DONATION AGREEMENT IN FORENSIC ARBITRATION PRACTICE

A.WITH. FEOPHILACTOV

Feofilaktov Alexander Sergeevich, head of the legal department of the State Educational Institution of Higher Professional Education "Vladimir State University named after Alexander Grigorievich and Nikolai Grigorievich Stoletov."

The current civil legislation considers donation as an independent type of gift agreement, which is expressly provided for in clause 1 art. 582

Despite the fact that the vast majority of relations in the field of economic activity are of a reimbursable nature, in recent years, disputes related to donation agreements have become much more common in judicial arbitration practice. As an analysis of cases in this category shows, courts have problems applying these norms of civil legislation, which leads to the adoption of contradictory judicial acts.

The use of a donation agreement as a way to formalize property relations is currently developing rapidly. Many financially wealthy citizens and organizations providing charitable support to socially significant structures prefer to protect their interests from unscrupulous recipients of assistance by concluding transactions that specify the procedure for using the property they provide for generally beneficial purposes.

The donation agreement cannot be considered a completely new institution for domestic civil law. As is known, in pre-revolutionary Russia, patronage of the arts reached a fairly high level of development, which could not but be reflected in legislative acts.

During the Soviet period, legislation did not use the term “donation”. However, as an analogue of this type of gift agreement, para. 3 tbsp. 256 of the Civil Code of the RSFSR of 1964, which provided for the donation by a citizen of property to a state, cooperative or other public organization for a certain socially useful purpose.

Taking into account new trends in the development of socio-economic relations, the current Civil Code of the Russian Federation regulated relations in the field of gratuitous transfer of property for socially useful purposes in more detail, highlighting an independent form of transaction - a donation agreement.

A donation agreement is defined in law as an independent form of donation of a thing or right with specific features established in the Civil Code of the Russian Federation and some other legal acts.

The donation agreement is fully subject to the statutory rules of donation, unless otherwise expressly provided in the current legislative documents.

Let us highlight the main features of the contract under consideration.

1. The donation is free of charge, i.e. cannot be conditioned by counter-performance on the part of the donee. Provided in Art. 582 The Civil Code of the Russian Federation, the intended purpose of the transferred property should be considered as an encumbrance established by the donor, which makes it possible to guarantee the achievement of a generally beneficial goal.

In judicial practice, there are often disputes related to resolving the issue of whether the relationship between the parties was gratuitous in nature or whether property was transferred from one person to another for a fee.

Thus, in particular, the charitable foundation for the support of medicine “Humanitarian Action” (hereinafter referred to as the fund) filed a claim with the Arbitration Court of the Vladimir Region against the municipal unitary institution “Kolchugino Central Regional Hospital” (hereinafter referred to as the hospital) for the recovery of 592,181 rubles 58 kopecks in arrears in payment medicines transferred under the delivery note and invoice dated November 26, 1998 N 601.

The court decision satisfied the claims in full. According to the case materials, the fund transferred insulin to the hospital using invoice No. 601 dated November 26, 1998. In the invoice issued by the fund with the same date and number, the cost of medicines is determined in the amount of 20,204.08 conventional units. There was no written agreement between the parties.

In June 2001, the fund appealed to the arbitration court with a demand to collect debt from the hospital in an amount calculated at the US dollar exchange rate on the day the decision was made.

Satisfying the claim, the court came to the conclusion that a one-time sale and purchase transaction was concluded between the parties and in accordance with paragraph 1 of Art. 486 of the Civil Code of the Russian Federation, the buyer has an obligation to pay for the goods.

The appellate and cassation courts, leaving the decision of the first instance court in force, recognized the defendant’s argument about the transfer of medicines by way of donation as untenable, since the law established a presumption of compensation for the transaction, and no evidence was presented that the hospital received insulin free of charge.

Thus, due to the fact that the parties did not initially determine the nature of their relationship regarding the transfer of property to the medical institution, a dispute later arose about the hospital’s obligation to pay for the medicines transferred to it, although the recipient believed that he was acting within the framework of the donation agreement.

However, the Supreme Arbitration Court of the Russian Federation, having considered this case by way of supervisory review, overturned the judicial acts of the lower courts on the following grounds.

In accordance with paragraph 3 of Art. 423 of the Civil Code of the Russian Federation, a contract is assumed to be for compensation unless otherwise follows from the law, other legal acts, content or essence of the contract.

According to paragraph 1 of Art. 118 of the Code, a foundation is recognized as a non-profit organization pursuing social, charitable, cultural, educational or other socially beneficial goals.

The fund's charter (clause 1.6) provides for the provision of property and financial assistance to institutions of the medical and preventive network, orphanages, schools, etc. as its main goal. institutions.

Based on clause 2 of Art. 118 of the Code, the foundation has the right to engage in entrepreneurial activities, but this activity is limited by its statutory goals.

Entrepreneurial activity aimed at making profit at the expense of persons to whom the fund should provide property and financial assistance obviously contradicts the purposes of creating the fund as defined by law and the charter.

In the invoice and invoice dated November 26, 1998 N 601, there is no reference to the hospital’s obligation to pay for the goods, to the procedure and terms of payment, and it does not indicate which foreign currency the conventional units are equivalent to.

In addition, the claim was brought 2.5 years after the transfer of the goods, which also confirms that the parties initially had the goal of concluding an agreement for the donation of medical drugs to achieve generally beneficial goals. In connection with which the judicial acts were canceled and the case was sent for a new trial to the court of first instance<1>.

———————————

<1>Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 24, 2002 N 6609/02 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2003. N 1.

2. The subject of the agreement may be donations in accordance withclause 1 art. 582Civil Code of the Russian Federation things or property rights belonging to the donor.

Thus, in contrast to a regular gift agreement, a donation cannot be made by releasing the donee from fulfilling a property obligation to the donor or another entity that has the right of claim in relation to the donee. At the same time, according to the author, such a restriction is not entirely justified, since in practice often organizations operating in a socially significant area have significant debts under various types of obligations, primarily contractual ones. In this regard, it would be quite appropriate to establish in the Civil Code of the Russian Federation such an opportunity for potential donors. Moreover, it is often more convenient for subjects wishing to make a donation for charitable purposes to fulfill for the donee some obligation under a transaction concluded by him, than to first acquire an item for himself, and only after that transfer it to the donee. Currently, in fact, a similar form of donation is used by many educational and other institutions, although based on the literal interpretation of Art. 582 of the Civil Code of the Russian Federation, the payment of a bill for the donee in favor of a third party cannot be considered a donation.

The subject of a gift agreement can also be securities owned by the donor, since they certify a certain amount of property rights transferred to the recipient of the donation. The possibility of using shares when making a donation is confirmed by materials from arbitration practice, while the transfer of securities is also carried out for generally beneficial purposes.

So, in particular, a number of citizens filed a claim with the Arbitration Court of the Irkutsk Region against the Committee for State Property Management (Kugi) of the Irkutsk Region, the open joint-stock company (JSC) “Haitinsky Porcelain”, Terskikh V.N.: 1) for the recognition of transactions as void purchase and sale of shares of OJSC “Haitinsky Porcelain”; 2) on recognition of the void transaction of donation of shares of the open joint-stock company (OJSC) “Siberian Porcelain”, concluded between OJSC “Khaitinsky Porcelain” and KUGI of the Irkutsk Region.

According to the text of the statement of claim, the plaintiffs are shareholders of OJSC Khaitinsky Porcelain. OJSC Khaitinsky Porcelain was a shareholder of OJSC Siberian Porcelain, owning 24,000 shares.

The general meeting of shareholders of OJSC Khaitinsky Porcelain on March 17, 2000 made a decision (97.6% of shareholder votes) to transfer the shares to the ownership of the Irkutsk region under a donation transaction.

On April 5, 2000, a donation agreement was concluded between KUGI of the Irkutsk Region (as a representative of the Irkutsk Region) and OJSC Khaitinsky Porcelain, under the terms of which OJSC Khaitinsky Porcelain donated and transferred 24,000 shares of OJSC Siberian Porcelain to the ownership of the Irkutsk Region.

The donation agreement was fully executed by the parties. The plaintiffs filed a claim with the arbitration court to declare the said transaction invalid, arguing that it was of an enslaving nature and was concluded by malicious agreement of the parties without a generally beneficial purpose.

The courts of the first, appellate and cassation instances rejected the claim due to the following circumstances.

Donations can be made to citizens, medical, educational institutions, social protection institutions and other similar institutions, charitable, scientific and educational institutions, foundations, museums and other cultural institutions, public and religious organizations, as well as the state and other subjects of civil law specified in Art. . 124 of the Code.

According to paragraphs 1, 3 of Art. 4 of the Federal Law “On Charitable Activities and Charitable Organizations”, citizens and legal entities have the right to freely carry out charitable activities on the basis of voluntariness and freedom of choice of its goals. No one has the right to limit the freedom to choose the goals of charitable activities established by federal law and the forms of its implementation.

In accordance with Art. 65 of the Civil Code of the Russian Federation, the plaintiffs did not prove that there was a malicious agreement between the representatives of the parties and (or) the disputed transaction was of an enslaving nature. In addition, the plaintiffs were not parties to the donation agreement dated April 5, 2000, and cannot be recognized as victims in the sense of Art. 179 of the Civil Code of the Russian Federation and, therefore, cannot file a claim to declare the said transaction invalid due to its servitude and (or) the presence of a malicious agreement between the representatives of the parties.

Thus, in this case, the courts recognized that it is permissible to transfer shares by a commercial organization to a public legal entity, in the dispute under consideration - to a constituent entity of the Russian Federation, under a donation agreement and this does not contradict the purposes of the donation established in Art. 582 Civil Code of the Russian Federation<2>.

———————————

<2>Resolution of the Federal Antimonopoly Service of the East Siberian District in case No. A19-3225/04-13-6-Ф02-6009/05-С2 dated January 26, 2006

3. The list of entities that can act as donees under a donation agreement, inArt. 582The Civil Code of the Russian Federation is specified exhaustively and is not subject to broad interpretation. In the event that a donation is provided to an entity that cannot be included in the list specified in the legislation, this transaction may be declared invalid by the court in accordance with Art. 168 Civil Code of the Russian Federation. The legislator has introduced a presumption according to which commercial organizations cannot receive property for the implementation of generally useful tasks, since this contradicts their legal essence, aimed at making a profit from their own activities.

An illustrative example in this case is the following case. Limited Liability Company Trans-Invest-Sarov (hereinafter referred to as TIS LLC, the company) filed a claim with the Arbitration Court of the Nizhny Novgorod Region against the Fund for the Development of Conversion Production (hereinafter referred to as the Fund, FRKP) to invalidate the additional agreement dated April 28, 2004 No. 2 to the target financing agreement dated July 9, 2003 No. FR03-03/112 and on the application of the consequences of invalidity of the transaction by returning 6,403,870 rubles.

By the decision of the court of first instance dated March 14, 2003, left unchanged by the Resolution of the First Arbitration Court of Appeal dated May 24, 2006, the claim was rejected. When adopting judicial acts, both courts proceeded from the fact that the grant agreement dated April 25, 2002 N 6017, concluded by the Nuclear Threat Initiative, Inc. (hereinafter referred to as Corporation N TI) with the fund, the rules of Art. 582 of the Civil Code of the Russian Federation on donation, since the said agreement provided for financing the program “Creation and development of new civil industries in the city of Sarov”; TIS LLC, as a commercial organization, cannot be a recipient under a donation agreement; the target financing agreement dated July 9, 2003 N FR 03-03/112 is a loan agreement; The recipient of free technical assistance in the amount of $360,000 is considered to be the defendant, who has the right to use the funds received in the form of a donation to finance on a repayable basis commercial or non-profit organizations for generally beneficial purposes.

The plaintiff filed a cassation appeal against the judicial acts to the Federal Arbitration Court of the Volga-Vyatka District, in which he indicated that he was the recipient of gratuitous assistance under a donation agreement, and therefore considers the conclusions of the courts of first and appellate instances to be unlawful.

However, the cassation court did not agree with the arguments of the complaint and left the judicial acts unchanged. One of the conclusions of the court was the indication in the Resolution of the following circumstance: “Irrevocable transfer of funds would mean a donation (donation of property for general beneficial purposes with the condition of using the property for a specific purpose). However, due to Article 582According to the Civil Code of the Russian Federation, TIS LLC cannot be a donee under a donation agreement.

Under such circumstances, the court reasonably qualified the relationship of the disputing parties as borrowed and rightfully refused to satisfy the plaintiff’s stated demands.”<3>.

———————————

<3>Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District of July 20, 2006 in case No. A43-46558/2005-27-1253/2-5-557.

4.According toclause 6 art. 582 The Civil Code of the Russian Federation does not apply to donations a number of rules on the gift agreement, including Art. Art. 578And581 Civil Code of the Russian Federation.

Of particular importance is the fact that the obligation to provide a donation does not pass from the donor to his legal successors, in contrast to the general provisions on the promise of a gift in the future. Judicial and arbitration practice, in particular, confirms the fact that the obligations under the donation agreement lose force in the event of reorganization of the donor - a legal entity.

The Arkhangelsk Avtodor Highway Administration of the Arkhangelsk Region Administration (hereinafter referred to as the Arkhangelsk Avtodor Department) filed a claim with the Arkhangelsk Region Arbitration Court against the closed joint-stock company Lesozavod 25 (hereinafter referred to as Lesozavod 25 CJSC) for the recovery of 2,000,000 rubles in debt. under the contract dated March 20, 2001 N IP 686/01 for capital construction.

Before the decision was made, the plaintiff clarified the claims and asked the court to collect 2,000,000 rubles of debt arising as a result of failure to fulfill a monetary obligation under the work contract dated March 20, 2001 No. IP 686/01 for capital construction (as amended by the additional agreement dated January 26, 2001 No. 1) .

The claims were satisfied by the decision of the court of first instance.

By a decision of the appellate court dated April 25, 2005, the decision was canceled and the claim was rejected.

In the cassation appeal, the department asks that the decision of the appellate instance be canceled as adopted in violation of the norms of substantive and procedural law.

The cassator referred to the fact that when considering the case, the appellate court incorrectly interpreted the law (clause 6 of Article 582 of the Civil Code of the Russian Federation), and also independently went beyond the scope of consideration of the appeal, thereby violating the adversarial principle and the principle of equality of parties, placing the defendant in advantageous position.

However, during the trial of the case in the cassation court, no grounds were found to cancel the decision of the appellate court due to the following.

Between the management of "Arkhangelskavtodor" (customer), the open joint-stock company "Arkhbum" (hereinafter - OJSC "Arkhbum", investor) and the limited liability company "Severstroy" (hereinafter - LLC "Severstroy", contractor) a contract was concluded on March 20, 2001 N IP 686/01 for capital construction.

Under the terms of the said agreement, the contractor assumes obligations for the construction of a new highway "Leshukonskoye - Pinega", section "Highway No. 1 - border with Leshukonsky district", according to the project approved by the Arkhangelskavtodor department by order of January 28, 1998 N 9/01 -03.

Additional agreement dated December 26, 2001 No. 1 to the agreement dated March 20, 2001 established that the investors under the said agreement are Arkhbum OJSC, Tsiglomensky Timber Mill Limited Liability Company (hereinafter referred to as Tsiglomensky Timber Mill LLC) and CJSC "Sawmill No. 25".

Clause 4 is set out in a new wording, according to which, in particular, investor-2 (Tsiglomensky Timber Plant LLC) undertakes in December 2001 to make a voluntary, free donation in favor of a non-profit organization (Arkhangelskavtodor management) in the amount of 2,000,000 rubles (based on resolution of the board of directors of Tsiglomensky Timber Plant LLC dated November 20, 2001, minutes No. 2).

Tsiglomensky Timber Plant LLC did not fulfill this obligation.

According to an extract from the Unified State Register of Legal Entities dated October 1, 2001 N 04-03/4-15170 Tsiglomensky Lumber Mill LLC ceased to exist through reorganization in the form of merger with JSC Lesozavod N 25.

Based on the above, the Arkhangelskavtodor management filed a claim with the arbitration court against ZAO Lesozavod N 25 as the legal successor of Tsiglomensky Lumber Mill LLC for the recovery of 2,000,000 rubles.

According to paragraph 1 of Art. 582 of the Civil Code of the Russian Federation, a donation is the gift of a thing or right for generally beneficial purposes. In accordance with paragraph 2 of Art. 581 of the Code, the obligations of the donor who promised the gift pass to his heirs (legal successors), unless otherwise provided by the contract. However, by virtue of clause 6 of Art. 582 of the Code do not apply to donations. Art. 578 and 581 of the said Code.

Thus, the obligation of CJSC Tsiglomensky Sawmill to make a voluntary gratuitous donation to a non-profit organization (Arkhangelskavtodor management) in the amount of 2,000,000 rubles cannot be transferred to CJSC Sawmill No. 25 in connection with the reorganization of the former.

Based on the stated facts, the cassation court left the decision of the appellate court, which rejected the claim, unchanged, thereby confirming that the recovery of funds under the donation agreement from the donor’s legal successor as a result of the reorganization is impossible<4>.

———————————

So, summarizing the above examples of the application in arbitration courts of various levels of the norms of the Civil Code of the Russian Federation and other legal acts on the donation agreement, it should be stated that in recent years disputes related to this type of donation agreement have increasingly arisen as the subject of proceedings in judicial authorities. And judging by the number of judicial acts being overturned, there is a fairly large number of unresolved problems, which requires not only guiding clarifications from the highest judicial authorities, but also adjustments to the legislative framework.

Analyzing the proposals of specialists studying this issue, we can note the following main directions for improving the legal norms regulating donations.

1. It is necessary to distinguish between donations and grants. The grant agreement must be introduced as an independent type of transaction into the Civil Code of the Russian Federation, as well as other regulations, including those regulating scientific, educational and other activities of a social nature.

2. It is necessary to expand the list of grounds for canceling a donation to include non-use of the donated item by the recipient for a long period without good reason.

3. The provision of the Civil Code of the Russian Federation that the acceptance of a donation does not require the consent of third parties should be excluded completely or specified, since the application of this provision causes difficulties in practice.

Currently, it is difficult to find a field of activity in which there is no place for charity. Television and radio broadcasting, the media, the World Wide Web, culture and art, politics, economics and law, healthcare - sponsorship is present in all areas of the life of a modern person. Such multilateral activities can manifest themselves in different ways: in promotions, in order to attract funds, in advertising, in additional collection of donations. This is not only charity, but also support for various programs and projects.

Definitions of donation

The process of material resources for the use of legal entities and individuals is called donation. This is a specific term, distinct from gift, that denotes an optional payment as a sign of gratitude for some service or item purchased. Material contributions are made only from an internal motive to thank or provide support. Their amount is determined by the donor himself, depending on the state of his finances. Voluntary donations include not only money, but also useful household items, clothing, homemade products, and food.

How did it come about

The most popular example of alms today and historically the oldest is donations for creative performances. Spectators and listeners paid street performers (musicians, clowns, magicians, dancers) for their performances or watched for free. products of light industry during wars were of global scale. Material assistance in the form of food, clothing and money was provided by the rear to the soldiers of World War II. Humanitarian support to a number of countries where fighting is taking place, where there are financial and social difficulties, is currently coming from more stable and developed countries.

Types of sponsorship

Donor organizations provide non-repayable financial and technical support to those in need after a competitive selection process. Patronage is financial assistance from an individual from a personal account. Patrons patronize institutions of culture, science, art, education and health care. Legal entities and individuals can also donate funds through sponsorship.

Sponsors have some advantages in the form of advertising campaigns for their organization - they increase its recognition, competitiveness, and awareness in the media due to the donations they make. Various social projects and philanthropy are directly related to fundraising - collecting the necessary funds. Sources of additional contributions include private and public sponsoring organizations, donors, philanthropists, investors, and grant-giving institutions. They can provide financial assistance to companies, individuals, foundations, and government agencies.

What is a donation agreement?

This document is a special case of donation; its main feature is the generally beneficial purposes for which donations are made. This is a written certificate describing the obligations of the donor and the recipient. The legislation prohibits the conclusion of such agreements between business organizations. But if in the agreement only one party is a commercial institution, then it can act both as a donor and as a donee. For legal entities, the contract must be signed by the general directors.

What should be in the donation agreement

The preamble must indicate the persons who sign the document or their principals. The subject of the agreement defines the material benefits that are provided by the donor. He can donate movable and immovable property, securities, property rights, and funds. It also describes the items of the donation: amount, currency, quality, condition, everything that is related to the contribution. The next paragraph should specify the conditions under which the transfer takes place. This stipulates the time frame of the agreement, emergency situations (risk of death of one of the parties), a list of actions carried out when checking a donation, and the need to involve experts. The purposes for which the donation will be used are indicated below. It must necessarily relate to the common good, otherwise the document will be considered an act of donation. The clause specifies situations in which the donee may use the gift for other purposes, and the conditions for reporting.

The following section clarifies the circumstances of the amendment and termination of the contract. If the gift is not accepted, the donor has the right to request compensation if this is specified in the contract. He can cancel the transfer if the recipient fails to comply with the requirements described for the purposes of the contract. In the penultimate paragraph, the parties agree on actions in the event of disputes and the timing of their resolution in the chosen court. Disputes include conflicts based on the donor's demands, violations of agreements, improper use of donations and cancellation of the transfer of a gift. The final part establishes the moment the document enters into legal force and the duration of its validity. If the parties have not determined the terms, then the agreement will be valid until the end of the donor and recipient’s obligations.

Using Crowdfunding

In the era of developed information technologies, it is not at all necessary to set up a donation box to collect funds. Crowdfunding plays an important role in the creation of various projects in the information sector. Its essence is that a group of people or an entire community raises money to finance a startup, be it games or software. They can also support small businesses and private businesses, help those affected by natural disasters, support political and social actions, and take part in the creation of cultural, scientific and art objects. In turn, investors receive preferential rights to a particular product that they sponsored: early access to the program, exclusive publication of a book, exclusive attributes of the project, reduced cost of the final product, etc. Comics, video games, movies, music - the entire entertainment industry is built on donations from people interested in it. Creative, scientific, and production projects are mostly implemented thanks to crowdfunding.

Benefits of Crowdsourcing

The subject of donation in a general sense can be not only material resources, but also human resources: intellectual and creative. Infocommunication technologies allow people from all over the world to unite and work together on a common project, connecting individual abilities. For example, in this way it is possible to develop open software, the design and functionality of which will be contributed by specialists of various categories completely free of charge. The world-famous Internet encyclopedia, Wikipedia, also operates through volunteers and with the help of crowdfunding. The main advantage of crowdsourcing is that many promising and talented personnel from different countries are involved in the work on the project, and it does not matter what nationality they are or what professional training the volunteers have when starting work.

Contemporary Donations

Basically, donations of our time represent free access to information products, the use of which involves an arbitrary payment or free copying. Many musicians, whose work has a devoted audience, organize tours and release albums using funds collected from fans. Writers and directors, technicians and scientists find a response to their projects from the interested public and implement them. Developers of low-budget or unfinished games collect donations for further development also on the principle of crowdfunding. Various donation organizations place a “Donate” button on their websites, which allows any user to financially support their activities.

The main advantage of charity

Most people have an altruistic character; by nature they are drawn to helping those in need and to creating better living conditions. There is an economic term "warmth of altruism" which explains the joy of a person in the process of transferring his finances for the benefit and benefit of others. Therefore, when giving, the donor experiences moral satisfaction with his action. Charity and donations bring joy to both the giver and the receiver.

1. A donation is the donation of a thing or right for generally beneficial purposes. Donations can be made to citizens, medical, educational organizations, social service organizations and other similar organizations, charitable and scientific organizations, foundations, museums and other cultural institutions, public and religious organizations, other non-profit organizations in accordance with the law, as well as to the state and other entities civil law specified in Article 124 of this Code.

2. Accepting a donation does not require anyone's permission or consent.

3. The donation of property to a citizen must be, and to legal entities may be conditioned by the donor on the use of this property for a specific purpose. In the absence of such a condition, the donation of property to a citizen is considered an ordinary donation, and in other cases the donated property is used by the donee in accordance with the purpose of the property.

A legal entity accepting a donation for which a specific purpose has been established must keep separate records of all transactions involving the use of the donated property.

4. Unless a different procedure is established by law, in cases where the use of donated property in accordance with the purpose specified by the donor becomes impossible due to changed circumstances, it can be used for another purpose only with the consent of the donor, and in the event of the death of the citizen-donor or the liquidation of a legal entity person - donor by court decision.

5. The use of donated property not in accordance with the purpose specified by the donor or a change in this purpose in violation of the rules provided for in paragraph 4 of this article gives the right to the donor, his heirs or another legal successor to demand cancellation of the donation.

6. Articles 578 and 581 of this Code do not apply to donations.

Commentary to Art. 582 Civil Code of the Russian Federation

1. A special type of gift - donation - has been returned after a long break to Russian civil legislation to provide legal support for charitable activities. Only non-profit organizations, as well as the Russian Federation, its constituent entities and municipalities can act as recipients in such an agreement.

The donation can be an item or a claim. In the near future, the definition of donation may be legislatively expanded to include the possibility of gratuitously performing work and providing services for generally beneficial purposes. This innovation is especially significant for the acceptance of donations by state and municipal organizations, since in accordance with the current procedure, in order to perform donated works and services in their interests, the organization of competitive procedures is necessary.

Donation agreements are subject to all the provisions of Chapter. 32 of the Civil Code of the Russian Federation, including the need to obtain the consent of the donee to receive a gift, compliance with prohibitions and restrictions on making a gift. To express the will of the donee himself to accept a gift, no one’s permission or consent is required. Transactions that mediate property donations can be discredited only on the general grounds of invalidity of transactions. Thus, the owner of the institution does not have the right to object to the latter’s acceptance of the donation as such, but may seek to apply the consequences of the invalidity of such a transaction if the transfer of the gift is conditioned by its use for purposes and in ways contrary to the charter of the institution.

The need for the donee to express his will to accept a donation is all the more obvious since the use of property for its intended purpose may be associated with certain inconveniences for him (in particular, for legal entities this is, at a minimum, the obligation to maintain separate records of all transactions involving the use of the donated property).

2. The obligatory indication of the purpose of the use of the gift when donating to an individual and the optionality of this rule in relation to legal entities are due to the presence of the legal entities listed in paragraph 1 of the commented article, special (unlike citizens) legal capacity, which allows the donor to initially understand the direction of their activities.

3. The law does not directly provide for the obligation of a person who has accepted a donation with the condition of using it for a specific purpose to carry out such activities for an unlimited period. Taking into account what was said earlier about the nature of the gift agreement, in particular about the absence of obligatory relations between the donor and the donee after the transfer of the gift, it is necessary to recognize the right of the new owner of the property to dispose of it at his own discretion (the subject of the right of operational management - in accordance with the rules of Article 296 of the Civil Code), including through his alienation. The latter, however, can be regarded by the donor as using the donation not in accordance with the intended purpose, which will give him the right to demand the cancellation of the donation on the basis of clause 5 of Art. 582 of the Civil Code of the Russian Federation (on the consequences of the impossibility of claiming a gift in kind after the cancellation of the donation, see paragraph 3 of the commentary to Article 578 of the Civil Code). If a person who has accepted a donation under certain conditions deliberately uses it solely for the purpose of quickly extracting useful properties with subsequent depreciation and the inability to carry out the donor’s instructions, his actions may be considered as using the donated not in accordance with the specified purpose or as an abuse of right (Article 10 of the Civil Code ).

In practice, donations mainly take place in favor of organizations systematically engaged in generally beneficial activities, whose ability to use the donation for other purposes is significantly limited.

4. The refusal of the donor or the court to use the donated property for another purpose in the cases provided for in paragraph 4 of the commented article should entail the return of the property preserved in kind to the donor or his heirs.

Article 582. Donations

• checked today
• code dated 10/01/2019
• entered into force on 03/01/1996

There are no new articles that have not entered into force.

Compare with the edition of the article dated 09/01/2013 01/11/2007 03/01/1996

A donation is the donation of a thing or right for generally beneficial purposes. Donations can be made to citizens, medical, educational organizations, social service organizations and other similar organizations, charitable and scientific organizations, foundations, museums and other cultural institutions, public and religious organizations, other non-profit organizations in accordance with the law, as well as to the state and other entities civil law specified in Article 124 of this Code.

No one's permission or consent is required to accept a donation.

The donation of property to a citizen must be, and to legal entities may be conditional on the donor using this property for a specific purpose. In the absence of such a condition, the donation of property to a citizen is considered an ordinary donation, and in other cases the donated property is used by the donee in accordance with the purpose of the property.

A legal entity accepting a donation for which a specific purpose has been established must keep separate records of all transactions involving the use of the donated property.

Unless a different procedure is established by law, in cases where the use of donated property in accordance with the purpose specified by the donor becomes impossible due to changed circumstances, it can be used for another purpose only with the consent of the donor, and in the event of the death of the citizen-donor or the liquidation of a legal entity - donor by court decision.

The use of donated property not in accordance with the purpose specified by the donor or changing this purpose in violation of the rules provided for in paragraph 4 of this article gives the right to the donor, his heirs or another legal successor to demand cancellation of the donation.

Articles do not apply to donations