Explanation of Article 367
The first paragraph clarified the validity of the donor stipulating a certain obligation on the donee; this does not change the contract from being a gift contract. It may be for the benefit of the donee, such as gifting money on the condition that it is spent on his education, or it may be for the benefit of the donor, as stipulated in Article (374), which is to gift something that is pledged as security for a debt owed by the donor, obligating the donee to pay the debt within the limits of the gifted value. The condition may also be for the benefit of a third party, such as gifting money on the condition that the donee takes care of his parents or educates his children.
In all these cases, the condition may be explicit or implicit, inferred from the circumstances; for instance, the gift is based on a reason inferred from the circumstances that the donor gifted the money for that reason.
The second paragraph clarified that if the donor stipulates compensation from the donee in return for the gift, the contract is a barter, even if it is called a gift; because the essence of contracts lies in their purposes and meanings, not their words and structures. If the compensation for the gift is money, the contract is a sale; if it is something other than money, the contract is a barter. The compensation may be allowing the donor to benefit from something, making the contract a lease, and so on.
It is necessary to distinguish between a gift contract that takes the rule of barter and a gift contract that involves an exchange not taking the rule of barter, such as:
- Reciprocal gifts, like those during occasions and holidays, where each gift is independent of the other and not compensation for it; thus, they do not take the rule of barter.
- If the contract includes trivial compensation such that it is certain the contracting party did not conclude the contract to obtain that compensation, the contract is a gift even if called a barter, and the rules of gifts apply to it, including formal or tangible conditions.
- If the compensation is not trivial but its value is less than the value of the gift, the contract is formally a barter; thus, it does not require the formal or tangible conditions of a gift. However, substantively, it depends on what the circumstances indicate; it may become clear that the contracting party intended to donate and favor in the compensation, so the donation or favor portion takes the rule of donation, making the contract a combination of barter and donation. It may also become clear that there is a deception in the contract, so the deception portion does not take the rule of donation.
Related To
Article 367
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A donor may require the donee to perform a specific obligation.
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If the donor requires a consideration from the donee, the contract shall be deemed a commutative contract and shall be subject to the provisions governing commutative contracts as per the nature of the consideration.