INTRODUCTION
Gifts are a part of human interaction all over the world. It is a generous means of expressing care, interest or gratitude. However, through the dynamics of change, humans tend to express their lack of interest or dissatisfaction in different manners. From generation to generation, this has always been experienced. Therefore, should the dynamics of change be enough reason why a person should suddenly obtain a gift that was given voluntarily? What does the Nigerian Law say concerning the principle of gifts? What is gift inter-vivos? These and many more questions will be the focus of this article.
WHAT IS A GIFT?
According to the Black’s Law Dictionary, Revised Fourth Edition, a Gift is a voluntary transfer of personal property without consideration. In other words, it is a voluntary conveyance of land, transfer of goods, chattel or interest from one person to another, gratuitously. The individual who makes the gift is known as the donor, and the individual to whom the gift is made is called the done.
A gift inter-vivos is one by which the donee becomes in the lifetime of the donor the absolute owner of the thing given.
The Supreme Court of Nigeria, defined “Gift Inter Vivos” in these words; “A gift inter-vivos is an act whereby something is voluntarily transferred from the true possessor to another person with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver”
In principle, gifts given out cannot be retrieved under the law except it is a conditional gift.
This brings us to the two kinds of gifts, which are;
- CONDITIONAL GIFT:
A conditional gift is one that is subject to or dependent on a condition. A conditional gift can be revoked if the recipient does not fulfill the conditions attached to the gift. A gift is a conditional gift and it is not final until some future event occurs. If the particular event does not occur, the person making the gift has the right to get back the gift[1]. A common example of “conditional gift” is “A shall gift his car to C, if C passes his exam” where C fails his exam, C cannot bring an action against A, for refusing to give him the car, because the gift was conditioned on the passing of his exams.
- UNCONDITIONAL GIFT:
A conditional gift is a gift for which the donor has established no specific terms for use or disposition by the recipient. This is the kind of gift that when given, cannot be retrieved by the donor under the law. This gift is legally enforceable under the law by the donee, if he can prove the following elements;
- The donor’s voluntariness;
- The intention to donate the gift;
- The existence of an identifiable and unencumbered thing or interest which is the gift itself;
- The delivery of the gift;
- The acceptance of the gift by the done;
- And finally, the absence of consideration.[2]
A gift inter-vivos is different from a gift causa mortis, because unlike a gift inter-vivos, a gift causa mortis, must possess the elements aforementioned, plus the donor’s anticipation of death. The donor in this scenario might be sick, injured, or believes that he or she is approaching death. In the event that the donor does not die, the gift is automatically revoked; and if such donor intends for the gift to still pass to such donee, he or she has to re-gift it or include it in a will as a testamentary gift.
Section 4 of the Statute of Frauds Act prescribes all transactions and transfers pertaining to land, including gifting, to be executed in writing, describing the property and signed by the donor. The purpose of this formalism is to promote the common good by protecting social interest in the security of transactions and of acquisitions against fraud and deception.
Under the Nigerian Law, “A gift inter vivos must be made openly. There must be evidence of actual handing over of the land and acceptance thereof in the presence of witnesses under native law and custom. In Madam Alice Orido v. Theophilus Akinlolu[3], Iyizoba JCA held as follows: “Customary law requires no writing for the transfer of land whether upon sale or by way of gift. In lieu of writing, however, there must be actual handing over of the land to the donee in the presence of witnesses and the acceptance by him of the gift. Acceptance is as much as customary law as the delivery of possession in the presence of witnesses; without it the gift is invalid, such acceptance must be made with as much publicity as possible…Actual delivery is not mere evidence of the gift but is part of the gift itself.”
Another question asked the most in these times is the question surrounding engagement rings. Should an engagement ring be a conditional gift or an unconditional gift? Is an engagement ring a conditional or an unconditional ring under the Nigerian Law? We would take these questions one after the other.
Should an engagement ring be a conditional gift or an unconditional gift?
Generally, there’s no one size fits all rule to answer this question. However, there have been various theories surrounding it, which have been used, even to pass foreign judgements[4]. Such as;
- TREATING ENGAGEMENT RINGS AS COMPENSATION
There have been foreign cases where a ring qualified as compensation, as long as both parties understood that fact. For example, a woman gave her boyfriend money and labour to improve his business. In exchange, he gave her a valuable diamond ring and proposed marriage. The relationship ended in a broken engagement. A judge awarded the diamond ring to the woman because the diamond ring was given to her as compensation.
- TREATING ENGAGEMENT RINGS AS CONDITIONAL GIFTS
Many foreign courts classify engagement rings as a conditional gift and award the engagement ring to the giver in broken engagement cases. The receiver of the ring may argue that saying yes to the proposal was the condition required and that condition was met. This doesn’t usually work. Courts typically reject the idea that the gift’s condition is the engagement and hold instead that the condition to be met is the marriage.
When the court decides the ring is a conditional gift, it usually takes a no-fault approach. It doesn’t matter which party is responsible for the broken engagement. If the condition (marriage) was not met for whatever reason, then the gift must be returned.
- THE FAULT-BASED APPROACH
Some foreign courts hold that it isn’t fair for the person who caused the broken engagement to keep the engagement ring. In a “fault-based” approach, if the receiver caused the broken engagement, the engagement ring is awarded to the giver.
In Pavlicic v. Vogtsberger[5], a couple was engaged. The man bought her house, two cars, and a diamond ring in anticipation of marriage. He also lent her $5,000 to buy her own business. The woman disappeared, only to resurface later having married another man and spent the funds to buy a business in another city. The court ordered all the gifts revoked. The engagement ring that the man had given to her had to be given back to him.
- THE NO-FAULT APPROACH
A fault-based approach may treat a broken engagement transaction like a broken contract. The parties couldn’t fulfill the elements of the contract, even if only one party was responsible for breaking the contract. As is typical in breach of contract cases, the most likely remedy is to restore the parties to their previous position.
Is an engagement ring a conditional or an unconditional ring under the Nigerian Law?
There is no strictly codified law as to gifts in Nigeria. However, there are trite principles, court judgements and dictums that have guided the lawyers and students over the years.
A gift as a promise of marriage, such as a ring, can be revoked where the donee refuses to marry the donor; that is to say where a contract to marry exists between the donor and donee, a claim for revocation of gifts given under that promise or contract to marry can be entertained under general law.
Furthermore, such contract must be with respect to statutory marriage under the Marriage Act, not customary law marriage; and such contract to marry will only be valid between persons of single status. It is therefore necessary for a donor of such gift to protect the transaction by expressing the conditions of the gift, in writing or advisably in the presence of witnesses. The idea of a prenuptial agreement is usually faulted as being morally incompatible, yet the law is not sentimental or moral; if prospective spouses fail to protect their interests, they should not expect a remedy under the law.
In the case of Ezeanah V. Atta[6] Tobi, JSC clearly stated that “Premarital gifts in order to qualify as gifts in furtherance of an agreement to marry, must be clearly and unequivocally traceable to an agreement on the part of the parties to marry”
Thus, we can agree that engagement rings are usually given only on the grounds of promise to marry, therefore, engagement rings are conditional gifts that can be revoked upon the non-fulfilment of the condition of marriage.
CONCLUSION
As much as there are a plethora of dictums and judgements surrounding the theory of gifts, there are not many codified laws. This implies that a recipient needs to clarify whether the item or property given is actually a gift, and a donor should clearly express the purpose or condition of a gift, if any.
People who are always in place to receive gifts or enjoy free services should learn to inquire into the purpose, conditionality and masked consideration or reciprocal obligations behind such gifts, to avoid matters that may arise in future[7].
- ‘Conditional Gift Law and Legal Definition’ < https://definitions.uslegal.com/c/conditional-gift/> accessed 24 November 2022 ↑
- Pelumi Olajengbesi Esq. ‘A Gift Is Recognised In Law As a Complete Voluntary Transfer Of Interest In a Property Or Thing And Can Not Be Rescinded, Revoked Or Retrieved’ < https://bit.ly/3OF60fG> accessed 24 November 2022 ↑
- CA/B/253/2004 ↑
- Find Law Staff, ‘What Happens to the Engagement Ring in a Broken Engagement?’ (2022) < https://bit.ly/3EZoc0k> accessed 24 November 2022 ↑
- 390 Pa. 502, 136 A.2d 127 (1957) ↑
- (2004) LPELR – 1198 (SC) ↑
- Pelumi Olajengbesi Esq. ‘A Gift Is Recognised In Law As a Complete Voluntary Transfer Of Interest In a Property Or Thing And Can Not Be Rescinded, Revoked Or Retrieved’ < https://bit.ly/3OF60fG> accessed 24 November 2022 ↑
