Promise of gift by reason of death
What are promises of death?
Pursuant to Section 2301 (1) of the German Civil Code (BGB), a promise to make a gift upon death is a promise to make a gift which is made on the condition that the donee survives the donor.
Such a gift is subject to a condition precedent in accordance with Section 158 (1) BGB. This means that the gift is not made until the corresponding condition is fulfilled.
Example of a promise to make a gift by reason of death:
„Only if you outlive me shall you receive my jewellery as a gift. If you die before me, you will receive nothing.“
What form does the promise to donate need to take?
Pursuant to Section 2301 (1) sentence 1 of the German Civil Code (BGB), the provisions on dispositions mortis causa apply to the promise to make a gift mortis causa. A promise to make a gift therefore requires the form of a will.
Can a gift that has already been made be made subject to a survivorship condition?
Within the meaning of Section 2301 (2), a gift that has already been executed can also be made subject to a survival condition. In this case, gift law applies. The donor has already gifted the object to the donee. However, this gift is made subject to a condition subsequent in accordance with Section 158 (2) BGB. This means that once the condition has been fulfilled, i.e. the death of the donee, the cause of the gift has ceased to exist due to the fulfilment of the condition and the donee is unjustly enriched. As a result, the object of the gift must be returned to the donor or their heirs.
What is the difference between an unconditional and a conditional gift?
In principle, it must be said that an unconditional gift is not a promise to make a gift upon death within the meaning of Section 2301 BGB. This is because the latter requires the setting of a survival condition. In the case of an unconditional promise to make a gift, the fulfilment of the contract is postponed until the death of the donor. This is not a condition, but a time limit.
The difference between a condition and a time limit is as follows: If the donor wishes to make the gift dependent on a fixed date, this is to be seen as a time limit. If, on the other hand, the donor wishes to make the gift dependent on an uncertain event, namely whether the donee survives the donor, this must be assumed to be a condition.