No Takebacks! Part I

A Gifting Guide

As the holiday season closes out, most of us have received gifts from our loved ones. Maybe Santa brought a few as well! Now, hopefully everyone got what they wanted and hope to never give away any of those gifts. But what if those beloved friends and family come and ask for the gift back? What if they realize they meant to give you a towel instead or that diamond ring was supposed to be a cubic zirconia? Perhaps a significant other told you he/she would get that perfect gift, only to find yourself disappointingly searching under the tree skirt in hopes that “promise” would become reality. What happens when you get a gift you don’t want, or don’t get a gift you were promised?

Gifts and Promises fall under an area of property law. Basically, a gift is when a person with the rights to something gives that object (actually or constructively) to someone else with the intent to transfer those rights without expecting anything in return. To clarify, actually giving a gift is, as it sounds, where a person delivers the actual gift to another with all intent to transfer ownership. Constructive delivery is seen more when actual delivery is a little more difficult, where an act that implies delivery is better suited to show the gift. An example of this is giving the keys of a car to someone or handing over the deed to a house. Over the holidays you received plenty of gifts from family, friends, and Santa where the gift was actually delivered underneath the wrapping. Still, you may have gotten a gift constructively when you gave your significant other a coupon for date night or a back massage.

Regardless, the intent to transfer ownership must be present for a gift to be made. When disputes arise, many things can be considered in determining intent. Holding most weight are the words used during a transfer but other elements can be considered including surrounding circumstances, relationships, size/value of the gift, and how the parties appear to treat the “gift” prior to the claimed transfer. Before intent can even be determined, a court also considers whether intent is possible. Infants and the insane are seen to be unable to gift things away for example. What was the intent is another factor. If you meant to give the ring that looked like a diamond rather than the ring with a diamond, then you lack the correct intent. However, if you meant to give the ring, not knowing it was a diamond, then the intent is present. As you can see, despite the clear factors required for a gift, things can get quite murky in the eyes of the law.

Either way, delivery with intent to gift is very important. For all those gifts that weren’t under the tree, an empty promise is all you get in the end. Without this final delivery, a promise to gift is unenforceable and legally meaningless. I can tell you I’ll give you my car but if I continue to drive it around no delivery will be seen to have occurred. Delivery with intent of future transfer of rights also leaves room for the original owner to back out before the time elapses. So if I hand over the keys to you and say that on your 21st birthday I’ll give you this car, until your 21st birthday I can take the keys back even though I have handed you them for now. Once the birthday pasts, the intent would be evident of a transfer.

We touched on intent and delivery as necessary for a gift. One last element many may not think about is necessary for a gift to be complete: The recipient of a gift must accept the gift. You may be asking yourself why someone would reject a gift, but there are several reasons, including romantic gifts where feelings aren’t mutual, business relationships where gifts are inappropriate, or animal gifts where acceptance means years of responsibility and expenses.

Acceptance is presumed these days because, despite the examples I gave above, most of the time a gift is accepted by others. Rejection must be expressed most of the time and if the gift is rejected, you cannot come back and accept the gift in the future unless the offer is made again. During the period between the gift offer and acceptance, the person offering has until acceptance to revoke the offer and terminate the receiver’s ability to accept. So don’t take too much time pondering the gift because it could disappear.

So enjoy all those gifts you got over the holidays, and the many gifts of the future, and if you receive a gift in the future you hope to possess forever, think back on this and double check that all the elements have been satisfied so no one can ever take them away.

In summary, the three elements for consummating a gift are:

  • Intent
  • Delivery and
  • Acceptance

See also our article entitled “You Promised! Engagement Rings When It’s Called Off”. An engagement ring may be a conditional gift.

Fred Antenberg is an attorney who has an office in Columbia, Maryland, near Baltimore, and who provides legal services in surrounding jurisdictions in Maryland.

Call Fred today for a free initial consultation at 410-730-4404.