The Tribune Democrat, Johnstown, PA

December 22, 2012

THOMAS YOUNG | Santa can’t take back presents

— A little girl asked me, “If I don’t continue to be good, can Santa Claus take back his presents?”

Absolutely not, Virginia.

This is the season for giving, and the rules about such things are very old and rather strict.

The first requirement for a valid gift is that the giver (called the “donor”) must have a present intention to make a gift.

Intention exists only in the mind, so we conclude a person did or did not have a present intention based on outward conduct.

Leaving a present under a tree with the recipient’s (donee’s) name on it would be an indication of a person’s intention.

So would leaving an item in the donee’s stocking on the fireplace.

The law requires the existence of intention so that people who find lost things, or who come into possession of things wrongfully, cannot claim a gift was made.

Intention, however, must be followed by the second requirement, delivery.

Delivery causes many more problems than does intention. If you’re fortunate enough to have a friendly person enter your home in the dead of night and place things there for you to find, then the gift has been delivered, and the requirement satisfied.

Sometimes the thing to be delivered is too large or too impractical to deliver.

If Santa leaves a set of car keys under the tree, but the car is parked outside, is it a gift of a car or of a set of keys? Obviously, a gift of a car.

Such “tokens” of the real present are said to constitute “constructive” delivery.  Constructive delivery is just as good as actual delivery.

If, on the other hand, Santa writes me a deed to the North Pole, and then puts it in his desk, the intention would be there but delivery would be missing, so no gift would be made.

Finally, to be a valid gift, there is a requirement that the donee accept the gift.

Now, who wouldn’t accept just about anything a kindly old man in a red suit would give?  Probably very few.

But, what if the kindly old man leaves me a lump of coal?

Now, that’s something I don’t want and can’t use, so I reject it.  Having done so, no gift is made because, while the first two criteria are met, the third isn’t.

If all the criteria are met, can the giver take back the gift for any reason?

Will Santa be back later to collect the gifts?

Absolutely not.  Neither Santa nor anybody else can be an “Indian Giver.” The law won’t allow it.

“Exchange Day” is, of course, another matter.

Thomas Young, a graduate of Pitt and Harvard Law School, has been a lawyer in Johns­town since 1958. He is a former professor of business law at Pitt-Johnstown. Readers may send questions to Young in care of The Tribune-Democrat. The opinions expressed in this column are general in nature and may not apply to your situation. Consult your attorney for advice on specific legal matters.



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