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. 44 g i f t s a n d p r o m i s e s r e v i s i t e dshow that the gift cannot easily be contained within its boundaries.Whereeven rigidly formulated and widely accepted rules cannot succeed in erect-ing an impenetrable border, the classical strategy of isolating contractualobligation is threatened.A close reading of gift and gift-promise cases reveals a tension in classicalcontract theory.Classical theory set out to minimize the importance of du-ties based in relationships, in part because these were perceived to be state-imposed.Correlatively, it accorded heightened importance to individualdetermination of the content of contractual obligations.But what happenswhen these two impulses conflict, when individual intentions are rooted inincalculable relationships, as in gift cases? On the one hand, gifts and giftpromises are made in the context of intimate relationships, where a calcu-lable exchange is difficult or impossible to pin down.On the other hand,gift givers often manifest clear intentions to give.The tension between thesetwo theoretical directives privileging intention while playing down rela-tionship is reflected in the technical requirements for valid gift giving.Before delving into the case law, however, it is worth emphasizing andjustifying a shift in focus from the preceding chapter.In the discussion ofthe development of consideration and its marginalization of gratuitous un-dertakings, the context was primarily that of business agreements.Here, incontrast, the focus is on transactions that do not simply lack consider-ation, but rather are specifically intended as gifts.I do not pretend to offeran ontology of gifts or to say that a gift could never be given in the contextof business; however, it is worth noting the difference in context betweenthose cases in which a nominally gratuitous transfer is incidental to busi-ness,3 and those in which the transfer is incidental to a relatively intimaterelationship.4Gratuitous business undertakings include, among other things, manycases of bailments, agency, surety, and guaranty (particularly surety for thedebts of married women or others of limited contractual capacity, such asinfants).These cases were the difficult ones for the new theory of contract3.An illustrative example is the recurrent case of gratuitous bailees, such as banks, who undertake tohold securities for customers.This is gratuitous, but it is actually a collateral engagement that is para-sitic on the client/service-provider relationship, which is experienced as part of business.See Preston v.Prather, 137 U.S.604, 612 13 (1891).4.This is not to say that gifts in intimate relationships are unimportant.As Brian Simpson reminds usin the context of rules governing the alienability of land, gifts were and remain very important in thedistribution of wealth.A.W.B.Simpson, Land Ownership and Economic Freedom, in The State andFreedom of Contract 13, 34 35 (Harry N.Scheiber ed., 1998). t h e g i f t b e y o n d t h e g r a v e : c a s e l a w 45at the level of categorization, because everyone acknowledged, on somelevel, the existence of a whole set of enforceable obligations without con-sideration, and thus the challenge was to distinguish these obligations fromcontract.But the second category, gifts, should have provided the easy case.As far as delineating a set of formal rules, it was easy for the theorists tosay simply that gift promises were unenforceable.The real problem for theneatness of the theory, then, is to deal with easy cases that do not conformto the ideal image, which separates strictly enforceable from unenforceablepromises.Instead, the two are liable to bleed into one another by raising thesame question that was supposed to distinguish between them: why shouldthe state intervene to enforce an obligation? In cases where some kind offairness or justice consideration seems too weighty to be ignored, the rulesbegin to bend.Indeed, a close examination of the cases leaves a reader withthe sense that ad hoc considerations of fairness and justice or propriety domuch of the work in leading judges to decisions.Litigation over the validity of gifts arises almost exclusively after the do-nor has died.It has long been accepted that in addition to donative intent,delivery of the object of the gift is necessary to effect a valid gift.Often, thisrequirement is spoken of as if it were an ancient feature of the common law,but in fact, the requirement was not established definitively until 1890.5Even after this, at which point the requirement of delivery was a part of theconsolidation of the law of consideration, there were important exceptionsto the rule requiring delivery.6 The most blatant exception was the abilityto establish a trust by parol.Thus, a declaration that A held a chattel in trustfor B without delivery of the chattel was sufficient to pass equitable title5.Cochrane v.Moore, 25 Q.B.D.57 (Eng.C.A.1890); See 7 William Holdsworth, A History of EnglishLaw 503 9 (1926); Jane B.Baron, Gifts, Bargains, and Form, 64 Ind.L.J.155, 161 64 (1989).In themid-nineteenth century, some American courts ruled that gifts could be effective without delivery.See,e.g., Leddel s Ex r v.Starr, 20 N.J.Eq.274, 287 (Ch.1869); Brinckerhoff v.Lawrence, 2 Sand.Ch.400(N.Y.Ch.1845); Ziegler v.Eckert, 6 Pa.13 (1847); see also C.R.McCorkle, Annotation, Gift of Debt toDebtor, 63 A.L.R.2d 259, 282 86 (1959).6.A note authored by Harlan Fiske Stone outlines some of the important exceptions:It is frequently stated in judicial opinions that in order to effect a gift of a chattel there must be a de-livery of the chattel by the donor to the donee or to some third person for the donee [ Pobierz całość w formacie PDF ]
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. 44 g i f t s a n d p r o m i s e s r e v i s i t e dshow that the gift cannot easily be contained within its boundaries.Whereeven rigidly formulated and widely accepted rules cannot succeed in erect-ing an impenetrable border, the classical strategy of isolating contractualobligation is threatened.A close reading of gift and gift-promise cases reveals a tension in classicalcontract theory.Classical theory set out to minimize the importance of du-ties based in relationships, in part because these were perceived to be state-imposed.Correlatively, it accorded heightened importance to individualdetermination of the content of contractual obligations.But what happenswhen these two impulses conflict, when individual intentions are rooted inincalculable relationships, as in gift cases? On the one hand, gifts and giftpromises are made in the context of intimate relationships, where a calcu-lable exchange is difficult or impossible to pin down.On the other hand,gift givers often manifest clear intentions to give.The tension between thesetwo theoretical directives privileging intention while playing down rela-tionship is reflected in the technical requirements for valid gift giving.Before delving into the case law, however, it is worth emphasizing andjustifying a shift in focus from the preceding chapter.In the discussion ofthe development of consideration and its marginalization of gratuitous un-dertakings, the context was primarily that of business agreements.Here, incontrast, the focus is on transactions that do not simply lack consider-ation, but rather are specifically intended as gifts.I do not pretend to offeran ontology of gifts or to say that a gift could never be given in the contextof business; however, it is worth noting the difference in context betweenthose cases in which a nominally gratuitous transfer is incidental to busi-ness,3 and those in which the transfer is incidental to a relatively intimaterelationship.4Gratuitous business undertakings include, among other things, manycases of bailments, agency, surety, and guaranty (particularly surety for thedebts of married women or others of limited contractual capacity, such asinfants).These cases were the difficult ones for the new theory of contract3.An illustrative example is the recurrent case of gratuitous bailees, such as banks, who undertake tohold securities for customers.This is gratuitous, but it is actually a collateral engagement that is para-sitic on the client/service-provider relationship, which is experienced as part of business.See Preston v.Prather, 137 U.S.604, 612 13 (1891).4.This is not to say that gifts in intimate relationships are unimportant.As Brian Simpson reminds usin the context of rules governing the alienability of land, gifts were and remain very important in thedistribution of wealth.A.W.B.Simpson, Land Ownership and Economic Freedom, in The State andFreedom of Contract 13, 34 35 (Harry N.Scheiber ed., 1998). t h e g i f t b e y o n d t h e g r a v e : c a s e l a w 45at the level of categorization, because everyone acknowledged, on somelevel, the existence of a whole set of enforceable obligations without con-sideration, and thus the challenge was to distinguish these obligations fromcontract.But the second category, gifts, should have provided the easy case.As far as delineating a set of formal rules, it was easy for the theorists tosay simply that gift promises were unenforceable.The real problem for theneatness of the theory, then, is to deal with easy cases that do not conformto the ideal image, which separates strictly enforceable from unenforceablepromises.Instead, the two are liable to bleed into one another by raising thesame question that was supposed to distinguish between them: why shouldthe state intervene to enforce an obligation? In cases where some kind offairness or justice consideration seems too weighty to be ignored, the rulesbegin to bend.Indeed, a close examination of the cases leaves a reader withthe sense that ad hoc considerations of fairness and justice or propriety domuch of the work in leading judges to decisions.Litigation over the validity of gifts arises almost exclusively after the do-nor has died.It has long been accepted that in addition to donative intent,delivery of the object of the gift is necessary to effect a valid gift.Often, thisrequirement is spoken of as if it were an ancient feature of the common law,but in fact, the requirement was not established definitively until 1890.5Even after this, at which point the requirement of delivery was a part of theconsolidation of the law of consideration, there were important exceptionsto the rule requiring delivery.6 The most blatant exception was the abilityto establish a trust by parol.Thus, a declaration that A held a chattel in trustfor B without delivery of the chattel was sufficient to pass equitable title5.Cochrane v.Moore, 25 Q.B.D.57 (Eng.C.A.1890); See 7 William Holdsworth, A History of EnglishLaw 503 9 (1926); Jane B.Baron, Gifts, Bargains, and Form, 64 Ind.L.J.155, 161 64 (1989).In themid-nineteenth century, some American courts ruled that gifts could be effective without delivery.See,e.g., Leddel s Ex r v.Starr, 20 N.J.Eq.274, 287 (Ch.1869); Brinckerhoff v.Lawrence, 2 Sand.Ch.400(N.Y.Ch.1845); Ziegler v.Eckert, 6 Pa.13 (1847); see also C.R.McCorkle, Annotation, Gift of Debt toDebtor, 63 A.L.R.2d 259, 282 86 (1959).6.A note authored by Harlan Fiske Stone outlines some of the important exceptions:It is frequently stated in judicial opinions that in order to effect a gift of a chattel there must be a de-livery of the chattel by the donor to the donee or to some third person for the donee [ Pobierz całość w formacie PDF ]