CERTAIN MODALITIES OF THE GIFT CONTRACT – REFLECTIONS IN THE ABSENCE OF THEIR REGULATION

Abstract

Regardless of the existence of indirect regulation, the gift contract, in the law of the Republic of Serbia, is not one of the nominate contracts. This contract has eluded regulation due to the legislator's position that it does not fall within the category of standard commercial transactions. However, this does not diminish its legal significance or practical value. On the contrary, due to the volume of transactions carried out through this contract, it is, alongside the contract of sale, considered the most significant transaction in civil law.

In the absence of direct regulation, numerous questions remain open regarding the basic form of the contract. These issues are the subject of analysis in academic and professional literature. In addition, well-developed case law makes a significant contribution by resolving uncertainties that arise in individual cases. Still, deviations from classical arrangements in gift-giving are not a particular focus of interest. Even fundamental questions such as the legal nature, effects, and consequences of these modalities remain largely unexplored.

In this paper, after necessary clarifications of the assumptions underlying the classical form of the gift contract, we address the aforementioned issues in the context of gifts with a mandate, mixed gifts, and reciprocal gifts. We do this by employing analytical methods, as well as comparative and historical techniques of the normative method, and finally the synthetic method.