Hvaležnost obdarjenca – pravna in moralna obveznost

slovenian

2022

Univerza v Ljubljani, Pravna fakulteta
(Obvezni izvod spletne publikacije)

The expected (and required) gratitude of a donee justified by the gratuitous nature of the donation contract is most clearly shown in the form of revocation of a gift due to severe ingratitude. The donor may revoke a gift contract due to severe ingratitude if, after its conclusion, the donee behaves towards them or their close relations in such a way that it would be unfair according to basic moral principles for the donee to keep the gift. Given the difficulty of defining the gift and the inconsistency of the regulation of gifts and gratuitous legal transactions in comparative law, it is not surprising that practical difficulties exist with gift revocations due to ingratitude. These are a consequence of an undefined theoretical basis and are most pronounced in remunatory gifts, gifts given out of other special inclinations, and in circumstances where the donee has already fulfilled their moral obligation of gratitude. The sociological and anthropological conclusion is that the social phenomenon of giving, receiving, and returning gifts depends on the context (circumstances) of the case, and above all on all the complexities of the relationship between a specific donor and a specific donee. Legal systems seem to be unsuccessfully trying to apply general contract law (market) regimes to gifts, which are undoubtedly non-commercial and thus, in essence, a non-contractual category. The special rules, which are supposed to reflect the specificity of gifts as gratuitous legal transactions, could be seen as merely an expression of the distrust of gifts by the law. The essentially unanswered question is whether this distrust is justified or is merely the result of outdated historical theoretical foundations.

18.04.2023