Abstract (eng)
The gift upon death and the donation under the reservation of certain servitudes (hereinafter Übergabsvertrag) constitute important elements of anticipated succession. In both contracts the donor promises certain benefits whilst living, that shall be overhanded after his death. Whereas the property remains with the donor untill his death in the gift upon death, the property is transferred immedi-ately in the Übergabsvertrag. However, in an Übergabsvertrag the donor is granted with certain rights of use. Both contracts have in common, that the re-cipient has legal certainty that he will sooner or later receive the gift.
What is also common to both contracts is that there is no real handover within the meaning of Paragraph 1 (1) lit d NotAktsG. In the case of the gift upon death, even the law in Section 603 explicitly provides for the formal requirement of a notarial act. The similarity of the two types of contract has always led to problems in the classification of the gift upon death. On the one hand, since it only develops effects after the death of the donor, it can be seen as a legal transaction by death, but on the other hand it can also be seen as a contract among living, the fulfilment of which is suspended by the death of the donor. In the course of the ErbRÄG 2015 there was a fundamental reform of the donation upon death, which is to be presented in the course of this work. In particular, the question arises as to the extent to which conditions are permissible under the new legal situation, how the free quarter is to be treated and what rules are sub-ject to life insurance.
With regard to the need for protection of the donor, the gift on the death and the Übergabsvertrag appear equally problematic, since in both cases he only feels the loss of assets later. However, in an Übergabsvertrag the donor immedi-ately loses his property, while the donor of the gift upon death only looses he right to dispose over the donated asset in the event of death. This makes the transferor of an Übergabsvertrag seem even more worthy of protection. Never-theless, in the event of an Übergabsvertrag, the level of protection of the donor was for a long time less than in the case of the gift upon death, since it was as-sumed that the registration of the donation into the land register would void its nullity in form in accordance with § 1432. This is still partly the case today. In fact, however, the level of protection of both contracts must be the same, which can in principle also be inferred from § 1 (1) lit d NotAktsG and § 602. This is now also seen in part in the case-law of the Supreeme Court of Austria. In the course of this work, therefore, in addition to an overview of the reform of the gift upon death, the latest teaching and jurisprudence on the formal bids of the Übergabsvertrag is to be given. As will be seen, the formal requirements, in par-ticular the requirement of a notarial act, are equally strict in both cases. The question of the legal consequences of an invalid transfer agreement will then be dealt at last.