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Shkendi Qli, European University of Tirana PhD Candidate in Law, lawyer, Social Security Institute
E-mail: [email protected]
Donation contracts by Albanian legislation
Abstract: The contract of donation finds its legal regulation in French Civil Code of1929. Nowadays the donation contract is governed by the current Civil Code which expressly provides that title II, Chapter III, Articles 761-771, by the definition in Article 761, which states: "the donation is a contract by which one party transfers in ownership without compensation to the other party a certain thing or a real right, which she accepts."
Keywords: contract, donation, donors, beneficiaries, revocation.
The donation is a contract that aims to help people and humanity to each other. By donating dress and act et legal intend to spend in favor of entities of different physical and legal groceries, funding financial base, other materials for carrying out activities on different health character, educational, scientific and other [1].
As a typical contract which expressly provided for by the Civil Code, the contract of donation epitomizes the spirit of kindness and humanity that characterizes. And precisely, the cause, which pushes the parties to enter this legal relationship by performing donation is precisely the desire to increase the wealth of the other, like that which, as in every contract, even to the donation contract needs to be accepted to produce its effects [2].
The donation contract is a civil legal relations regulated by our Civil Code expressly. So, the civil law norms envisage circumstances that give rise to civil legal relations, predict what conditions legal relations can be created, modified or abolished.
Such as civil legal relationship consists of three essential elements and essential for its existence: a) entities which establish the relationship between civil law; b) the object of civil legal relationship; c) the content of this relationship, which consists of rights and obligations of the parties arising from specific legal relationship. The contract of donation can be considered as a legal relationship having in the broadest sense of the word, which is nothing more than "legal relationship by which one person (the debtor) is obliged to give something or to perform or not
to perform an action given the benefit of another person (the creditor), and where the other person has the right to demand to be given something, or the performance or nonperformance of the act." [3].
The object of the contract of donation usually rights and obligations of the parties managed on a particular subject, without which the legal relationship itself will not make sense, would not be created and exist. In this sense, the object of civil legal relationship and in particular donation is anything on which address subjective rights and legal obligations corresponding to people as subjects of law have in this relationship [4].
If you will rely on the definition provided by the Civil Code of ours, we can say that: "The donation is nothing but a contract by which one party transfers in ownership without compensation to the other party a certain thing or a real right, which she accepts" [5].
So that we have to compete donation two elements: a) the subjective element to enrich the beneficiary will or spirit of generosity, known as animus donandi; b) target-element depletion of donor corresponding to the enrichment of the beneficiary at the same time.
The subjective element consists of «the spirit of kindness and generosity", or better known as "animus donandi", which express above all the lack of a legal obligation or moral and just. Even if it is a gratuitous donation contract, generosity is also present although donor carries legal action being launched from the recognition or consideration of the merits of the beneficiary or the desire to show gratitude by
Donation contracts by Albanian legislation
giving a special reward. If lacking animus donandi, action can not be classified as a donation, but also required a motive which constitutes personal and concrete impulse to the donor [6].
But since we are dealing with a donation is not enough just animus donandi subjective element, but that this action should be characterized and target element. According to the target element, the donation should lead to increased wealth beneficiaries and reduced property donor, and the donor do this voluntarily, without being forced by any other cause [7].
Analyzing the contract of donation, vemi note that the legislator treats and considers donation as a mutual legal action [8].
For the relationship that arises as a result of the donation contract, like any other legal relationship, there are two parties, the donor in debtor position of this relationship, and the beneficiary of the obligation, as the creditor. As a result of the contract and based on the effects that it brings to the parties, the element of real property eventually passes the donor to the recipient of the donation. Donor obligation to transfer ownership of the object corresponding to the right of donation recipients to gain ownership of this item. The contract of donation is the real contract, which is concluded and brings its effects on the moment when the thing delivered to grant recipient [9]. The real character of the donation contract consists in the fact that it requires the perfection of delivery of the thing from one party to another and form of contract can not be amended by agreement of the parties, turning it into a consensual contract [10].
Another issue of contention but which is related to the legal nature of the donation contract as a contract real, it has to do with contracts donations which are subject to transfer without compensation ownership of real rights on items (Article 761 of the Civil Code) [11]. In this case it is clear that we can not talk to a donation contract with real character, it would be meaningless to speak of the delivery when the material scope of the contract of donation are real rights on items. It is quite understandable that the donation contract with the object of gratuitous transfer of ownership of real rights on items is a consensual contract, then the moment of conclusion of
the contract is the moment when the match wills parties, donor and recipient.
At about this moment held the same attitude and the United Chambers of the Supreme Court in the unified decision. The decision included in the group of real rights, which can be transferred through the donation contract, the right of first refusal and that of compensation [12]. Panels States Supreme Court concluded that: "The contract of donation of the right of first refusal of the former owner (his heirs) and the donation of the right to compensation for items that can not be returned, in terms of the law "On Property Restitution and Compensation of former owners", considered consensual contract. Put more succinctly that it deemed connected, as long as the donor is expressed in the form required by law, the willingness to make the donation and the recipient of the gift, in this form, have expressed willingness to acceptance of the gift."
Regarding these two rights which pass through the donation they do not contradict the Civil Code, which in Article 762 stipulates that "donation may constitute only real current donors." In this case we are not dealing with the real future donors but we are dealing with a fortune already his, as this asset existed at the time of opening the inheritance and has become effective with the entry into force of Law no. 7968, dated 15.04.1993, on the basis of which the Commission decision was taken property. This object is not determined by its volume but is determined in time. So, the contract of donation of pre-emption right of the former owner and that of donation of the right to compensation for items that can not be returned, considered consensual contract. So, we can say that if the object of the contract of donation are real rights, the contract of donation will be a contract consensual and considered in the moment of expressing the will of the parties in the form required by law, without the need of delivery of the thing, unlike the character of this contract when the object is immovable property. The donation contract is concluded at the moment in which the person who made the offer (the donor) has been informed about the acceptance of the other party (the beneficiary). So, an important element that is explicitly required beneficiaries
to receive it, because no one can be forced to ac- Conclusions
cept a right against his will. This acceptance must In conclusion, the consistency of wills of both
be expressed and can be given in the same act of parties, donors and beneficiaries, is one of the es-
donation contract or in a subsequent act, which sential conditions for the validity of the contract as
must have the required legal form depending on at the moment in which the parties can not agree
the subject of the contract [13]. on signing the contract, it does not bring any effect.
References:
1. Semis Tutulani Mariana, Obligation and Contracts, special part, Tirana 2006
2. URL: http://www.doktoratura.unitir.edu.al/wp-content/uploads/2014/01/doctorate -Anjeza-Licenji-Faculty-of-Justice-Department-of-the-Right-Civile.pdf
3. Article 419, "Understanding the obligation", Civil Code.
4. ArdianNuni, "Civil Law", The General, Tirana, 2011.
5. Article 761, first paragraph, Civil Code.
6. BiondoBiondi, "La donations that, civil Trattato di dirittoitaliano" TrattattoVassalli, Torino 1961.
7. Italian jurisprudence, decision no. 2001 dated 11.03.1996, the Court of Cassation, has concluded: "The lack of remuneration is sufficient to reward outstanding legal actions from legal actions without reward, but it is not enough to identify the donation for whose existence is necessary not only increase the wealth of the beneficiaries, the subjective element consisting in the spirit of liberality and fully conscious at the time of its commission, without being forced; but it required the existence of the target element which consists of the impoverishment of one who has renounced his right."
8. ArdianNuni, "Civil Law", The General, Tirana, 2011.
9. Real contracts are those contracts to which the validity of the law requires not only the agreement of the parties, not only the appearance of will on their part, but the delivery of the thing object of the contract. These contracts, although they may be drafted, signed and the parties agree to link them, not take effect and no legal consequences for them until delivered item is not subject to contract. Mariana Tutulani — Semis, "Law of Obligations" Part of Special Skanderbegbooks, Tirana, 2006.
10. Italian legislation described the donation as a contract consensual, which is perfected only with the emergence of the will of both parties, without the necessary delivery of the thing, except the contract of donation items of small value, which can be done but no public act requires delivery of the thing. Guido Capozzi, "Successioni of Donazioni" GiuffreEditore, Milan, 2003.
11. URL: http://www.doktoratura.unitir.edu.al/ep-content/uploads/2014/01/doctorate -Anjeza-Licenji-Faculty-of-Justice-Department-of-the-Right-Civile.pdf
12. Unifying decision no. 23, dated 01.04.2002, of the United Chambers of the Supreme Court. Based on this decision: "The right of first refusal of the former owner (his heirs), recognized in Article 21 of the Law" On the restitution and compensation of property to former owners ", considered the real right and, as such, it It may be available through the donation contract. The real right considered the right to compensation for property that is known to belong to the former owner, but can not return, according to the Law on restitution and compensation ofproperty to former owners. Even the right of compensation to the former owner (his heirs) can freely available by donation. The right of first refusal and the right to compensation of the former owner (his heirs) are included in the concept of property of a person ... It is true that the scope of the contract i. e. Rights transferred to the respondent, are not defined in terms of their volume, but, however, this object is determinable in time."
13. Mariana Semis - Tutulani, "Obligation" The Special Skanderbegbooks, Tirana, 2008.
