Has made a contract to donate land but has not yet transferred the name, can it be canceled in Vietnam?

Here is a typical case when the donor does not want to continue to donate the property. Specifically: In the judgment 144/2017/DS-PT dated August 17, 2017 of the People's Court of Binh Duong province, the public appellate hearing of the dispute over the contract for donation of land use rights between plaintiff Ms. Thi D and defendant Ms. Tran Thi Y.

On June 14, 2010, Ms. Y and Ms. D made a written agreement that Ms. Y agreed to give Ms. D a part of the land area and agreed to allot the land after 01 month from the date of making this agreement, in the written agreement and fingerprinted by the donor as Ms. Y and the donor as Mrs. D. After the two sides made an agreement, Ms. D repeatedly reminded Ms. Y and asked Ms. Y to fulfill her commitment, but Ms. Y did not. The two parties make a written agreement that is not notarized or authenticated by a competent state agency. Now, Ms. D asks Ms. Tran Thi Y to continue to donate land use rights according to the agreement made on June 14, 2010.

The trial panel did not accept Ms. Pham Thi D's petition against Ms. Tran Thi Y about the dispute over the contract for the donation of land use rights on the grounds that the contract had not been notarized or authenticated. Declaration of "agreement paper" for land use right on June 14, 2010 is invalid.

Compared with the provisions of the civil law specified in Article 467 of the Civil Code 2005 (now Article 459 of the Civil Code 2015 ) on the donation of real estate property, the Court has applied the following:

Article 459. Gifts of immoveable property

1. A gift of immoveable property must be recorded in writing and notarized or certified, and must be registered if the law on immoveable property requires registration of ownership...

Through the case, we can see that the contract for donation of land use rights between Ms. D and Ms. Y does not meet the conditions of the contract's form, and is not notarized or authenticated by a competent agency or organization. Therefore, the contract for gifting this land use right is void.

Therefore, when they do not want to perform the donation contract or if they want to initiate a lawsuit at the competent People's Court, request the recipient to return the land use right, in addition to based on the form of the donation contract. If the donation is legal, you can still rely on the content of the donation contract to protect your interests in the following 2 ways (applicable to the case that the land use right has been transferred to the donor) :

First, the donor party fails to perform its obligations if the contract for donation of land use rights is a conditional donation contract.

In case, the contract for donation of the land plot is conditional, the donor has the right to reclaim the property when the donor fails to perform the assigned obligations under the donation contract. Specifically, Article 462 of the 2015 Civil Code provides:

Article 462. Conditional gifts of property

1. A giver may require a recipient to perform one or several civil obligations prior to or after the giving of a gift. The conditions for giving a gift must not contravene the law or social morals.

2. Where a recipient performs an obligation required to be performed as a condition to the giving of a gift and the giver fails to deliver the gift, the giver must pay for the obligation already performed by the recipient.

3. Where a recipient fails to perform an obligation required to be performed after the giving of a gift, the giver may reclaim the gift and demand compensation for damage.

When the contract for donation of land use rights is conditional but the recipient fails to fulfill the conditions and obligations under the donation contract, the donor has the right to reclaim the land use right and claim the land use rights. claim compensation in accordance with the law.

Second, the request to declare the donation contract void

Compared with the legal provisions from Article 123 to Article 129 of the Civil Code 2015, a contract for donation of land use rights may be invalidated in the following cases: Invalid due to violation of a prohibition of law, contrary to societal morality; invalidity due to forgery; invalidity established and performed by a minor, a person who has lost his/her civil act capacity, or a person with limited civil act capacity; void due to confusion, deception, threat; invalid because the founder is not aware of and controls his/her acts; invalid due to violation of regulations on the form.

The donor may base on the content of the contract of donation of land use rights to consider the possibility of invalidity as mentioned above, thereby requesting the court to force the grantee to the donation must return the land use right.

When a donation contract is declared invalid, it will not give rise to, change or terminate the civil rights and obligations of the parties from the time of its establishment. The parties will have to restore the original condition, returning to each other what was received.

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