Vail Law: If someone gave you something as a gift, you can keep it (column) |

Vail Law: If someone gave you something as a gift, you can keep it (column)

Rohn Robbins
Vail Law

“Can I keep them? Are they mine?”

“Sure,” I said, “but what’s the ‘them’?”

“These earrings …” she flicked them with a finger … “some furniture, and …”

“He gave them to you?”

“He said they were mine.”

“Well then …”

“So I can?”

What we were talking about was gifts and, more specifically, the law of gifts. What my client was asking me was whether her boyfriend, who was now ready to be her “ex,” could, as he had threatened, take back the gifts he had given her.

As she perched, teary-eyed on the edge of a client chair, I explained. “It goes like this,” I said, and then I laid it out. “Gifts are, well … gifts. But first you have to understand some terms.

“A gift is the voluntary transfer of property or of a property interest from one person to another, made gratuitously to the recipient. The individual who makes the gift is known as the donor, and the individual to whom the gift is made is called the donee.”

“Gratuitously?” she asked.

I said, “Without expecting to get anything in return.”

“Well …” she blushed.. “I mean …” She tightly crossed her legs.

“Without expecting payment. If you go to a jewelry store and pick out some earrings, the retailer expects you to pay for them. With your boyfriend …”

“He just gave them to me.”

“Exactly.” I went on. “There are three essential elements of a gift.” I looked her over as she settled back into the chair. “These elements are key in determining whether or not a gift has been made. They are …” I counted on my fingers, “… delivery, donative intent and acceptance by the donee.”


Delivery to the donee

“Delivery of a gift is complete when it is made directly to the donee or to a third person on the donee’s behalf.”

“So when he gave me the stuff?”

“Yes. Pretty much. Delivery may be actual, implied or symbolic, provided some affirmative act takes place. For example, if someone gave you a car, then he wouldn’t have to actually give you the car — although that would be OK, too — handing you the keys to the car with a ‘This is yours,” would be enough. Delivery occurs when the donor surrenders control of the property. It is now yours and no longer his.

“Donative intent to make a gift is essentially determined by the donor’s words, but a court may also consider the surrounding circumstances, the relationship of the parties, the size of the gift in relation to the amount of the donor’s property as a whole; and the behavior of the donor toward the property subsequent to the purported gift.

“An intent to make a gift must actually exist. If, say, a landlord rents a condo to a tenant, then he intends to make delivery of the condo to the tenant but does not intend for the tenant to keep it nor does he intend for the tenant to not pay rent. In that case, the landlord would lack donative intent. Plus,” I went on, “the intent must be present at the time the gift is made.”

“What if,” she looked nervously at me, “At first he said that I could use it — like the couch — but then later said, ‘It’s yours, just keep it?’”

‘Donative intent’

“Then that’s when there was donative intent. When he said ‘yours, not mine,’ or words to that effect.”

“Then it would be mine?”

“From that moment forward. That’s when there was donative intent. And delivery had already taken place.”

“And the third thing that I’d need?”

“Acceptance. Which means that the donee — you in this case — unconditionally agreed to take the gift.”

I could see that the word “unconditionally” made her a little nervous.

“It just means that you took it and said something such as ‘Thank you’ instead of pushing it back at him and saying ‘No, I don’t want this.’ A court,” I said, “will ordinarily make the assumption that a gift has been accepted if the gift is beneficial to the donee or unless some event has occurred to indicate that it is not. For example, the furniture helped you out, was to your benefit. You had something to sit on in your apartment. So even if your ex-boyfriend were to now claim that you didn’t accept it, logic would say otherwise.”

“So with what you said, the stuff is mine? What if he still says it’s not? What if he says to give it back?”

“In general, the law favors enforcing gifts. Every person has the right to dispose of his or her personal property as he or she chooses. Besides,” I said, “it wouldn’t be the court’s first rodeo. They’ve seen this sort of thing a zillion times before.”

“What if he insists?”

“Well, then there’s possession. Proof that the donor relinquished all control over the thing will usually settle it. He gave it to you, it’s out of his control, and it is entirely in your possession and control.” I smiled at her. “How would these earrings look on him anyway?”

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address,