A “gift” is _________.
A gift is a
- voluntary, immediate transfer of property
- without consideration
- from one person (donor) to another (donee).
Because the law is suspicious of these non-contractual transfers and wants to avoid stealing, fraud, and self-help, there are legal requirements for valid gift transfers.
Bailment is _________.
Bailment = transfer of possession without ownership
Example: Dry Cleaners – take temporary possession of your clothes but no ownership
Gifts of Personal Property
Gifts of Personal Property
- No writing required
- Inter vivos gift or gift causa mortis
- Must have donative intent
- Manual delivery preferred if not required
- Acceptance is presumed
Gifts of Real Property
Gifts of Real Property:
- Deed is required
- Inter vivos gift ONLY or else must leave real property through a will
- Must have donative intent
- Manual delivery is impossible – always a symbolic delivery (deed)
- Acceptance is presumed
Intervivos Gifts
Inter Vivos Gifts:
- Donative intent
- Delivery (manual delivery preferred but not required)
- Acceptance is presumed
- A valid inter vivos gift transfer is not revocable.
- Once title transferred, it’s done. It would provide no certainty to make inter vivos gifts revocable.
Gifts Causa Mortis
Gifts Causa Mortis:
- Gifts causa mortis function as emergency substitutes for a will.
- Donative intent
- Manual delivery more strictly applied –> If the item is already in donee’s possession, re-delivery is necessary
- Acceptance is presumed
- Gift must be made in anticipation of imminent death
- Revocable –> If the donor lives, the gift is revoked as a matter of law.
- The gift causa mortis can also be revoked up until the moment of death.
Gifts Causa Mortis:
“in anticipation of imminent death” is met when _________.
Gift must be made in anticipation of imminent death
Met when the donor is confronting the
- substantial certainty of death
- in the near future
- from a particular illness or affliction
The natural apprehension of death in the distant future does not support a gift causa mortis
Donative Intent
(1) Donative Intent: the donor must intend to make an immediate transfer of ownership to the donee. The donee must be able to prove this intent by clear and convincing evidence.
- Statements (best if written down) and actions of the donor are the best evidence
- A promise to make a gift in the future is not enforceable
- Can transfer a future interest (such as a remainder)
[1] “I give you 5% of my share of the future profits from my musical” à this is a present transfer of a future share.
“I will give you my TV for Christmas” à this is only a promise to make a gift and is unenforceable
Manual Delivery
Manual (preferred)
- Actual, physical delivery of the object
- Used to be required if physically possible
Constructive Delivery
Constructive
Occurs when the donor physically transfers to the donee the means of obtaining access to and control of the property,
- most commonly by handing over a key
- Courts will allow constructive or symbolic delivery if the physical delivery of the object is impossible or impractical.
However, the modern trend is to allow symbolic delivery even when a manual delivery is neither impossible nor impractical.
Symbolic Delivery
Symbolic
Occurs when an object that represents or symbolizes the gift is physically handed to the donee,
usually a writing such as a letter (“I give to Elsie my piano”)
Elements needed for a gift
(1) Donative Intent
(2) Delivery
(3) Acceptance is presumed
