Gift promise on account of death

What is a promise of gift on account of death?

Pursuant to Section 2301 (1) of the German Civil Code (BGB), a promise to make a gift on account of death is a promise to make a gift which is made on condition that the donee survives the donor.

Such a gift is made subject to a condition precedent in accordance with section 158(1) of the Civil Code. This means that the gift is not made until the relevant condition is fulfilled.

Example of a promise to make a gift on death:
"Only if you survive me shall you be given my jewelry as a gift. In the event of your predecease, you will receive nothing."

What form does the promise of gift require?

Pursuant to Section 2301, Paragraph 1, Sentence 1 of the German Civil Code (BGB), the provisions governing dispositions on account of death apply to a promise to make a gift on account of death. Thus, a promise to make a gift requires the form of a will.

Can a gift that has already been made be made subject to a condition of survival?

For the purposes of section 2301(2), a gift that has already been executed may also be made subject to a condition of survival. In this case, the gift law applies. The donor has already made a gift of the object to the donee. However, this gift is made subject to a condition subsequent pursuant to Section 158 (2) of the German Civil Code. This means that when the condition has occurred, i.e. the death of the donee, the cause of the gift has ceased to exist due to the occurrence of the condition and the donee is unjustly enriched. This has the consequence that the gift object must be returned to the donor or his heirs.

What is the difference between an unconditional and a conditional gift?

Basically, it must be said that an unconditional gift is not a promise of a gift on account of death within the meaning of § 2301 BGB. This is because the latter requires the setting of a condition of survival. In the case of an unconditional gift promise, the fulfillment 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 lies in what the donor wishes to make the gift dependent on. If the donor wishes to make the gift dependent on a fixed point in time, 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 will survive the donor, this is to be assumed to be a condition.