an agreement. But such cases do not occur often in practice.

If you decide to go to court, it is better to follow the advice of professional lawyers.

In case of challenging a deed of gift, when real estate was taken by fraud, under the influence of physical or moral pressure, you will first need to contact law enforcement agencies, who must give a legal assessment of what happened.

It would be good if a criminal case is initiated and the culprit is sentenced to punishment. This is a strong argument for the court, and it will cancel the deal. But if there is a refusal to initiate a criminal case, then you will have to prove such facts on your own. It is better to do this through medical and psychological examinations of the victim.

When concluding imaginary and feigned transactions, the main evidence base will be documents and witnesses. For example, on the gift side they are not relatives. It is necessary to prove the fact of purchase and sale. For this purpose, certificates confirming the withdrawal of cash from the bank accounts of the person who received the gift and other similar documents are suitable.

If it was not possible to collect all the necessary evidence on your own, then you need to file a petition in court to obtain it from the competent authorities and institutions. It is important to remember that any government body, enterprise, or institution does not have the right to refuse such a legal request.

To prevent real estate from being sold while the claim is being considered, it is necessary to seize it by a court decision, and remove it only after appropriate registration of your rights in the unified state register of real estate.

Only by acting in this way can you expect a positive result.

Let's watch a video on this topic:

The current legislation establishes an exhaustive list of situations that allow you to cancel a deed of gift. This can be done through mutual agreement or by court order.

The article was written based on materials from the sites: darstvennaja.ru, sudebnayapraktika.ru, calculator-ipoteki.ru, passus.ru, myrealproperty.ru.

Do you think you are Russian? Were you born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is wrong.

Are you actually Russian, Ukrainian or Belarusian? But do you think that you are a Jew?

Game? Wrong word. The correct word is “imprinting”.

The newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living creatures with vision.

Newborns in the USSR saw their mother for a minimum of feeding time during the first few days, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. The technique is wild in its essence and effectiveness.

Throughout your childhood, you wondered why you lived surrounded by strangers. The rare Jews on your way could do whatever they wanted with you, because you were drawn to them, and pushed others away. Yes, even now they can.

You cannot fix this - imprinting is one-time and for life. It’s difficult to understand; the instinct took shape when you were still very far from being able to formulate it. From that moment, no words or details were preserved. Only facial features remained in the depths of memory. Those traits that you consider to be your own.

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System and observer

Let's define a system as an object whose existence is beyond doubt.

An observer of a system is an object that is not part of the system it observes, that is, it determines its existence through factors independent of the system.

The observer, from the point of view of the system, is a source of chaos - both control actions and the consequences of observational measurements that do not have a cause-and-effect relationship with the system.

An internal observer is an object potentially accessible to the system in relation to which inversion of observation and control channels is possible.

An external observer is an object, even potentially unattainable for the system, located beyond the system’s event horizon (spatial and temporal).

Hypothesis No. 1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can occur, for example, with the help of “gravitational radiation” penetrating the universe from all sides from the outside. The cross section of the capture of “gravitational radiation” is proportional to the mass of the object, and the projection of the “shadow” from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of the objects and inversely proportional to the distance between them, which determines the density of the “shadow”.

The capture of “gravitational radiation” by an object increases its chaos and is perceived by us as the passage of time. An object opaque to “gravitational radiation”, the capture cross section of which is larger than its geometric size, looks like a black hole inside the universe.

Hypothesis No. 2. Inner Observer

It is possible that our universe is observing itself. For example, using pairs of quantum entangled particles separated in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, reaching its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means that there is no capture cross section on the trajectories of objects that is large enough to absorb these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

An outside observation of an object approaching the event horizon of a black hole, if the determining factor of time in the universe is an “external observer,” will slow down exactly twice - the shadow of the black hole will block exactly half of the possible trajectories of “gravitational radiation.” If the determining factor is the “internal observer,” then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.

It is also possible that these hypotheses can be combined in one proportion or another.

Invalid transactions In case of violation of the interests or rights of one of the parties to the deed of real estate, it should be declared invalid. With rare exceptions, this procedure occurs through a court decision. Invalid transactions are made in the interests of one of the parties and without taking into account the interests of other participants, who may not even be aware of the infringement of their rights at the time of the procedure. The grounds for invalidating an agreement may vary, but are always related to non-compliance with the provisions of the law. Invalid transactions are:

• insignificant. They are recognized as such regardless of the presence or absence of a court decision. These include an imaginary (feigned) transaction or one made in violation of the law (Article 168, Article 170 of the Civil Code of the Russian Federation);

• voidable. They are recognized as such only by the presence of a court decision.

An error occurred.

After cancellation of the transaction, ownership of the apartment also passes to the donor. You will need to re-register ownership with Rosreestr and obtain new passports for the apartment. Video: How to avoid getting into trouble when donating real estate In the video, a lawyer gives advice on how to legally correctly draw up a donation agreement for an apartment or other real estate.
It is explained which points of the agreement need to be given particularly close attention in order to protect yourself and the transferred property from illegal actions of one of the parties to the transaction, and how to terminate this agreement if the need arises.

Judicial practice on gift agreements

In practice, to challenge a deed of gift for an apartment, it is enough to fulfill at least one of the conditions:

• the transaction has not passed state registration;
• the donor's incapacity has been proven;
• the subject of the document falls under the category of prohibited items - Articles 388, 389, 390 and 391 of the Civil Code of the Russian Federation;
• there are elements of pressure on the donor;
• the apartment is joint property and cannot be the subject of an agreement until approved by all owners.

The rules of inheritance law do not apply if there is a correctly executed gift transaction. Heirs cannot challenge the contents of the document if all the rules of execution are followed and there is no evidence of violation of the law. There is also the possibility of donating a single home.
It is important that at the time of registration of documents there are no minors registered in it.

Judicial practice of challenging a deed of gift for an apartment

It is prohibited to carry out such actions on behalf of minors; civil servants do not have the right to accept gifts if the agreement is signed within the framework of their official powers. Reasons for appeal Disagreement with the fact of donation must be justified. Judicial practice in cases of this type clearly shows the complexity of the procedure and the rather stringent requirements on the part of judges for the evidence base.
Therefore, before starting a challenge, it is necessary to determine the reason for disagreement with the deed of gift. They can be of the following types and can be challenged under the following articles of the Civil Code of the Russian Federation:

• 572. The subject of the transaction or its terms are incorrectly indicated. Often this concerns joint property or an incorrect definition of a gift.
170.


There are signs of sham. With the help of such agreements, they try to deliberately underestimate the financial condition of the donor.

Article 578 of the Civil Code of the Russian Federation. cancellation of donation

The court in a civil claim to revoke a deed of gift does not have the right to decide the issue of guilt of the donee, since these issues fall within the competence of the criminal court. A significant circumstance when canceling an agreement is negligence in handling a gift that is dear to the donor, which can become grounds for termination of the agreement in court if there is evidence. It must be proven that the donee was aware of the value of the donated object for the donor.
When a donor (company, individual entrepreneur) makes a transaction using funds from his official activities, it may be terminated if evidence of his bankruptcy is provided within 6 months, i.e. violations of insolvency law.

Cancellation of donation of real estate

Info

Judicial procedure In court, the deed of gift is declared invalid. Relatives or the donor himself, having realized whether they can cancel the transaction, file a claim to invalidate the apartment donation agreement. The basis can only be one of the reasons specified in the Civil Code, namely in Article 578.

The claim is filed with the court at the place of residence of the recipient (defendant). In addition to the claim, supporting documents, witness statements, court orders, certificates from medical institutions, etc. are attached. At any stage of the hearing of the case, the list of documents can be supplemented.
The applicant also pays the state fee and attaches the corresponding receipt to the claim. During the consideration of the case, a decision is made to return the apartment to the donor or a refusal in writing indicating the reason. The apartment is returned to the recipient in the form in which he received it.

Challenging a gift agreement: judicial practice

Can the district administration or another structure cancel the document? Answer: No. Only the donor in the presence of legal circumstances. Question: The owner of the house gave the property to his youngest son, and a year later decided to add two more children to the document. But the youngest son does not agree. What can be done? Answer: The circumstances of the situation do not correspond to the articles of the law providing for the possibility of canceling the agreement or declaring it invalid.

Important

The consent of the youngest son is required to donate part of the property to other persons. Question: A co-owner of real estate, who has a minor child, wrote a deed of gift for his share in the apartment to his father. Is this legal? Answer: Legal. The right to dispose of property belongs to the owner, moreover, it is not jointly acquired property.

Children cannot claim the property of their parents (during their lifetime).
Legislation of the Russian Federation Civil Code of the Russian Federation (Civil Code of the Russian Federation) Part two Section IV. Certain types of obligations Chapter 32. Donation Article 578 of the Civil Code of the Russian Federation. Cancellation of a donation 1. The donor has the right to cancel the donation if the donee has made an attempt on his life, the life of one of his family members or close relatives, or has intentionally caused bodily harm to the donor. In case of intentional deprivation of life of the donor by the donee, the right to demand in court the cancellation of the donation belongs to the heirs of the donor. 2. The donor has the right to demand in court the cancellation of the donation if the recipient’s handling of the donated item, which represents great non-property value for the donor, creates a threat of its irretrievable loss. 3.

Invalidation of the gift agreement

If during the trial the apartment is sold, donated, exchanged, its market value is compensated. The limitation period in case of cancellation of a gift is 12 months from the date of conclusion of the contract. The general limitation period is 3 years. Consequences of termination or cancellation of the contract Article 578 (clause 5) of the Civil Code provides for the return of the apartment to the donor in kind after cancellation (termination) of the deed of gift.
This rule applies both to judicial cancellation and to termination of the contract by its parties. But by the time the contract is declared invalid, the apartment may already have been sold to the recipient. In this case, the amount from the sale is compensated to the owner in monetary terms. At this stage, the biggest problems arise: the recipient may have already spent the money from the sale of the apartment, but he no longer has his own funds. In this case, collection is also carried out in court.

Cancellation of a gift agreement

Additionally, the possible fact of exposure of one of the parties to the transaction to violence or pressure is taken into account. In this case, the period is calculated from the moment of termination of these actions. In examples of actual judicial practice, an important point is the evidence base. To make a positive decision to terminate the gift transaction, it is necessary to provide undeniable facts of violation of the law.

These include documents, medical certificates and witness statements. Features of challenging a deed of gift If the subject of the transaction is real estate (apartment, house, land), new possibilities for challenging are added. When signing an agreement, the parties are obliged to comply with all conditions and formalities - they express their desire not under pressure, are capable and are aware of the full responsibility of such a step.

Supreme Court of the Republic of Tatarstan (Republic of Tatarstan)) Decision in case 2-1541/2018 ~ M-10484/2017 (30.03.2018, Sovetsky District Court of Ufa (Republic of Bashkortostan)) Decision in case 2-1991/2018 ~ M- 585/2018 (03/28/2018, Sverdlovsk District Court of Krasnoyarsk (Krasnoyarsk Territory)) Decision on case 33-1079/2018 (03/27/2018, Smolensk Regional Court (Smolensk Region)) Decision on case 2-957/2018 ~ M -299/2018 (03/26/2018, Biysk City Court (Altai Territory)) Decision on case 2-1260/2018 ~ M-485/2018 (03/22/2018, Zelenodolsk City Court (Republic of Tatarstan)) Decision on case 33-5054 /2018 (03/22/2018, Supreme Court of the Republic of Tatarstan (Republic of Tatarstan)) Decision on case 2-3053/2017 ~ M-2737/2017 (03/22/2018, Shakhty City Court (Rostov Region)) Decision on case 2-820/ 2018 (2-8087/2017;) ~ M-7519/2017 (03/21/2018, Oktyabrsky District Court of the city.
The transaction may not take place for general reasons provided by law:

• in case of non-compliance with legal requirements;
• in the absence of the intention of the parties to create the corresponding legal consequences (imaginary contract);
• when concealing an actual agreement of a different kind;
• in case of recognition of a citizen as incompetent;
• in the case of a commission by a minor child (under 14 years of age) or in the absence of the consent of the guardianship authorities or trustees of a minor citizen;
• if committed by a citizen under the influence of a misconception regarding the nature of the procedure or a malicious agreement between representatives of the parties.

A transaction declared invalid does not entail any legal consequences. The recipient undertakes to return everything received to the donor, and if this is not possible, to reimburse its value in monetary terms (Articles 166-181 of the Civil Code of the Russian Federation).

Challenging a donation in court can be done by an interested person at a fairly extensive list of reasons- due to the pretense of donation (Article 170 of the Civil Code), ignoring the essential terms of the contract (Article 432 of the Civil Code), failure to comply with the required form (Article 574 of the Civil Code), etc. If the court recognizes the presence of at least one of them, the onset of adverse legal consequences (recognition of invalidity) for the parties to the transaction will be inevitable.

If some disagreements and claims regarding the implementation of the gift agreement were expressed not by third interested parties, but by the party to the transaction even before the transfer of the gift, then she may well realize her right to terminate the contract in court and terminate the gift relationship. Each of the parties has general (Article 450 of the Civil Code) and special grounds (Article 573 of the Civil Code, Article 577 of the Civil Code).

In addition to unilateral termination, the law also provides for a procedure cancellation of donation, which is aimed solely at protecting the interests of the donor. Note that some grounds for canceling a donation can be applied both before and after the transfer of the gift to the donee (clause 1 of Article 578 of the Civil Code). So, if the grounds provided for in Art. 578 of the Civil Code, the donor has the right to cancel the donation in court, which will oblige the donee to return everything received under the transaction or reimburse its cost.

According to civil law, the regime of common joint property can only operate between legal spouses (Article 34 of the Family Code) or between members of a farm (Article 7 of the Federal Law No. 74 of June 23, 2003).

Taking into account the consent of co-owners for one of them to make a donation, except in exceptional cases, should be considered nothing more than a formality. So, according to paragraph 2 of Art. 253 Civil Code, such consent is initially presumed(assumed) unless otherwise provided by agreement between such co-owners.

An exception to this rule is transactions for the alienation of real estate that is jointly owned by spouses. According to paragraph 3 of Art. 35 SK, donation of real estate jointly owned by spouses is possible by one of them, only if there is a notarized consent of the other spouse. In the absence of such consent, the transaction may be challenged in court on the initiative of the spouse who did not give notarized consent.

For your information

According to Art. 2 Federal Law No. 122 of July 21, 1997, state registration of rights to real estate is an act of recognition and confirmation by the state of the transfer and termination of rights to real estate. Thus, registration does not give rise to rights to real estate, but only officially confirms their transfer to another entity.

Based on the foregoing, at the time of filing an application for registration of rights to real estate with the registration authority under an agreement concluded after 03/01/2013, the legal relations of the parties, including the obligations of the donor, are already should be considered as having arisen, even though the transfer of ownership takes place only after it has been completed.

Thus, the death of the donor after the conclusion of the contract of gift of real estate, but before the completion of its registration, can not deprive the donee of the opportunity to protect his property rights. However, as judicial practice shows, many heirs of such deceased donors do not agree with this conclusion and believe that before the transfer of rights to real estate to the donee, in the event of the death of the donor, such real estate can be included in the inheritance mass by challenging the donation.

Despite this, domestic legislation does not contain any indication of the possibility of challenging a donation and recognizing its invalidity if registration of an already completed agreement was completed after the death of the donor. And besides, based on the norms of Art. 1112 of the Civil Code, in the event of the death of the donor after the conclusion of the gift agreement, all his property obligations pass to the heirs.

Thus, even in the event of the death of the donor before filing an application for state registration, the obligation of such registration his heirs will be burdened. If such heirs directly evade state registration, in accordance with clause 2 of Art. 165 of the Civil Code, it can be carried out by the donee by a court decision.

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