The donation agreement includes the donor's commitment to benefit the donated person without compensation. Such contracts, as the name suggests, are legal transactions that impose obligations on only one party. The fact that the donation is gratuitous determines the basic nature of such contracts. The donor does not expect any benefit in return for his donation, therefore the legislation imposes strict regulations, especially on capacity, in order to protect the rights of the donor. Accordingly, only people with full legal capacity can donate. In addition, the donor's obligations arising from non-fulfillment of the debt are also reduced.
Although donation involves a unilateral obligation, it is possible for the donor to add some conditions to the contract. However, this does not transform the contract into a contract involving mutual obligations, because the added terms are not considered as consideration for forgiveness; These are side acts. One of the conditions that can be added to the donation agreement is the right to return to the donor. In this type of arrangement, the donated asset element is designed to revert to the donor if the donor dies before the donor.
1. Basic Features of the Forgiveness Agreement
1.1. Characterization as an Act of Gaining Profit
The donation agreement involves the donor providing a financial gain to the donated person. This gain may be in the form of an addition to the assets of the donor (increase in assets) or a reduction in one of the liabilities (decrease in liabilities). For example, the transfer of a vehicle is an example of an increase in assets, while the acquisition of a debt is an example of a decrease in liabilities.
While giving increases the assets of the donor, it causes a decrease in the assets of the donor. However, situations such as giving up a right that has not yet been acquired or rejecting an inheritance are not considered as forgiveness. Similarly, the fulfillment of a moral obligation is not within the scope of donation, because in such cases there is no decrease in the donor's assets.
1.2. Principle of Non-Reciprocity
The donation agreement stands out because it is a transaction carried out without compensation. Unlike other property transfer transactions such as sale or exchange, donation is made without expecting any compensation. The donated goods or rights are donated by the donor without receiving any compensation. In this case, it is not important what the motivation is for the reason for forgiveness.
1.3. Agreement Between the Parties
In order for the donation agreement to be legally valid, the donor's declaration of will to transfer the goods or rights to the donated person without compensation and the donated person's will to accept this offer must coincide. Acceptance by the donor can be made explicitly or indirectly. For example, starting to use the donated property may indicate that acceptance was made indirectly.
2. Donation Agreement and Qualification Conditions of the Parties
Due to the characteristics of the donation agreement, the capacity of the parties is of great importance and must be evaluated separately for each party.
2.1. Donor's Capacity
In the donation agreement, since the donor relinquishes his assets without expecting anything in return, there is a decrease in his assets. In this case, legal regulations state that only people with full legal capacity can make such contracts in order to protect the donor. Full action capacity is found in individuals who have the power to distinguish, are mature and not limited.
Those who do not have full capacity to act cannot donate. In this case, legal proceedings can be carried out through legal representatives; However, according to the Turkish Civil Code No. 4721, there are some transactions that cannot be carried out even through legal representatives. These include the donation agreement. However, small-value donations can also be made by individuals who are not fully competent, with the consent of their legal representatives.
According to Article 286 of the Turkish Code of Obligations No. 6098, some donations made by fully competent persons may be cancelled. In particular, limitations such as property regime between spouses and inheritance law provisions should be taken into consideration. TMK Article 229 states that unrequited gains made without the consent of the other spouse within one year before the property regime of one of the spouses ends will be added as value to the acquired properties. TMK Article 565 regulates that donations other than donations made by the testator while reserving his right to return freely and gifts customarily given within one year before his death will be subject to criticism. Article 286/2 of the Turkish Code of Obligations states that if the donor is restricted due to extravagance within one year following the donation, this donation can be annulled by a court decision.
2.2. Driving License of the Donor
Within the framework of the donation agreement, the donated person receives an increase in assets. For this reason, the legislature has not introduced strict protection measures for the donated as much as for the donor. The sufficient condition for forgiveness is to have the power of discernment. In this case, the donor can accept the donation without needing the approval of his legal representative.
According to Article 287 of the Turkish Code of Obligations, if the legal representative of the donated person prohibits accepting the donation or requests the return of the donated thing, the donation becomes invalid. This regulation was put in place to prevent the misuse of donations or to prevent immoral donations.
3. Types of Forgiveness Agreement
3.1. Promising Forgiveness
When the donor undertakes to donate, the debt is not fulfilled at the time of the contract. This type of contract imposes an obligation on the donor to give.
In order for the donation promise agreement involving movable property to be valid, it must be made in writing. Donation of immovable property or real rights on immovable property must be done officially; The competent authority for these transactions is the land registry office.
TBK also regulated the status of donation promise contracts made without complying with the formal requirement. Accordingly, a contract of promising to donate, which is invalid due to non-compliance with the formal requirement, is considered as a donation in person when executed by the donor. However, in donations that require official formal form, this rule will not apply and the contract made without complying with the formal form requirement will be deemed invalid.
3.2. Donation İn Person
According to Article 289 of the Turkish Code of Obligations, personal donation occurs when the donor delivers a movable property to the donated person. In this type of donation, the donated goods are delivered to the donor at the time of the contract and are not subject to any form requirements; Only delivery of the goods is sufficient. However, since the transfer of immovable properties is realized through title deed registration, it is not possible to subject immovable properties to a donation agreement. In-person donation can only be applied to movable property and personal rights.
3.3. Conditional Forgiveness
The law allows forgiveness subject to certain conditions. In this case, the effectiveness or termination of the contract depends on an uncertain situation that may occur in the future. Both the delaying and disruptive condition can be decided.
Illegal or immoral conditions cause the contract to be completely invalid. If the condition is impossible to fulfill, the outcome of the contract is determined according to the nature of the condition. Under a delaying condition, if the condition is not fulfilled, the contract is considered invalid, whereas if there is a disruptive condition and this condition is fulfilled, the contract loses its validity.
3.4. Loaded Donation
Although the donation must be essentially gratuitous, the donor may attach various obligations to the donee in the donation transaction. The obligations contained in the contract do not make the contract involving reciprocal obligations because these obligations are not considered as consideration for forgiveness; these are side acts.
Downloads; It can be in the form of doing, not doing or giving. According to Article 27 of the Turkish Code of Obligations, the determined obligation must be in compliance with legal regulations, morality, public order and personal rights and must be possible to be realised.
Loadings may be directed directly to the donor or may be directed to a third party outside the contract.
In a donation agreement, the donor may demand from the donated person the fulfillment of the obligations he has accepted.
The contract may also stipulate an obligation in the public interest.
3.5. Forgiveness Subject to the Death of the Donor
In this type of donation agreement, the subject of donation will be transferred to the donee after the death of the donor. Essentially, this is a kind of contract of promising to donate, and the time for performance is postponed until after the death of the donor.
According to Article 290/2 of the Turkish Code of Obligations, such donations are subject to similar legal procedures as wills and the rules regarding inheritance law are applied. Therefore, such donation agreements must be made in accordance with the formal will requirements.
3.6. Returning to the Donor Conditional Forgiveness
The donor may add a condition to the contract that the donated assets will be returned to him/her if the donated person dies before him/her. This is a conditional type of donation and the condition set is the death of the donor.
While such donations for movable properties are not subject to any form requirements, for immovable properties the contract must be made officially in the title deed.
4. Withdrawing the Offer of Forgiveness
Pursuant to Article 293 of the Turkish Code of Obligations, even if a person offers to donate a property to someone else and separates this property from his other properties, he can withdraw the offer until it is accepted by the donated person. This shows that the binding offer of forgiveness does not last until it is accepted by the donee.
5. Obligations of the Donor
The donor is obliged to transfer the possession and ownership of the donated thing to the donated person. If the donor does not fulfill this obligation, a performance lawsuit may be filed. If the subject of donation is not a real estate, a registration case can be filed in accordance with TMK Article 716.
If it is agreed that the donation will be performed periodically, the donation will end with the death of the donor unless the parties make another arrangement.
6. Responsibility of the Donor
Since, in accordance with the donation agreement, the donor undertakes an obligation without receiving any compensation, legal regulations have made the donor's liability lighter than other debtors.
Interest calculation on money debts usually starts from the moment the debt is not paid. However, in a donation agreement, interest begins to be calculated from the date on which a lawsuit is filed or proceedings are initiated for performance, which causes the interest to start accruing at a later date.
The donor will only be held responsible for the damage that occurs as a result of not fulfilling the debt arising from the donation agreement, in case of gross negligence or intent.
If the donor has made an additional guarantee commitment regarding the donated thing or receivable, he will be liable in accordance with these commitments. This means that the donor will be responsible for the seizure or defects of the donated goods only if he undertakes these matters.