You may be wondering…

• Can I gift a flat and stipulate that the donee cannot sell it?

• How is a condition different from an obligation in a gift agreement?

• What happens if the donee fails to meet the condition?

• Can a court invalidate or disregard such a condition?

Clients ask me…

Is conditional gifting valid at all?
Yes, the Civil Code allows a donor to gift with conditions. But only conditions that do not conflict with the law or good morals are valid.

What is the difference between a condition and an obligation?

• Condition – affects the very validity or effect of the gift (e.g. the gift is valid only if the donee completes their studies).

• Obligation (command) – imposes a duty on the donee without threatening the validity of the gift (e.g. to care for a grave).

What if the donee doesn’t fulfill the condition?
The gift may lapse, or the donor may gain a right to reclaim it. It depends on how the contract is drafted.

Conditional gifting in a nutshell

• Conditions are allowed if not contrary to law or good morals.

• Difference between condition and obligation lies in their impact on the contract.

• Non-fulfillment may lead to cancellation of the gift.

• Courts may examine whether the condition is fair and enforceable.

Main risks and mistakes

1. Conditions formulated too vaguely. (“The donee must be nice.”)

2. Conditions contrary to law. (E.g. prohibition of divorce.)

3. Mixing up obligation and condition. Poor drafting weakens enforceability.

4. Lack of evidence. If it’s unclear when the condition is fulfilled, it’s hard to prove.

Step-by-step process

1. Decide what you want to tie to the gift.

2. Draft the condition clearly and specifically.

3. Check that it does not conflict with law or good morals.

4. Put the condition in writing, especially for real estate.

Real-life example

A client wanted to gift her grandson a flat on the condition that he would not sell it for 10 years. The condition was clearly written into the contract. If he sold the flat earlier, the gift would lapse, and the flat would revert to the donor. Thanks to precise drafting, the contract is enforceable and protects the donor’s will.

Why to be cautious

Conditional gifting can be a useful tool, but poorly drafted conditions are often invalid. It’s crucial to have the contract prepared by a lawyer.

Lawyer’s recommendation

• Always draft conditions clearly and precisely.

• Avoid unenforceable or unlawful requirements.

• For real estate, always consult a lawyer.

Checklist:
☑ Condition is specific and measurable
☑ Not contrary to law or good morals
☑ Included in the written agreement
☑ Clear consequence in case of breach

FAQ

Can I include a prohibition on selling the gifted property?
Yes, but only for a limited time and if not excessive.

What if the condition is against the law?
The court may disregard the condition, but the gift itself remains valid.

How can fulfillment be proven?
Depends on how the condition is drafted – it must be objectively verifiable.