December 16, 2009

What is a Gift

In the spirit of Christmas, I thought it would be appropriate to legally define a “gift.” Yes, there is a legal definition to a gift. Consequently, a gift is a transfer of property that is made voluntarily and without consideration. The following elements are necessary for a valid gift U.S. v Alcaraz-Garcia (9th Cir 1996) 79 F3d 769; 13 Witkin, Summary of California Law, Personal Property §124 (10th ed 2005)):

1. There must be an intent on the part of a donor having capacity to contract to make an unconditional gift;

2. The donor's intent must be to make a present gift of the property (if the intention is to make a future transfer, there is no gift);

3. There must be an actual or symbolic delivery of the gift, i.e., the donor must relinquish control of the property; and

4. The donee must accept the gift.

For example, if I wrapped up my favorite burgundy sweater in a box, presented it to my friend Dan on Christmas day and Dan accepted the sweater, this transaction would qualify as a “gift” in legal terms. Since there was intent on my part to gift the sweater to Dan because I wrapped it up in a package, I delivered the sweater to Dan by presenting it to him in a box and Dan accepted the gift when I presented it to him.