Main News Written promise to make a gift invalid without notarial certification.

Written promise to make a gift invalid without notarial certification.

The Munich Local Court has decided that even a written promise of gift is only binding if it has been notarised by a notary public.

In 2017, the plaintiff had agreed with her girlfriend of many years at the time to take a flight to and through South Africa from 15.01.2018 to 29.03.2018. Still during the journey, on 20.02.2018, the 19-year-old defendant appeared in the hotel of the two travellers in South African Cape Town, where he made a marriage proposal on the day of the arrival of the accompanying friend of the plaintiff. At the defendant’s suggestion, all three moved into a holiday apartment in Cape Town rented by the defendant. The plaintiff’s girlfriend then flew back to Germany with the defendant on 23 February 2018. The plaintiff, who had just reached the age of majority, did not continue the journey alone, but also returned to Germany. The defendant promised the plaintiff the payment of 1,050 euros in writing as follows: “I hereby confirmed (…) that I will (…) bring 1,050 euros in cash by 28.02.2018”. The defendant subsequently refused any payment and declared that he would revoke his promise to donate.

The plaintiff submits that the travelling girlfriend, under pressure from the defendant, prematurely interrupted the journey. Without escort, she, who had just turned 18, would under no circumstances have considered such a long-distance journey. Since the unaccompanied continuation of the journey would have meant a not inconsiderable increase in risk for her, the defendant had suggested to the plaintiff that he also return to Germany early. In that case, the defendant had promised her, first, to reimburse the cost of the premature return flight of EUR 400 and, second, to pay a further EUR 650 so that she could make up the trip in the following year. It had accepted the defendant’s offer and, after the defendant had claimed that it did not have a bank account, it had set out in writing the undertaking to pay and the method of payment. She did not exert any pressure for the defendant to enter into the obligation. It merely stated, in its disappointment at the surprising behaviour of its fellow passengers, that it would in due course also address the conduct which it considered to be shabby. The defendant submits that the plaintiff achieved the promise to pay exclusively by threatening many times beforehand that, if she did not receive any money or the letter was not signed, she would put him and his girlfriend in a bad light among her friends and acquaintances. He had promised as a gift to bring the amount by simply because of the psychological pressure exerted by the plaintiff without any obligation whatsoever. In the absence of effective form, he was not obliged to pay. In addition, the declaration had been effectively challenged.

The Munich Local Court upheld the defendant’s claim and dismissed the action.

In the opinion of the local court, a gift is to be assumed in the present case. An enforceable obligation of the plaintiff vis-à-vis the defendant to return to Germany, for example, and to start a new journey in 2019 (when, which?) is not apparent. The defendant also did not act in breach of trust if he invoked the ineffectiveness of the form. Compliance with the formal requirements was in principle indispensable not only in the interest of legal certainty but also in the interest of the parties, in particular because of the warning function. It was not apparent that there was a legitimate expectation that the plaintiff should have assumed that the defendant would not invoke invalidity. Even if one wanted to assume contractually justified obligations between the plaintiff and the fellow passengers, these would only have an effect in the relationship between the contracting parties. Nor was it apparent that the defendant had a moral and moral duty to finance the plaintiff’s return flight and a new holiday in the following year. Irrespective of this, this did not alter the fact that the promise to donate was invalid in form.

The plaintiff had rejected the 300 euros offered by the defendant to the plaintiff at the beginning of the trial on the basis of the costs it had already incurred in the proceedings.

The judgment is not legally binding.

Source: Press release of the AG Munich No. 87/2018 v. 26.10.2018



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