The Form of a Gift Agreement under Polish Law: When a Bank Transfer Replaces the Notary and When Nothing Does

The Form of a Gift Agreement under Polish Law: When a Bank Transfer Replaces the Notary and When Nothing Does

2026.10.21 Author: Robert Nogacki

 

Abstract. Article 890 of the Polish Civil Code reserves the form of a notarial deed for the donor’s declaration of will, attaches the sanction of nullity to its omission and then, in the same provision, allows the nullity to be cured by performance. This article examines the three elements of that regulation: the unilateral form requirement, the mechanism of convalidation and the priority of object-specific form requirements under Article 890 § 2, which exclude convalidation altogether for real estate, enterprises and shares in limited liability companies. It then traces the consequences of form into Polish inheritance and gift tax, where the method of transfer, rather than the civil law form, determines the availability of the exemption for close family. The analysis draws on Polish doctrine and on the case law of the Supreme Court, the courts of appeal and the Supreme Administrative Court, including the resolution of 20 March 2023 (III FPS 3/22) and the amendment of 2026 permitting the restoration of the reporting deadline. The law is stated as of 14 October 2026.

 

Introduction

Consider a father who, over Sunday dinner, promises his daughter PLN 200,000 towards an apartment. A year later the apartment has been bought with a mortgage, and the father, after a conversation with his second daughter, has changed his mind. The first daughter has no claim. An oral promise of a gift, even one made before witnesses, is void under Polish law and generates no obligation. Had the father transferred the money before changing his mind, the gift would have been valid, although no notary ever saw it.

The form of a gift agreement under Polish law is a subject on which lay intuition diverges from the statute in both directions. Donees assume that a promise binds (it does not); donors fear that a gift made without a notarial deed is void (it usually is not, provided that it has been performed). Between these two errors lies the entire practice of Article 890 of the Act of 23 April 1964, the Civil Code (Kodeks cywilny, hereinafter “CC”), together with a considerable share of the family disputes and disputes with the tax authority that reach practitioners of civil law in Poland. This article sets out what the provision requires, when performance substitutes for the notary, when nothing does, and how the civil law form interacts with the tax treatment of gifts.

 

The Statutory Framework of Article 890 of the Civil Code

Article 890 CC provides, in the author’s translation: “§ 1. The donor’s declaration should be made in the form of a notarial deed. However, a gift agreement concluded without observing this form becomes valid if the promised performance has been rendered. § 2. The foregoing provisions do not prejudice provisions which, by reason of the object of the gift, require a special form for the declarations of both parties.”

Three rules follow. First, the notarial form is prescribed for the donor’s declaration alone, not for the agreement as a whole; the donee may accept in any form, including per facta concludentia, typically by taking possession of the object. Second, failure to observe the form renders the agreement void (Article 73 § 2 CC), but performance removes the nullity. Third, where a statute requires, by reason of the object, a special form for the declarations of both parties, that requirement prevails, and the curative mechanism of § 1 does not operate at all.

A. The asymmetry of form and its functions

The asymmetry is deliberate. The donor receives nothing in exchange, and the legislature therefore protects the donor against the donor’s own impulses: against hasty generosity, family pressure and declarations made in emotion. The donee, who only gains, requires no comparable protection. Polish doctrine identifies four functions of the notarial form of the donor’s declaration. The solemnity of the procedure enforces reflection and warns of the definitive character of the decision. The participation of the notary ensures that the will is expressed clearly and can later be reconstructed. The form separates a binding obligation from a social promise, a distinction of some importance in family relations. Finally, a notarial deed is an official document enjoying a presumption of authenticity (Article 244 § 1 of the Code of Civil Procedure), and incidentally informs the tax administration, although the fiscal function is generally regarded as secondary.

B. Comparative remarks

The Polish solution is not idiosyncratic. French law, which regards gifts with suspicion as a means of depleting family wealth, requires notarial form under Article 931 of the Code civil, with a judicially developed exception for the don manuel. German law locates the danger in the donor’s own improvidence; § 518 BGB requires notarial authentication of a promise of gift and provides that the defect of form is cured by rendering the promised performance. Austrian law reaches a comparable result by requiring a notarial act for a gift agreement unaccompanied by actual delivery. The Polish Code of Obligations of 1933 (Article 358) followed the German model, and Article 890 CC restates it in condensed form. English law arrives at a functionally similar position by a different route: a gratuitous promise is unenforceable for want of consideration unless made by deed, while an executed gift of chattels requires delivery; American law adds promissory estoppel to the picture. In each of these systems the law distinguishes the executed gift from the executory promise and reserves its formal apparatus for the latter.

Within Polish private law the provision is exceptional in a further sense. Doctrine regards it as the only case in which the omission of a form prescribed ad solemnitatem is cured by performance, and the Supreme Court has held that, being an exception, it may not be construed broadly (judgment of 28 April 2021, I CSKP 143/21). Where the donor lives abroad or the asset lies outside Poland, the form is governed by international private law: for a disposition of real estate situated in Poland, Polish law remains applicable, and the form of the state in which the agreement was concluded does not suffice (Article 25 (2) of the Act of 4 February 2011 on Private International Law).

 

Nullity and Its Cure: Convalidation by Performance

A. The unenforceable promise

The nullity under Article 890 § 1 CC is absolute. It operates ex tunc, is taken into account by the court ex officio and cannot be waived by the parties. No obligation arises from a void agreement, so the donee has nothing to enforce, neither the performance nor damages for its absence. The Court of Appeal in Gdańsk put the matter plainly: the donor’s intentions are irrelevant if they were not realised in one of the two ways contemplated by Article 890 § 1 CC, and the scope of the gift is determined by what the donee actually received (judgment of 1 October 2019, I ACa 52/19).

The paradox merits explicit statement: the law protects the donor by disarming the donor’s own word. The father in the illustration may change his mind without legal consequence, because his promise never became an obligation, while the daughter who borrowed in reliance on it bears the risk alone. If a promise is to bind, there is one route, the notarial deed. The gift then becomes a debt enforceable against the donor and, after the donor’s death, against the heirs.

The converse is equally significant. A donor who has performed cannot subsequently demand restitution by invoking the absence of a notary. Performance validates the agreement retroactively and supplies the causa of the enrichment, so that no condictio lies. Doctrine attributes a stabilising function to this rule: without convalidation, any gift handed over without a deed could be reclaimed, and the institution would become an instrument of opportunism. The only avenue for recovering a performed gift is, in principle, revocation for gross ingratitude of the donee (Article 898 CC), exercisable within one year of the donor learning of the ground; a gift not yet performed may additionally be revoked where, after the conclusion of the agreement, the donor’s financial position has changed so that performance would prejudice the donor’s own maintenance or statutory maintenance obligations (Article 896 CC). The tax consequences of such a reversal are discussed separately in the analysis of the tax consequences of returning a gift.

B. The mechanism of convalidation

The second sentence of Article 890 § 1 CC operates simply: upon performance of the promised benefit the agreement “becomes valid”, and does so ex tunc, from the moment of its conclusion. This covers both the gift in which delivery coincides with agreement (traditionally termed a hand gift, darowizna rękodajna) and the promise which the donor fulfils later. A hand gift may be manifested by any conduct of the donor which, according to accepted conventions of meaning, expresses the will to make a gratuitous transfer (Court of Appeal in Białystok, judgment of 8 June 2016, I ACa 118/16).

C. What counts as performance

What constitutes performance depends on the object. For money it is the handing over of cash or a bank transfer, strictly speaking the moment at which the donee’s account is credited, from which the tax deadline also runs. For movables it is delivery: the keys and documents of a car, a painting taken from the wall, jewellery passed from hand to hand. Other modes of transferring possession known to the Code (Articles 349 to 351 CC), for instance where the thing remains with the donor as a lessee, are also admitted, but they require some externally perceptible sign of the change. The Supreme Court demands an external manifestation of the parties’ will that they embrace the performance of the agreement (order of 27 January 2021, I CSK 535/20). For claims, performance is evidenced by a separate assignment, notice to the debtor or delivery of the documents evidencing the claim. Doctrine admits partial convalidation: where PLN 200,000 was promised and PLN 100,000 transferred, the gift is valid as to the amount transferred, which the donee retains, while the balance remains a matter for the donor’s discretion.

Performance must be voluntary and must come from the donor or be attributable to the donor. Neither recovery in enforcement proceedings nor any act taken after the donor’s death will cure the agreement, since after death there is no one left to perform (so held, on the facts of a withdrawal from a deceased person’s account by someone invoking a gift, by the Court of Appeal in Warsaw, judgment of 7 February 2022, II AKa 456/21). The case law distinguishes two situations that look alike from the outside. Where a hospitalised donor instructed an attorney-in-fact to liquidate deposits and hand the proceeds to her, and she did so the following day, performance was rendered (Court of Appeal in Katowice, judgment of 8 September 2017, I ACa 242/17). Where, by contrast, a person holding a mere power of attorney over a bank account transfers the principal’s funds to herself, there is no gift, because an attorney-in-fact disposes of another’s funds in another’s interest and must account for them (Court of Appeal in Białystok, judgment of 23 January 2015, I ACa 496/14). The difference lies in whose will stands behind the transfer, not in whose hand executed it.

D. Proof of the underlying agreement

Convalidation cures the defect of form and nothing else. It remains necessary to prove that the parties concluded a gift agreement of a particular content. In the case of an informal gift, the content is established under the general rules of interpretation of declarations of will (Article 65 CC) on the basis of all the circumstances, of which the physical handing over of money is only one element; this applies also to the question for whom the gift was intended where the funds reached one of two spouses (Supreme Court, order of 27 May 2015, II CSK 644/14). The Court of Appeal in Lublin emphasised that Article 890 CC cures the form of a gift that is undisputed or proven, and that a transfer as such does not evidence a gift, since the title of a transfer may be various and may include a loan (judgment of 19 July 2023, I ACa 137/23). This is the most frequent family dispute: years later one side asserts a loan, the other a gift. The Supreme Court adds that performance itself may be proved by any means, since neither the wording nor the purpose of Article 890 CC restricts the mode of proof (order of 8 March 2024, I CSK 6929/22); testimony, correspondence and account history therefore count, not only documents.

Three practical conclusions are commonly drawn. The transfer description should state “gift” and identify the donee. An ordinary written gift agreement, although no substitute for the notarial deed, has considerable evidentiary value and settles the content: the amount, the purpose, any charge imposed on the donee (polecenie) and the designation of the gift as the donee’s separate property. The tax filing reporting the gift becomes, in turn, a document that is difficult to impugn years later. It should also be borne in mind that performance cures the defect of form alone. It does not cure incapacity, duress or mistake, nor the defective representation of a company that accepts a gift from a member of its own management board in disregard of Article 210 of the Commercial Companies Code (Kodeks spółek handlowych, hereinafter “CCC”), as the Supreme Court held in the judgment cited above (I CSKP 143/21); the wider problem of contracts between a company and its board members is analysed elsewhere.

 

Objects That Require a Bilateral Form

Article 890 § 2 CC gives priority to provisions which, by reason of the object of the gift, require a special form for the declarations of both parties. The priority has two consequences, both of them severe. The donee must also observe the form, and the mechanism of convalidation by performance is excluded in its entirety. Handing over the keys, moving in, renovating, paying property tax for 20 years: none of this substitutes for the notarial deed. The form of a gift agreement is then determined exclusively by its object:

  • Real estate, perpetual usufruct and the cooperative ownership right to premises require a notarial deed for the declarations of both parties (Articles 158 and 237 CC; Article 17² (4) of the Act of 15 December 2000 on housing cooperatives). The Court of Appeal in Warsaw held that Article 890 § 2 CC excludes both a gift of real estate by the donor’s unilateral declaration in notarial form and a hand gift (judgment of 12 December 2019, V ACa 834/17). The consequences extend into property taxation: a person holding a building under a written “gift” has not become its owner (Regional Administrative Court in Gorzów Wielkopolski, judgment of 6 December 2017, I SA/Go 419/17), and property tax reaches that person at most as an autonomous possessor, not as owner. The wider framework is described in the overview of real estate law in Poland.
  • An enterprise requires written form with notarially certified signatures (Article 75¹ § 1 CC) and, where real estate forms part of it, a notarial deed (Article 75¹ § 4 CC), so that in practice the whole agreement goes before the notary.
  • Shares in a limited liability company require written form with notarially certified signatures (Article 180 § 1 CCC).
  • The gratuitous creation of a servitude of habitation or of another limited right in rem over real estate requires the owner’s declaration in the form of a notarial deed (Article 245 § 2 CC). The beneficiary’s mere occupation of the premises does not replace that form.

Points 2 and 3 reveal a peculiarity of § 2. Under the ordinary hierarchy of forms a higher form may replace a lower one, never the reverse. Here the written form with certified signatures, although lower than the notarial deed, displaces the notarial deed reserved for the donor, because it binds both parties; in exchange, the possibility of curing the defect by performance disappears. Part of the doctrine (K. Mularski, followed by M. Załucki) takes the contrary view that the donor’s declaration would still require a notarial deed, the lower form sufficing only for the donee. The commentary in the series edited by K. Osajda rejects such mixed forms as incompatible with § 2 and has the majority of the literature behind it. A donor who wishes to avoid the dispute executes the gift of an enterprise or of shares as a notarial deed, which satisfies the lower form as well. A donor of shares who “transferred” them to a child orally and allowed the child to vote at the shareholders’ meeting has made no gift at all.

A separate source of dispute is the gift concealed beneath another agreement. Parents “sell” an apartment to a child, but the price is never paid, because the parties intended a gift from the outset (an unpaid price alone is a debt, not simulation; what decides is the concurrent intention of both parties). The Supreme Court, in its resolution of 9 December 2011 (III CZP 79/11), held that the simulated sale is void and that the concealed gift of real estate is void as well, since it lacks a notarial form of its own; the form of a simulated act cannot be “borrowed” (likewise Court of Appeal in Warsaw, judgment of 26 October 2017, V ACa 162/17). The result is unfortunate for all concerned: the child has acquired no title, and the tax authority may still ask whether a sale below market value conceals a taxable gift.

 

The Tax Dimension: Form as a Condition of Exemption

From the standpoint of civil law, a gift of money between close relatives is the simplest case: the transfer performs the agreement and makes it valid. Difficulties begin under the Act of 28 July 1983 on inheritance and gift tax (ustawa o podatku od spadków i darowizn, hereinafter “IGTA”), which approaches the form of a gift on its own terms. The principal rules, in the order in which they are usually examined, are as follows; a general account of inheritance and gift tax in Poland is available separately.

  • The spouse, descendants, ascendants, stepchild, siblings, stepfather and stepmother (the so-called zero group) are exempt without any limit on amount (Article 4a IGTA), provided that the acquirer holds the citizenship of Poland, of an EU member state or of an EFTA state party to the EEA, or resides in Poland or in such a state (Article 4 (4) IGTA), and subject to two further conditions. The first is the filing of form SD-Z2 with the tax office within 6 months; for an informal gift the period runs from performance, since that is when the tax obligation arises (Article 6 (1) (4) IGTA); no filing is required where the aggregate value acquired from the same person does not exceed PLN 36,120 (Article 4a (4) (1) IGTA). The second concerns money: where the money received, aggregated with everything acquired from the same person in the year of the latest acquisition and in the 5 preceding years, exceeds PLN 36,120, receipt must be documented by proof of transfer to the donee’s account or by postal order.
  • The second condition is read literally by the administration and the courts. The Supreme Administrative Court, in a resolution of seven judges of 20 March 2023 (III FPS 3/22) (in Polish), held that the exemption is available only where the donor transferred the money to the donee’s account. Cash handed over and paid in by the donee to the donee’s own account does not satisfy the condition; the earlier, more liberal line of some regional courts (for instance the Regional Administrative Court in Olsztyn, judgment of 18 January 2023, I SA/Ol 548/22) was rejected by the resolution. The Supreme Administrative Court has nevertheless referred the condition to the Constitutional Tribunal (legal question of 17 February 2026, III FSK 1252/24, case P 16/26), and the Commissioner for Human Rights has joined those proceedings (in Polish), arguing that Article 4a (1) (2) IGTA is unconstitutional. Until the Tribunal rules, the condition applies in full. A separate question is a transfer from the donor directly to the donee’s creditor. Payment directly into a developer’s account in performance of the agreement with the developer has been accepted by the tax administration since the general interpretation of the Minister of Finance of 15 February 2012 (PL/LM/834/10/BNJ/12/41, in Polish), as the Ministry confirmed in its reply to the Commissioner for Human Rights of 11 March 2026 (in Polish). A transfer to the account of any other creditor, such as the seller of an apartment or a bank, is accepted by some panels of the Supreme Administrative Court, but in the same reply the Ministry declined to change the administration’s line, although the Commissioner for Human Rights had intervened to that end in February 2026 (in Polish). The safe course is a single one: a transfer from the donor’s account to the donee’s account, followed by the donee’s own payment. In atypical configurations the uncertainty can be removed in advance through individual tax rulings or tax opinions and analyses.
  • A gift made in the form of a notarial deed removes the reporting obligation (Article 4a (4) (2) IGTA), because the notary, acting as tax remitter, records the exemption and transmits the information to the tax office. The deed does not, however, replace the transfer: a gift of money above the threshold handed over in cash, even before a notary, does not qualify for the exemption. This is one of the practical reasons for which a deed is sometimes worth its cost although civil law does not require it.
  • A late SD-Z2 filing has hitherto cost the exemption and resulted in taxation under the rules for tax group I, that is at rates from 3 to 7 percent of the excess over the tax-free amount. Since 7 January 2026 a new Article 4c IGTA permits the restoration of the deadline where the taxpayer substantiates that the failure occurred without fault, for instance owing to illness. It applies to acquisitions from that date and to earlier acquisitions whose six-month period had not yet expired, as the Ministry of Finance explains in its communication on the new rules (in Polish). The application must be filed within 7 days after the cause of the failure ceases, together with the overdue filing.
  • The worst scenario is an unreported gift invoked by the taxpayer only in the course of preliminary inquiries or a tax audit, in order to explain the origin of funds. The rate is then 20 percent (Article 15 (4) IGTA).

For more distant relatives and unrelated persons the tax-free amounts are PLN 36,120 (group I), PLN 27,090 (group II) and PLN 5,733 (group III), aggregated with acquisitions from the same donor in the year of the latest acquisition and in the 5 preceding years; above those amounts a progressive scale applies.

 

Recurrent Fact Patterns

  • A parent contributes to a child’s apartment. Under civil law a transfer suffices. For tax purposes the transfer should reach the child’s account, preferably the child’s own account, with a description naming the child as the sole donee: a gift made to both spouses is split in half by the tax administration, and a son-in-law or daughter-in-law belongs to tax group I with its threshold of PLN 36,120 (Regional Administrative Court in Gdańsk, judgment of 31 May 2022, I SA/Gd 86/22). The child then pays the developer, and the SD-Z2 should reach the tax office within 6 months. If the child is married, the gift falls into the child’s separate property unless the donor provides otherwise (Article 33 (2) of the Family and Guardianship Code); the point is worth recording, because on divorce the document, not memory, decides.
  • A gift between spouses. It is permissible also under the statutory community of property, from the separate property of one spouse to the separate property of the other or to the joint property. The same logic of transfer and reporting applies, since a spouse belongs to the zero group, and a transfer between joint accounts documents nothing. Creditors should also be kept in mind: a gift to a spouse is the first target of an action to set aside a fraudulent conveyance (actio pauliana), and where the act is gratuitous the creditor need not even prove that the donee knew of the prejudice (Article 528 CC). A gift is not, in other words, an instrument of asset protection.
  • A gift made through an attorney-in-fact. A power of attorney to make the donor’s declaration should itself be in the form of a notarial deed (Article 99 § 1 CC), but the Supreme Court has held that an agreement concluded by an attorney-in-fact who was authorised, but not by a notarial deed, becomes valid retroactively once the performance is rendered (order of 12 March 2015, I CSK 135/14). The boundary runs where indicated above: the attorney-in-fact executes the donor’s will and does not create it, and where siblings years later contest the dispositions of elderly parents, documentation of that will decides the case.
  • “You will receive it after my death.” Such a promise without a notarial deed dies with the donor, because no one can perform in the donor’s name afterwards and the heirs do not inherit an obligation that never arose. A person who wishes the beneficiary actually to receive the asset after death may choose between a gift in notarial form with deferred performance, which binds the heirs; a gift mortis causa of specific things or rights, likewise in notarial form, admitted by the Supreme Court in its resolution of 13 December 2013 (III CZP 79/13); and a will containing either an ordinary legacy, which imposes a duty of performance on the heirs, or a specific bequest with proprietary effect (zapis windykacyjny), which transfers the asset upon death and requires notarial form. Each affects the compulsory share differently, since gifts and specific bequests are added to the estate for its computation (Articles 993 and 994 CC); the comparative background is set out in the analysis of forced heirship and compulsory share systems. This is one reason why succession planning in the family business begins with an inventory of gifts already made.
  • Shares and the enterprise. There is no shortcut: the forms prescribed by Article 180 CCC and Article 75¹ CC bind both parties, without convalidation. Where the aim is to order family wealth across generations, a series of gifts may be less suitable than a family foundation; the planned changes are discussed in the analysis of Poland’s family foundation tax reform from 2027.

 

The Notarial Deed as a Rational Choice

Whether to use a notary where the law does not require one is a question of calculation rather than caution. A notarial deed is necessary where the gift is to be performed later, because only then does the promise become an obligation enforceable also against the heirs. It is advisable where the gift contains a charge, a condition or a stipulation concerning the donee’s separate property, since such elements cannot be read from a transfer. It pays at larger amounts where a future dispute over the compulsory share, the donee’s divorce or creditors’ claims is foreseeable, because an official document bearing a certain date closes most arguments about what was given, to whom and when. Finally, it dispenses with the SD-Z2 filing and thereby eliminates the most common tax error, provided that the money itself still travels by transfer.

The cost is predictable. The maximum notarial fee for a gift worth PLN 500,000 is PLN 1,010 plus 0.4 percent of the excess over PLN 60,000, that is PLN 2,770 net, to which VAT and the cost of copies are added; the fee is capped at PLN 10,000, and at PLN 7,500 between persons in tax group I (Regulation of the Minister of Justice of 28 June 2004 on maximum notarial fees, in Polish). Measured against the cost of litigation, the amount is easily justified.

A notary is not needed for a gift of money performed at once by transfer, for gifts of movables or for a car; in the last case a written agreement, which the vehicle registry requires for re-registration, and a tax filing where the tax-free amount is exceeded (SD-Z2 within 6 months for the closest family, the SD-3 return within one month for everyone else), suffice.

 

Conclusion

The form of a gift agreement under Polish law reduces to three questions. What is the object: if real estate, an enterprise or shares, the only route leads through the notary and binds both parties. When will the performance be rendered: if at once, a transfer or delivery suffices; if later, a promise without a notarial deed binds no one. How will the gift be documented: validity is governed by the Civil Code, but cost is governed by the tax statute, by creditors and by future heirs. A donor who answers these questions before the transfer avoids the disputes that reach practitioners of tax law and civil law most often after the fact.

Kancelaria Prawna Skarbiec advises on gifts of significance to family wealth: it handles the contract drafting of the gift, prepares the tax filings, assesses the exposure to compulsory share claims and to actions by creditors, conducts litigation over the validity and return of gifts, and plans succession, including through the Polish family foundation. Those contemplating a transfer of assets to relatives are welcome to seek legal counsel in Poland before the transfer rather than after it.

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