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Wrapping up the year: Gifts and the law

Legal Information Column/Student Living by

Merriness might seem to be stubbornly hiding around the corner, but, believe it or not, this semester is wrapping up, and students will soon be exam-free, and many are faced with gifts aplenty as the holiday season arrives. With every joyful exclamation of “thank you” this month, one might wonder whether Quebec law has anything to say about gifts. Does the law recognize presents? If Jesse receives a new camera by stealing Alex’s heart, can Jesse lose the camera by breaking Alex’s heart? Below is a brief overview of what Quebec law has to say about presents, past and future.

What is a gift?

Perhaps rather unsentimentally, the Quebec law defines gifts as contracts. Specifically, a gift is a contract wherein a person gives up ownership of property to another person without getting anything in return.

While oral contracts are usually binding, the law requires an additional formality in order for gift contracts to count: The decision to give something as a gift needs to be recorded in writing by a notary.

However, does this mean that Alexis simply handing Regan tickets to a Habs game doesn’t carry legal weight as a gift? No, it indeed still does. This is because there is an exception to the in-writing rule for gifts of what is called “movable” property, which are essentially things that are not buildings or land. For gifts of movable property, such as hockey tickets, it is a gift if the party receiving the item accepts and immediately takes possession of the object. Regan taking the tickets from Alexis’ hands after Alexis offers them therefore makes their transaction a gift. If Alexis tells Regan that the tickets will come the following week, Regan cannot enforce the promise against Alexis unless it was written down by a notary.

Who can give gifts?

While generosity might be a virtue, the law imposes some limits on the ability to make gifts to protect certain classes of people. For example, minors can only give away property of little value—the exact amount is left to a judge to decide on a case-by-case basis. As well, a gift is null if it is given by a person currently receiving care from a health or social services establishment to an owner, director, or employee of the centre, unless the recipient is the patient’s spouse or close relative. The law declaring a gift null means that the person who wanted to give it away is still the owner.

What happens when a gift has problems?

If Avery and Drew are both students preparing for interviews, and Avery gives Drew an iron that they found one day while cleaning the basement, can Drew sue Avery if the iron suddenly turns out to be defective and burns one of Drew’s shirts? No. The person who gives a present is not responsible for the unknown defects of the item. That being said, Avery would be responsible if, for example, they knew that the iron was old and had faulty wiring, yet didn’t warn Drew and therefore Drew’s hand got burned because the iron caught on fire. This is because the person giving a gift is still responsible if they know about a problem with a gift, but do not warn the recipient and the recipient suffers bodily injury.

Can gifts be ungifted?

Surprisingly, yes. Perhaps taking a page from centuries of parenting common sense, the law says that gifts can be revoked for ingratitude. Ingratitude is defined as when the person who receives the item later acts in a reprehensible way toward the person who gave them the gift, such as hurting the person physically or emotionally. However, the person who gave the gift cannot provoke the other person to act out or cause harm in order to claim that they deserve to have their gift returned. Revoking a gift must be done within one year of the ingratitude or the day the person who gave the present became aware of the ingratitude.

In the past, courts have accepted various acts as reprehensible enough to require that a gift be returned. In one situation, an individual acted as a companion for an elderly person and promised to look after the person. However, the individual then abandoned the elderly person shortly after receiving a gift from them. In another case, one person threatened to end their romantic relationship if their partner didn’t give them their car. Finally, a present can’t be taken back if it was given in the hopes of achieving some sort of goal that later doesn’t happen. Not being wooed by a gift is not considered ingratitude, for example. Of course, ingratitude is determined by the judge on a case-by-case basis, taking into consideration the particularities of each situation.

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To look up court decisions about specific cases in the past, visit an online database, such as canlii.org.

To ask  your own question, contact the Legal Information Clinic at McGill with the directions found on our website. According to the Act respecting the Barreau du Québec, only lawyers and notaries can provide legal advice or counsel. The LICM, therefore, only provides legal information. For legal advice, please contact a lawyer.

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