A gift, which creates a gratuitous benefit, does not establish a permanent balance between the parties at the moment it is concluded. In the face of certain developments that arise later, equity requires that the benefit be capable of being revoked. Some of these developments originate from the donee: conduct in which they ought not to have engaged, or the failure to perform an obligation they have assumed. The others are fundamental changes in the donor’s financial position.
Rather than gathering the matter into a single provision, the legislature has regulated the revocation of completed gifts and the withdrawal from a promise of a gift that has not yet been performed under two separate headings. In practice, revocation and withdrawal from a gift are two expressions describing the same institution. Since this power is strictly personal, it cannot be assigned and as a rule does not form part of the estate; the law allows the heirs to exercise the power only in a limited number of cases. The one-year period running from the moment the ground is learned of is, for its part, a preclusive period.
In this briefing note we address the nature of the power of revocation, the grounds for withdrawal provided for in the law, the regime governing time limits, the position of the heirs, and the situation in which a promise of a gift lapses automatically. The formation of the contract and its types are a separate subject that should be examined under the heading Contract of Gift.
Legal Nature of the Power of Revocation
Revocation falls within the category of formative rights. Where it is used in the narrow sense, a declaration of intent previously made is prevented from taking effect; the party making the declaration prevents it from producing consequences. In revocation in the broad sense, however, what is set aside is not the declaration but the legal transaction itself as concluded; in this respect the power operates only in contracts imposing obligations on one party alone.
A further distinction between the two forms arises in respect of grounds. Whereas revocation in the narrow sense requires no reason to be given, revocation in the broad sense can produce effect only if it is based on a ground provided for in the law. Since a declaration of revocation is a unilateral declaration of intent that must reach its addressee, it takes effect the moment it enters the addressee’s sphere of control and sets the transaction aside with retroactive effect.
Revocation in Hand-to-Hand Gifts and Performed Promises of Gift
The occurrence of one of the grounds examined below allows the return of the subject matter of the gift to be demanded. The scope of the obligation to return is nevertheless limited: what is to be returned is the part of the benefit still present in the donee’s assets. If the benefit has left no counterpart in those assets, there is no element that may be claimed.
Commission of a Serious Offence Against the Donor or Their Relatives
The first of the grounds is the commission by the donee of an offence of a serious nature against the donor or against one of the donor’s relatives. What is required here is that the offence should have been committed at a date subsequent to the conclusion of the gift.
For this ground to be relied upon, it is not necessary that there be a judgment of conviction against the donee, nor even that a prosecution have been commenced. According to the prevailing view in the doctrine, a failure to exercise the right to file a criminal complaint likewise does not extinguish the power.
Although the wording of the law emphasises the seriousness of the offence, it is accepted in the literature that this seriousness is not decisive. In line with this understanding, infringements directed at mental and bodily integrity, attacks on reputation and honour, and coarse and harsh words together with disrespectful conduct may also be regarded as capable of grounding revocation.
It is generally accepted that the notion of a relative should not be interpreted narrowly; a fiancé or fiancée or very close friends who share no blood tie with the donor may also fall within this scope.
Material Breach of Obligations Arising from the Law
The second ground is a material breach by the donee of the obligations arising from the law towards the donor or a member of the donor’s family; in such a case the return of the subject matter of the gift may be demanded.
Only obligations of significance fall within the scope of the provision, and the assessment of whether an obligation reaches that level rests with the judge in each dispute. The conduct of a spouse who acts contrary to the duty of fidelity is generally assessed under this heading.
By contrast, the exercise of powers directly conferred by the law does not produce the same result. Bringing an action for divorce or applying to the court with a claim for alimony are rights of that kind and do not constitute a ground for revoking a gift.
Non-Performance of the Charge in a Gift Subject to a Charge
In a gift subject to a charge, if the donee fails to perform the charge without just cause, the donor may claim its return. What is decisive is whether the non-performance rests on a justified reason. In the following cases non-performance of the charge is regarded as justified and the gift may not be withdrawn from:
- That the value of the subject matter of the gift is higher than the expenditure required by the charge
- That performance of the charge has become impossible without fault
- That the donor has personally prevented the charge from being performed
A charge does not have the character of a performance constituting the counterpart of the gift. Even so, it is accepted in the literature that an appropriate additional period should be granted to the other party before the power of revocation is exercised.
Withdrawal and Refusal to Perform in an Unperformed Promise of Gift
Where one of the grounds listed above occurs, a promise of a gift that has not yet been performed may likewise be revoked. In addition to these, the law grants two further possibilities in respect of an unperformed promise alone.
The first concerns the financial position: a donor whose economic circumstances have changed to such an extent that they can no longer meet the promise given may withdraw from a promise not yet performed.
The second concerns family obligations: if, after the promise was given, new family obligations have fallen upon the donor’s shoulders and their economic circumstances have worsened, the promise may be revoked. The most typical example given for this situation in practice is that the person who gave the promise of a gift subsequently has a child.
Grounds for Revocation Outside the Provisions on Gifts
The grounds addressed thus far are regulated within the provisions relating to the contract of gift. Certain institutions found elsewhere in the legislation also result, in effect, in the revocation of the benefit.
An action for annulment based on defects of intent such as mistake, fraud or duress, an action for abatement, a request for annulment of the gift on an allegation of simulation, and the return of gifts upon the breaking off of an engagement all fall within this scope. In each of them the gift is revoked through a mechanism outside its own provisions. The subject should be addressed separately under the heading Invalidity of a Contract on Grounds of Mistake, Fraud and Duress.
Time Limit for Exercising the Power of Revocation
The donor may revoke the gift within one year from the day on which they learned of the ground justifying revocation. This period is not a statute of limitations but is preclusive in nature; upon its expiry the power comes to an end entirely.
Power of Revocation of the Heirs
We noted above that the power is personal in nature and as a rule does not pass to the heirs. Nevertheless, in certain situations equity requires that the heirs too should benefit from this power; the law has made separate provision for this need.
If the donor dies before the one-year period granted to them has expired, the power passes to their heirs. The heirs may make a declaration of revocation until that period expires.
Where the ground was never learned of by the donor during their lifetime, the calculation operates differently: the heirs are granted a one-year period running from the date of death.
Finally, where the donor is killed by the donee, the possibility of revocation is likewise granted to the heirs. Since the law here expressly requires unlawfulness, the provision cannot be relied upon if a ground of justification such as self-defence exists. The liability of the heirs for the debts of the estate is the subject of the heading Liability of Heirs for the Debts of the Deceased.
Automatic Lapse of a Promise of a Gift
Turkish Code of Obligations No. 6098, Art. 296(2) provides that where the insolvency of the person who has given a promise of a gift is established or bankruptcy is adjudicated against them, the obligation to perform ceases.
In this event the gift lapses automatically; neither an action for annulment nor a separate declaration of revocation is required for that result to arise. A subsequent improvement in the assets does not change the picture, and a promise that has lapsed does not revive.
Frequently Asked Questions
May damages also be claimed if the charge is not performed?
Non-performance of the charge gives the donor the possibility of revocation only. The sole legal consequence arising in respect of the donee is the termination of the contractual relationship; no additional obligation to pay damages arises.
Is an action for divorce a ground for revocation?
A material breach by a spouse of their obligations towards the family may constitute a ground for revocation. However, bringing an action for divorce is a power conferred on the spouse by the law; neither a gift that has been made nor a promise that has been given may be revoked on that ground alone.
In which cases may the heirs exercise the power?
If the donor has died before the one-year period expired, or was unable to learn of the ground during their lifetime, the power passes to the heirs. A twofold distinction is drawn here: if the ground was learned of during the donor’s lifetime, the heirs may make the declaration until the end of the one-year period granted to the donor; if it could not be learned of, they may do so within one year from the date of death.
Is a separate declaration required in the event of bankruptcy?
It is not. In the event of bankruptcy the promise of a gift becomes ineffective automatically; there is no need for the person who gave the promise to make any further declaration to that effect.
Does the manner in which the marriage ends change the result?
According to the case law of the Court of Cassation, if the marriage has ended by reason of adultery, the gift that was made may be withdrawn from. By contrast, the ending of the marriage by reason of irretrievable breakdown is not regarded as a sufficient ground for revoking the gift.
Is renunciation of inheritance treated as a gift?
No. A gift is a bilateral legal transaction, whereas renunciation of inheritance is a unilateral one; because of this structural difference, renunciation is not treated as a gift.
Which court has subject-matter jurisdiction?
In these disputes subject-matter jurisdiction lies with the Civil Court of First Instance, and the fact that the benefit was conferred between spouses does not change the result. The 3rd Civil Chamber of the Court of Cassation adopted this approach in its decision dated 18.01.2018, docket no. 2017/17009 and decision no. 2018/356:
“As for the claim for the return of the jewellery presented at the wedding, where it is based on the legal ground of revocation of a gift pursuant to Article 295 of the Code of Obligations, the court with subject-matter jurisdiction shall not be the family court but, in accordance with the general provisions, the civil court of first instance.
Looking at the concrete case in this context, in respect of the claimant’s claims for the jewellery presented to the respondent woman at the wedding ceremony on grounds of recourse from the gift, having regard also to the explanations above, there is no doubt that the dispute between the parties arises from the Code of Obligations and that, in respect of these claims, the court with subject-matter jurisdiction is the Civil Court of First Instance. Subject-matter jurisdiction concerns public policy. It must be taken into account by the court of its own motion at every stage of the proceedings.”
Independent Legal Assessment
In these disputes the fate of the file is most often determined not by arguments on the merits but by the correct calculation of the time limit. Where the moment of knowledge that marks the start of the preclusive period cannot be documented, however strong the ground may be, the claim goes unanswered. The limitation of the obligation to return to the value remaining likewise, where the declaration is delayed, effectively removes the enforceability of the judgment.
Getting the characterisation right from the outset is no less important than the time limit; the same set of facts may be addressed separately within the framework of revocation, simulation and abatement. When a road map is drawn up, the following headings should be prioritised:
- Establishing the date on which the ground for revocation was learned of by means of correspondence, minutes or official records
- Clarifying whether the benefit was a hand-to-hand gift or an unperformed promise
- Analysing, in gifts subject to a charge, whether the non-performance rests on a justified reason
- Documenting in a provable manner that the declaration of revocation reached its addressee and, in the event of the donor’s death, determining the start of the period available to the heirs
- Weighing whether it would be more advantageous to advance the claim on the basis of abatement, simulation or a defect of intent
Independent Legal provides advisory services and litigation support in disputes arising from gifts, from the preparation of the declaration of revocation through to the conduct of the action for return.