The Laws Of Gift Giving

There are many reasons people give gifts. We give gifts to show appreciation, respect, love, build and maintain personal relationships, or even express an apology. There are particular customs and etiquettes surrounding the giving and receiving of gifts. In Japanese culture, for instance, it is proper etiquette to present gifts with two hands. In Western culture, getting your overweight cousin a diet magazine subscription or grimacing at the gem sweater Aunt Barb got you, are pretty bad form and should always be avoided. Reciprocating with gifts of similar quality and value is usually considered good measure.

One rule that generally applies cross-culturally though, is that once a gift is delivered and accepted, it cannot be revoked. However, like conjugating verbs in French, there are many exceptions to the rules. Here's a look at the other side of gift-giving; a side that most of us may not ask about, may not really think about, but is very practical and interesting legal knowledge to know.

Them’s the rules…

Three elements determine whether a gift has been made: delivery, donative intent and acceptance by the donee (the recipient of the gift).

Delivery of a gift is only complete once it is made directly to the donee, or to a third party on the donee's behalf.

Donative intent means that the intent to give the gift is present at the time the gift is made. The donor must also have the legal capacity to make the gift. For example, infants or individuals judged to be unable to attend to their own affairs have a legal disability to make a gift.

Acceptance is the final requirement for it to be considered a valid gift, which means that the donee unconditionally agrees to take the gift. The donee must also agree at the time the delivery is made. The gift can be revoked at any time prior to the acceptance. [Source]

What About Promises?

The promise of a gift is legally meaningless. Let’s say boy buys girl that pair of diamond earrings she had her eye on and promises them for her birthday. Even if boy lets her hold on to them, he could, legally (but highly inadvisably) ask for them back on the day before her birthday. Again, highly inadvisable but, as the Clash song goes, Know Your Rights. Engagement rings are considered “conditional gifts”. When it comes to the "rules of engagement", no matter how upsetting breaking off an engagement can be, tossing out that sparkling diamond engagement ring can be a huge mistake to have to pay for. One case in New South Wales, Australia ended in a man suing his former fiancée after she threw her engagement ring in the trash subsequent to the marriage proposal failing and telling her she could keep the ring anyway. The Supreme Court of New South Wales held that despite what the man said, the ring remained a conditional gift (partly because his saying that she could keep it was partly due to his desire to salvage the relationship) and she was ordered to pay him its AUD$15,250 cost. [Source]

Another notable case is that of Meyer v. Mitnick.

Barry Meyer and Robyn Mitnick became engaged on August 9, at which time Barry gave Robyn an engagement ring that cost $19,500. On November 8, Barry asked Robyn to sign a prenuptial agreement, which she refused to do and the engagement was broken. Robyn refused to return the ring. Barry sued. Robyn contended that the ring was an unconditional gift. Barry contended that the ring was a conditional gift given in contemplation of marriage, which did not occur. The trial court held for Barry. Robyn appealed. [Source]

Rule: Regardless of why the engagement is broken, the ring should be returned to the donor. The engagement ring is a gift in contemplation of marriage.

Exception: The date on which the ring was given, may change the nature of the gift offer. For instance, Valentine's Day and Christmas are recognized as gift giving holidays, therefore, a ring offered in form of a Christmas present will become the personal property of the recipient in the event of a break up.

Also, in the United Kingdom, an engagement ring is presumed to be an absolute gift to the fiancée. However if it can be proven that the ring was given on condition that it be returned if the marriage did not take place, for whatever reason, the ring can be returned to the donor. So, there you have it; some little known and completely unromantic facts about the act of giving gifts.
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