Chapters of the article
You give your girlfriend a car and she cheats on you with your best friend. You gave your son your grandmother’s apartment and he destroys it with his friends at regular drinking parties. Your neighborhood reacted perhaps in a “measure twice, cut once” fashion. You should have just thought it through. But there are situations where the law is on your side and allows you to reclaim the gift.
The law allows you to get the gift back in the following situations:
- failure to comply with a condition attached to the gift
- withdrawal of a gift due to hardship
- withdrawal of a gift for ingratitude
Withdrawal of a gift for ingratitude
Therevocation of a gift for ingratitude is the most common of the above options. It is good to know that you can revoke a gift on the condition that the donee has wronged you or a loved one. This does not only mean physical harm, but also psychological harm (obvious breach of good morals). This can be done either intentionally or through gross negligence.
Although gift-giving may appear to us to be a purely unilateral matter, it is in fact a bilateral contract which can also be withdrawn in certain cases. From a legal point of view, therefore, the withdrawal of a gift is understood as a withdrawal from the contract of gift.
Thus, from the above examples, we could consider infidelity as such ungrateful behaviour that can lead to revocation of a gift. Destruction of property by a descendant, for example in the form of staining the walls or ruined floors, may undoubtedly annoy you, but it can hardly be regarded as ingratitude towards you personally.
Tip: we have discussed the issues relating to the gifting of property in more detail in our article.
The temporal aspect of such behaviour is also important. You have the right to revoke the gift within one year after the person has wronged you or when you become aware of the behaviour (if you became aware of it later than it happened). The case law (in particular, the Supreme Court’s resolution 33 Cdo 3001/2009) on the revocation of a gift for ingratitude states that “at the moment of the act of the donee which fulfils the features mentioned in this provision, the donor has the right to demand the return of the gift, i.e. to demand from the donee the return of what was the subject of the gift. If the donor exercises this right, the donation relationship shall terminate at the moment when his expression of will reaches the donee.” By exercising that right, you therefore become the owner of the object again. The donee is then obliged to hand over the item to you.
Compared to the previous legislation, which set the limitation period for revoking a gift at three years from the date of donation, this legislation is more favourable for the donor.
Therevocation of a gift has no fixed legal form and can be made orally, by telephone, in writing or in any other way. Especially in the case of more valuable gifts, it is advisable to think about the possibility of proving revocation later.
But what if the donee no longer has your gift? Perhaps they have lost it, lost it or given it to someone else? In this case, you are entitled to financial compensation for the value of the gift.
Since the basic assumption for the above procedure is that the donor is not treating us very well, you can expect that he or she will not be in a hurry to return the gift. You will then often have no choice but to seek the return of the gift through the courts. You have the choice of suing for the return of the item (for movable items) or suing for ejectment (for immovable property) or suing for unjust enrichment (for destroyed items where the donor’s reason for acquiring the item has ceased to exist) in the court of local jurisdiction, which will be the district court where the donor resides. In some cases, it may also be worthwhile to bring an action to establish ownership.
Do you want to pursue your donation through a lawsuit?
Determining which lawsuit is the right one and drafting it appropriately is typically a task for a lawyer. The templates on the internet generally do not apply to such cases, or do not capture the specific nature of yours. Contact our attorneys to assess your case and write a customized lawsuit, or even represent you in court.
What does the donee have to give back?
The donee shall return first of all everything that has been given to him/her and should also return to the donor the benefit that he/she has derived from the gift. This means the case where the gift has earned him further, brought him additional income, etc. At the same time, however, the donor is obliged to pay the necessary costs that have been incurred for the item, for example, to prevent its destruction. When returning the gift, the normal wear and tear of the gift is taken into account.
Practical example – After the donation of the land, the relationship escalated to such an extent that a physical assault occurred
Mr. Kamil had a bad experience with the donation and turned to us. He donated a plot of land to his nephew, right next to his house. But once all the formalities were completed and they sent the signed contract to the land registry, their relationship changed. Instead of helping Mr. Kamil earlier, his nephew now ignored his requests for help related to what he needed due to his health condition and showed no interest in him. During the construction of the house, they even had an argument one day to the point that Mr Kamil was physically assaulted by his nephew. With our help, Kamil got his nephew to pay him a substantial compensation for the plot and the gift agreement was cancelled.
Failure to comply with a condition attached to the gift
Another possible situation where you can reclaim your gift is if you have attached a condition to it but it has not been fulfilled.
However, the order or requirement should be justified and also limited in time. You cannot oblige someone forever as to how they may dispose of the item. The time limit should be proportionate, for example, on the order of a few years. The specific case would then be judged by the court. Conversely, such an order could be considered unreasonable and that part of the gift agreement could be invalidated by the court.
Withdrawal of a gift for hardship
A gift revocation can also occur in a situation that occurs this time on the donor side. If the donor is in need and has no money to support himself or a person he is obliged to care for, he can also revoke the gift. In doing so, he may, on the one hand, require the donee to return the gift to him or to pay him its normal value, but only to the extent that the donor lacks the means for the said maintenance.
However, this is not the case where the donor has been put in need through no fault of his own, for example, by losing all his funds in a slot machine or by laundering them.
In practice, this may be the case, for example, where parents give their offspring an apartment and then lose their jobs and find themselves in such a difficult situation that they have no way to support themselves. They can then demand the apartment back or demand money from their son to the extent that they are unable to support him.