Explanation of Article 366
The article defines the contract of gift, and from this definition, the characteristics of the contract are evident, which are:
First: It is a contract of ownership, as the donor grants ownership of the gift to the donee under the contract of gift. The gift may be a real right, such as the right of ownership, usufruct, or easement, or a personal right, as in the assignment of a right if it is without compensation. This distinguishes the contract of gift from other donation contracts that do not involve ownership, such as lending, deposit, or agency without a fee. The expression in the definition of "ownership" implies that the contract of gift in this respect is like a contract of sale, as it generally requires the transfer of ownership of the specified gift upon its conclusion.
Exceptions to this principle include: A- A gift specified by type, whose ownership does not transfer until it is segregated. B- When the system requires a specific procedure for the transfer of its ownership; the contract's conclusion alone is not sufficient, and the procedure must be completed. C- If the transfer of ownership of the gift is contingent upon a suspensive condition, it does not transfer until the condition is fulfilled. In these three cases, the contract of gift does not result in the transfer of ownership but imposes an obligation on the donor to transfer the ownership of the gift.
Second: The ownership occurs during the lifetime; thus, the contract of gift is between living persons, distinguishing it from a will.
Third: The ownership is without compensation; the contract of gift is a donation contract, as it is a pure impoverishment from the donor's side and a pure enrichment from the donee's side. This distinguishes the contract of gift from other ownership contracts such as sale, barter, and settlement, which are exchange contracts. It also distinguishes it from a loan contract; a loan involves the transfer of money ownership but is not a pure impoverishment, as the borrower is obliged to return the loan equivalent at the end of the contract. However, the donor may impose a specific obligation on the donee, as will be mentioned in Article (367).
Once the contract meets the previous characteristics, it is a contract of gift, regardless of the purpose for which the donation was made; it may be for the purpose of drawing closer to God, called charity, or for the purpose of affection and love, called a gift.
The definition's text stating that the gift is a contract confirms the application of general contract rules to the contract of gift, except for what is excluded; based on this:
1- The gift does not conclude except by offer and acceptance, and the requirement of additional conditions for the gift contract, whether formal or material, does not negate the need for offer and acceptance. The rules for offer and acceptance apply to it, and they can be explicit or implicit; for example, the delivery and receipt of a movable item may indicate the intent of gifting, thus concluding the contract without the need for verbal expression.
2- The contracting parties must have the capacity to contract; a gift from a discerning minor is not valid if it does not involve a commitment beneficial to him. If it involves a commitment on the donee that benefits the donor and he is a discerning minor, it is valid and subject to annulment for his benefit. Acceptance of a pure gift by a discerning minor is valid, and if it involves a commitment on him, his acceptance is valid, and the contract is subject to annulment for his benefit.
3- If a promise of a gift is made, the promise is not binding unless the essential matters and the period for concluding the gift contract are specified, and the conditions for the gift contract are met at the time of the promise, including the requirement to document the promise according to the system's provisions. Documenting the promise does not substitute for documenting the gift contract when it is executed or the receipt of the gift if it is movable.
4- The gift must meet the conditions for the subject matter, which are that it must be possible in itself, not contrary to public order, and specified by itself, type, and quantity, or capable of being specified.
5- The defects of consent apply to the contract of gift, making the contract subject to annulment.
6- The effects of the contract of gift arise immediately upon its conclusion; neither party can rescind or modify the contract except by agreement or by system provision. If the gift contract is documented without delivery, or delivery occurs in a movable gift without documentation, the donor cannot retract the gift except in the cases specified in the system.
Related To
Article 366
Gift is a contract under which a donor, during his lifetime, transfers to a donee the ownership of a property without consideration.