20/07/2022 09:04

The contract without specify the conditions for the donation, Is the land being reclaimed?

The contract without specify the conditions for the donation, Is the land being reclaimed?

At present, most contracts for the donation of land use rights are signed without specifying the conditions for donation in the contract, but only an oral contract. Therefore, when a dispute occurs, it is difficult for the Court of Vietnam to recognize the conditions for gifting the land use right that are not included in the contract.

Specifically, in the Judgment 103/2018/DS-PT dated May 21, 2018 on the dispute over the contract for the donation of land use rights and claiming the value of property arising from the contract for the donation of land use rights, the content is as follows:

"The origin of the house and land located at 80 Le PH, VB ward, RG city, Kien Giang province is one that Ms. Bui Thi H used money from the sale of the resettlement house to receive the transfer from 2000. Until the 29th of October 2007, she was granted a land use right certificate in Bui Thi H's name. In 2007 Ms. H signed the land deed for Ms. Ly Thuy N (Mrs. H's daughter) with a commitment from Ms. N will take care of Mrs. H for the rest of her life. But from the day N was named in the land use right certificate, Mrs. N abused and did not take care of her as promised by Mrs. N.

Now, she asked the Court to cancel the contract of gifting her land use rights to Ly Thuy N, forcing N to return the house and land to her. At the first-instance court hearing, Ms. H withdrew part of her lawsuit claim, only asking Ms. N to pay half of the land use right value in the amount of VND 319,714,000, not asking for properties attached to the land."

The People's Court of Kien Giang province, based on Article 125, Article 126, Article 470 of the 2005 Civil Code of Vietnam, Precedent No. 14 dated December 14, 2017, made the following observations: Although Ms. N did not acknowledge that the parties had agreed on conditions for care and nurturing, Ms. H gave Ms. N the land use right which is Ms. H's only property. In addition, Ms. H was no longer employed. earn a living, living off the accumulated and nurtured money from children and grandchildren. Therefore, the fact that Ms. H believes that giving Ms. N the right to use land with conditions for care and upbringing is grounded. Therefore, the first-instance judgment determined that the contract for the donation of land use rights between Ms. H and Ms. N was a conditional donation contract.

However, the People's Procuracy of Kien Giang province said that: The judgment of the first-instance judgment is still emotional about the donation of land use rights, there is no other evidence to prove that the donation of house and land to Mrs. conditions must be attached. The content of the case is not consistent with the content of Precedent No. 14 dated December 14, 2017, so the application of precedent is not considered.

Precedent No. 14/2017/AL dated December 14, 2017 has the following contents:

“…
[12] Although the contract for the donation of land use rights does not specify any conditions, the above documents show that Mr. Quang Van P2 has to build a house for Mr. Quang Van P1 to live in and take care of Mr. Quang Van P1 and his parents. Mr. Quang Van P1.”

In the above case, there are two lines of opinion between the Court and the Procuracy, if both the first instance and appellate courts believe that the donation contract between Ms. H and Ms. N is a conditional donation, then The Procuracy said that this was just an ordinary donation contract and suggested that the Court reject the plaintiff's entire claim.

From a legal point of view, the contract of donation of land use rights between Mrs. H and Ms. N complies with regulations, and legal procedures and has taken effect. It is impossible for Ms. H to admit that there is a "condition" when signing the contract because the condition she offers is not shown in the gift contract or clearly stated in any related documents, so it is not H's testimony can be considered as a basis to determine that this is a conditional donation contract. Therefore, based on current legal regulations, it is difficult to recognize the above contract as a conditional donation contract.

Considering the circumstances in the precedent and in the above judgment there are many different points, so it is not possible to consider case precedent No. 14/2017/AL as a basis for settlement. In Precedent No. 14/2017/AL, although the conditions for gifting the property are not specified in the contract, in other documents, it can be shown that the parties have agreed on the conditions for gifting the property. But in the above case, the proof of conditions when giving the property was only confirmed through the testimony of Ms. H, Ms. N did not admit that there was an agreement on conditions when giving the property and did not have any documents to prove the words of Ms. H.

However, a comprehensive review of all aspects of the disputed relationship shows that: N is Ms. H's biological child and has received her only land use right, so when she is no longer able to work, Ms. N has the obligation to take care of her family. H's care and upbringing is completely consistent with the purpose of contracting and social ethics. We see that the Court's point of view is more suitable for settling disputes because it has ensured the legitimate rights and interests of each involved party and at the same time proved that the purpose of the contract is appropriate. With the above analysis and arguments, the Court's determination that "the contract for the donation of land use rights between Mrs. H and Ms. N is a conditional donation contract", although it provides a sufficient legal basis, is the correct and most appropriate determination of the disputed relationship. Because in the end, the Court has ensured the legitimate rights and interests of each involved party participating in the proceedings.

The above judgment is a typical contradiction between the application of the law and the actual settlement of disputes and conflicts. When looking at the content of the case, we clearly see the contradictions in the contract of gifting of property and social moral relations, but legally the contract is protected by law. In conclusion, if the legal provisions are applied mechanically, Ms. H's legitimate rights will be completely ignored, but to be able to recognize the conditions of the contract is a big legal barrier for the Court.

Dinh Thien
73


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