What is a Donation Agreement in Turkish Law?

DONATION AGREEMENT

A donation agreement is one of the most frequently made agreements in daily life. It is a legal act that occurs when the donor transfers assets from their own property to another person without compensation, and it is generally intended to have effects between the living.

ELEMENTS OF THE DONATION AGREEMENT

The donor making a beneficent transaction from their own assets

As a rule, the subject of the donation should belong to the donor. The donor must have the authority to dispose of the property in question. For example, a person cannot donate a necklace that belongs to a friend to someone else. The beneficent transaction can increase the donor’s assets or decrease their liabilities. For example, you can donate by releasing someone from a debt they owe you.

The benefaction being done with the “purpose of donation”

Fulfilling a social or moral duty does not constitute a donation. In this context, giving gifts to loved ones does not bring up the concept of donation.

Making an agreement

For a donation to be valid, there must be an agreement. The donee must also accept the donation.

Having inter vivos effects

This distinguishes a donation agreement from a will. As a rule, a donation takes effect during the donor’s lifetime, not upon their death; otherwise, it would be considered a will.

WHO CAN MAKE A DONATION AGREEMENT?

Not everyone has the capacity to donate.

– Generally, persons with full capacity, i.e., those who are 18 years old, capable of distinguishing and not restricted, can make donations.

– Minors cannot make donations, even through their guardians.

– Persons who are of age but restricted can make donations with the permission of their legal advisors.

– Persons without the capacity to distinguish cannot make this transaction under any circumstances.

WHO CAN ACCEPT A DONATION?

– Adults can accept donations.

– Minors can accept donations if they have the capacity to distinguish, but legal representation has the authority to prevent this donation.

WHAT CAN BE DONATED?

In practice, donations are often made on movable or immovable properties. However, the subject of a donation agreement can also be other things. For example, discharging a debt to relieve the donee from the debt can constitute a donation.

However, performing a service free of charge does not constitute a donation because, as a rule, service is not considered an element included in the property. The renunciation of an inheritance is also not considered a donation.

TYPES OF DONATION AGREEMENTS

There are various donation agreements regulated in our law. These include:

1. Promise of Donation

2. Manual Donation

3. Conditional Donation

4. Donation with a Charge

PROMISE OF DONATION

The promise of donation is also known among the public as giving a promise to donate. By making a promise to donate, the donor undertakes the obligation to donate the item in question. There are certain elements to making a promise of donation. Donations should be made by paying attention to these elements; otherwise, your beneficent transaction will not be valid.

Key elements to consider:

Immovable donations must be made formally.

The donation of an immovable must be made formally at the land registry. A formal procedure is required to promise the donation of an immovable or a real right on an immovable.

Non-immovable donations must be made in writing. (signature required)

Even if a promise of donation made without adhering to this form has been fulfilled, it is deemed as “manual donation” in principle. So, donations made without adhering to the form are accepted but take on the nature of manual donation and have different legal consequences. However, this does not apply to immovables. It is valid for the donation of movables without adhering to the form. For detailed information, you can visit our office to receive legal consultancy from lawyers who are experts in the field.

MANUAL DONATION

Manual donation is valid for “movable properties” by nature. As a rule, the delivery of a movable from the donor to the donee constitutes manual donation.

It should be noted that immovables are not suitable for manual donation, but “unregistered immovables” are subject to manual donation in practice.

To make a manual donation, the possession of the movable must be transferred. This can be done through delivery, as well as other methods like the transfer of possession or short-hand delivery.

CONDITIONAL DONATION

A donation can be made subject to a resolutory or suspensive condition. Example situations:

– A donation can be made in connection with death. In this context, especially in practice, contracts are made for the donation to take effect after the donor’s death. However, this situation is regarded as a disposition related to death rather than a donation in doctrine.

– A donation can be made subject to the condition of returning to the donor.

This situation is frequently encountered in practice. It can be stipulated that if the person who received the donation dies before the donor, the property returns to the donor. For example, it is possible for a mother to donate her property with the condition that it returns to her if her child dies before her.

DONATION WITH A CHARGE

According to legislation, the donor can impose charges on their donation. This is not considered a counter-performance. The donee may be expected to fulfill a charge for a specific purpose. For example:

– Donating with the condition of building a school

– Imposing the charge of providing scholarships to a certain number of students each year

The donee must fulfill this charge. Otherwise, the donor can revoke the donation. It should be noted that those who benefit from the charge (e.g., those who receive the scholarship) do not have the right to demand the donee to fulfill the charge.

After the donor’s death, the heirs can also request the fulfillment of the unfulfilled charge. If the charge is for the public good (such as building a school), the relevant public institution can also request its fulfillment after the donor’s death.

REVOCATION OF THE DONATION

The reasons for the donor to revoke the donation are listed in the law. The person who learns of these reasons can revoke the donation within 1 year. If the donation has not yet been fulfilled, it will no longer be relevant after the declaration of revocation. However, if the donation has already been fulfilled, it can be reclaimed under the provisions of unjust enrichment.

If the donor dies before the one-year period expires, the right to revoke passes to their heirs, who can exercise this right within a one-year period. However, if the donee unlawfully and intentionally kills the donor or prevents the donor from exercising the right to revoke, the heirs can revoke without being bound by the time limit.

The reasons for revocation are based on whether the donation was fulfilled before or after:

Reasons for Revocation After Fulfillment of the Donation;

– If the donee has committed a serious crime against the donor or one of their relatives

– If the donee has significantly violated their legal obligations towards the donor or a member of the donor’s family

– If the donee has not fulfilled the charge without a justified reason in a conditional donation

Reasons for Revocation Before Fulfillment of the Donation;

– If there is one of the reasons for requesting the return of a manually donated item

– If the donor’s financial situation has changed to an extraordinary extent, making it extremely burdensome to fulfill the promise

– If the donor has new family obligations or these obligations have significantly increased after making the promise of donation (e.g., the donor wanting to revoke the donation for the welfare of their newborn child)

 

For more detailed information on donation and donation agreements, you can contact us.

EXCERPTS FROM SAMPLE COURT DECISIONS ON DONATION AGREEMENTS

“…the document was organized conditionally by the parties in exchange for the plaintiff taking care of the deceased spouse, and it should be accepted as a conditional donation commitment. The condition was fulfilled because the plaintiff took care of the spouse until death, and although the donation commitment was not made in the manner prescribed by law, the time elapsed and the use of the immovable by the plaintiff during this time implicitly indicated the approval of the donation by the defendant heirs. Considering equity, the case was accepted…”

(8th Civil Chamber        2011/4934 E.,   2011/5600 K.)

 

“…although some endowments resemble donations, they cannot be considered donations because the endowment was not made solely for the purpose of donation. Fulfilling a moral duty is also not considered a donation. The investments made by spouses to secure their common life and future based on mutual trust and customary practices, believing that the marriage will last a lifetime, cannot be considered a donation…”

(8th Civil Chamber        2015/22213 E.,   2018/11898 K.)

 

“…However, immovables not registered in the land registry are considered movable property, and manual donation agreements made by transferring the right of possession are not subject to

any formal requirements. Therefore, concealed endowments of this nature are valid…”

(1st Civil Chamber        2016/12700 E.,   2019/6204 K.)

 

“…the debtor’s acceptance of a very low price as consideration makes the disposition equivalent to a donation. Moreover, based on Article 278/1, since the defendants are descendants, the disposition is considered a donation, and the case was accepted…”

(17th Civil Chamber       2016/18406 E.,   2019/5610 K.)

 

 
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