A gift is a gratuitous contract that imposes obligations on one side: the donor immediately transfers something without payment to the recipient, who accepts it. Both parties agree to that transfer of ownership without consideration. Exceptionally, if the recipient refuses to provide maintenance that the donor needs, the gift may be revoked by a court under Article 227(1)(c) of the Obligations and Contracts Act. The moral duty becomes a legal duty to provide maintenance when the circumstances prescribed by law arise: the donor falls into lasting need and asks the recipient to provide maintenance. Need exists where, in the particular case, the donor\u2019s income, all their movable and immovable property and the resources that property could yield are insufficient to meet their ordinary basic human needs.<\/p>\n
Need for maintenance under Article 227(1)(c) must be lasting and continuing and must exist when the request for payment is made; changes in circumstances up to oral argument before the court must also be taken into account. To establish need, the resources the donor has or can use in the relevant months, expressed in monetary terms, are compared with the specific amount required for their individual needs. The statistical average monthly cost of maintaining one person during the period in dispute must be established. The court then adjusts that figure to the donor\u2019s specific needs, deciding which amounts to omit or revise. Monthly resources include wages, pensions, supplements, savings, sale proceeds, rents, realised profits and similar receipts, as well as additional income realistically available, such as rent or the sale price of other property. Any additional income-producing property must be specifically identified. The court determines whether it could actually be let, for what rent, and, where relevant, its market value if sold. See Decision No. 473 of 20 January 2012 in civil case No. 263\/2011, Fourth Civil Division of the Supreme Court of Cassation, reporting judge Albena Boneva. Delivered under Article 290 of the Code of Civil Procedure, it deals specifically with proof of the donor\u2019s need in a claim under Article 227(1)(c) of the Obligations and Contracts Act.<\/p>\n
For the claim to succeed, the claimant must establish by full affirmative proof all the elements of Article 227(1)(c) in conjunction with paragraph 5: the legal relationship arising from a gift contract between the parties; the donor\u2019s lasting need for maintenance; the donor\u2019s request to the recipient; the recipient\u2019s express or tacit refusal; and the recipient\u2019s ability to pay the maintenance requested after meeting their own expenses.<\/p>\n
The defendant bears the burden of proving the affirmative facts on which their objections are based.<\/p>\n
This article is not a legal opinion or legal advice concerning a particular situation or person. For assistance with a gift, a contract of gift, revocation or a related issue, consult a lawyer practising in this field.
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