In the case of gifts among the living, the question of liberal intent and acceptance on the part of the beneficiary, which is common in civil and customary law, arises again. In addition, a sale of the property must take place in favor of the recipient. On the other hand, civil law requires that an irrevocable transfer of ownership to the beneficiary take place, while the common law rather requires that the recipient be transferred to possession of the donated property. In one case, the right is transferred, while in the other case, the property itself is transferred. This difference is the result of a difference in the concept of property rights between the two systems. This distinction is mitigated or even eliminated if the donation is made by a formal act or instrument under seal. With respect to gifts in disguise, they are only permitted in civil law, since the common law takes into account the type of act that the gift would contain and not its effect. Thus, a sale below the market value of the property at common law continues to be considered a sale,[90] even though in civil law the difference between the value of the property and the amount of consideration paid may be donated. The same rule applies to indirect donations.
In India, there used to be a donation tax law that required the donor to pay donation taxes on the amount of the donation. However, the said Act was abolished and, as of the financial year 2004-05, a new provision was inserted into the Income Tax Act (1961) under section 56(2), which provides that if the gift is received from an undivided Hindu individual or family of relatives by blood or at the time of marriage or as heir or with a view to death, it will not be taxable. In all other cases, if the amount of donations received exceeds Rs 50,000 per year, the donation is taxable as income from other sources. An absolute beneficiary is a designation of a beneficiary that cannot be changed without the written consent of that beneficiary. This term is often used in the context of an insurance policy when a beneficiary is named. The terms of the policy or agreement determine whether the beneficiary is absolute or can be changed. Under the common law, the property must be transferred to the possession of the receiver while the donor is still alive, but the gift becomes irrevocable upon death. A similar civil gift would be invalid because it would be made mortis causa.
Therefore, the two institutions are very different. Another alternative to an absolute gift is to provide a property with a “lifetime interest” or a “right of occupation”. This is often a good solution for a testator who has competing interests, such as someone who has remarried and has children from a previous relationship. The testator may grant his new spouse a lifetime interest in his property, but provide that his children will receive this property on the death of his spouse. There are obvious benefits to leaving absolute gifts in a will. An absolute gift is an essential part of the inexpensive and easy-to-prepare “simple will.” An absolute gift should be easy to understand (for example, “I give my amethyst and diamond ring to my granddaughter Florence…” “) so that a testator can be sure that the gift will be passed on to the recipient with little effort or inconvenience. The designation of absolute beneficiaries is common in divorce or liability cases where part of the settlement is the designation of a particular person as the beneficiary. This gives the beneficiary a significant sense of security, knowing that they are unlikely to be deprived of the payments or benefits to which they are legally entitled. This certainty is based on the fact that it would be very difficult and probably impossible for the other party involved in the case to subsequently try to make changes to the terms of the agreement relating to the beneficiary. As a final note, services are generally not considered goods and therefore cannot be the subject of a gift transfer.
But it is clear, I think, that it must be a “gift”, that the transferred asset was transferred voluntarily and not on the basis of a contractual obligation to transfer, and that the transferor did not receive any benefit of a material nature through the return. [58] Civil law limits gift mortis causa to marriage and requires the existence of a marriage contract concluded in an appropriate legal form to be valid. Only spouses, future spouses, their spouses and their respective children can benefit from such a gift. In addition, a donation among living persons of a donor during a disease considered fatal is void, subject to a few exceptions, since it has been made mortis causa. [87] The term “gift” is translated as a gift in the Income Tax Act. This is one of the translations that has been accepted for the common law in French, the other is the gift. [57] Therefore, again, there are no terminological problems associated with the use of the term “gift.” A final gift, acquired, that is, an absolute transfer made with the intention of making a donation. Thus, a gift is the voluntary and unpaid transfer of property. [59] In addition, the donor cannot, directly or indirectly, derive any personal benefit in return for the transfer. [60] The gesture must be completely unnecessary and reflect the donor`s liberal intention towards the recipient. Three conditions must be met for a gift to be valid among the living. [66] The first is that the person making the transfer does intend to make a donation; It must be proved that the donor`s purpose was to make a donation when transferring ownership.
[67] With respect to the manual gift applicable to movable property, it appears that the gift of personal property is similar at common law, as both require that a delivery be complete. Again, there is a difference, since in civil law, delivery concerns the right to the transmitted item and not the item itself. Therefore, the delivery of a cheque is a sufficient reserve of movable property in civil law,[88] whereas the cheque should be presented for payment and cashed for the gift to be complete at common law. [89] The need for a liberal intention to ensure the validity of a gift/gift is a required element of both customary and civil law. The donor may not receive any consideration or consideration, even indirect, or it will not be considered a gift.
