Explanation of Article 376
The article addresses the cases in which the donor may revoke their gift after it has been concluded, i.e., if the revocation occurs after the contract has been documented or after the donee has received the gift, as per the conditions outlined in Article (368). However, before receipt and before the contract is documented, the contract is not concluded, and the donor has no obligation at all.
The first paragraph clarifies that revocation is permissible by mutual consent between the contracting parties; the donor may revoke their gift if the donee agrees to return the gift. In this case, the revocation is by offer and acceptance, like any legal transaction, and is subject to the general rules in this regard.
If the donor does not have the right to revoke in the cases specified in the second paragraph, the donee's acceptance to return the gift to the donor is considered a donation, as they are not obliged to do so but accept the return voluntarily. This action is subject to the substantive rules of donation; thus, the donee must have the capacity to donate when accepting the return. Creditors have the right to challenge the validity of the transaction under certain conditions, as do heirs if the donee is terminally ill, among other rules. However, formal conditions are not required, as this action is a return of the gift, not a new transfer of ownership.
The second paragraph explains the ruling if the donor revokes their gift and the donee does not accept the return of the gift; the donee cannot be compelled to return it, as the default is that the gift results in the transfer of ownership, and thus cannot be revoked. The paragraph lists three exclusive cases where the donor has the right to revoke their gift and request the court to compel the donee to return the gift. These cases are:
A- A parent revoking their gift to their child if there is justification for it; this ruling is based on a previous prophetic tradition and is specific to the direct parents, not grandparents.
The right of a parent to request the revocation of a gift is not absolute but is contingent upon the existence of justification for the request. The donor must prove an excuse for their request, and this excuse must be sufficient for the court to rule in favor of revocation, such as a disability that occurred to the donor parent after the gift, rendering them unable to work while the donee child is wealthy. Whether the excuse claimed by the donor is sufficient to justify revocation falls within the discretionary power of the court; if not, the donor cannot revoke the gift, as the default is that the gift is a transfer of ownership without revocation.
B- The donor stipulates for themselves the right to revoke the gift in a specific case or cases, such as stipulating the right to revoke if they have a child, need medical treatment, or suffer a disability that prevents them from working. This condition must be made at the time of the contract; otherwise, they have no right to revoke, and the purpose must be legitimate. The purpose is considered illegitimate if it contravenes public order.
C- If the gift is explicitly or implicitly conditional upon an obligation on the donee as outlined in Articles (36) and (373), and the donee fails to fulfill that obligation.
The implicit condition in the gift may be inferred from the motivating reason for it; the gift is established by its existence, and the donor has the right to request revocation upon its removal (12).
It should be noted that the right to revoke in the cases specified in the second paragraph is contingent upon the absence of a waiver of this right as outlined in Articles (377, 379, 380). Additionally, the donor's right to revoke does not preclude their right to request the annulment of the contract as established in the general rules.
Related To
Article 376
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The donor may revoke his gift if the donee agrees to return the gift.
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If the donee refuses to return the gift, the donor may file a petition with the court in the following cases:
a) If the gift is made to a child by one of his parents, if revocation is justified.
b) If the donor reserves to himself the right of revocation in specific cases where the purpose for revocation is legitimate.
If the gift is explicitly or implicitly conditional upon the performance of an obligation and the donee fails to perform such obligation.