Explanation of Article 369
The article clarified that the effects of the gift contract are not enforceable if it pertains to a specifically designated gift not owned by the donor unless the owner approves the gift contract. If the owner approves the contract, the effects of the contract are enforced, and its approval is considered a unilateral legal act subject to the general rules established in the first section of this system; thus, its effect is retroactive to the time of the contract, not the time of approval. The approval can be explicit or implicit, and the approver must have the capacity to donate at the time of approval.
If the approval is issued, the contract is executed without requiring acceptance from the donee, provided that the approval does not harm the rights of others. In the sale of another's property, the system requires that the approval does not harm the rights of others, and this is even more so in the case of a gift, which is a principle established in the general rules.
The non-enforcement mentioned in the article includes the non-enforcement of the contract against the contracting parties, the owner, and others unless approved. If the owner does not approve the contract, it is not enforceable against anyone; this distinguishes the gift contract from the sale contract. In the sale of another's property, the non-enforcement of the contract is limited to the owner only, not the contracting parties, and the buyer has the right to annul the contract, which is forfeited if the owner approves the sale or the ownership of the sold item reverts to the seller after the contract. In contrast, in the case of a gift, the contract is not enforceable without approval even if the ownership of the gifted item reverts to the donor after the contract, emphasizing the strictness in enforcing the gift contract due to its seriousness.
The provision of the article is considered an exception to Article (94) in the general rules regarding the effects of the contract, which stipulates that the rights created by the contract are established immediately upon conclusion.
The non-enforcement of the gift contract does not preclude the donee's right to compensation for any damage incurred as a result, in accordance with the rules of liability for harmful acts.
The provision of the article does not apply to gifts designated by type, as the owner of the type-designated item is not determined at the time of the contract to require their approval. Thus, if a person gifts another a sum of money or a car designated by type, not specifically, and documents the gift contract according to the system, and the donor does not own the gifted item at the time of the contract, the contract is valid and enforceable without requiring anyone's approval.
Related To
Article 369
A gift contract shall not be enforceable if the gift is not owned by the donor, unless the owner ratifies such contract.