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Law Offices of Ronald W. Rutz
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December 30, 1999: Gifting Etiquette; History of Scales of Justice

Q: Can I get back a Christmas present that I gave? I am ready to go to Court!

A: Maybe yes, but probably not. The general rule is that a person loses the right to demand the return of a gift once it is given. In legal terms it is an exception to the contract requirement that to have a binding transfer "consideration" (each side either gives or gives up something) must be present.

But there might be a glimmer of hope for you since there are several exceptions to the general gifting rule. Two of them come to mind. The first is the old head them off at the pass exception. If the receiver has not gain control over the Christmas present (e.g., if you had a friend deliver it but you can intercept the carrier before it is handed over), then no gift has been made.

Or if in fact this really is a contract and the other person did not perform the promised act, the Christmas gift can be retrieved. For example, in some jurisdictions an engagement ring has been ordered returned because the other side did not keep up her end of the "bargain"- marriage. In other jurisdictions, she keeps the ring because this was a gift and marriage was merely an expectation, not consideration.

Another example of "consideration" would be if there was an understanding that each of you would exchange gifts approximately equal in value and the other person broke his or her promise by giving a cheap gift (and you can prove this). Then again you might get the present back, or be awarded damages.

And no you can not get back the present by threatening to squeal to the IRS because gifts do not have to be reported as income by the receiver regardless of the amount. In fact if the gift was worth more than $10,000 (or you gave this person more than $10,000 in combined gifts in 1999), you might end up having to pay gift taxes or subtracting the excess over $10,000 from your $675,000 lifetime exception.

Q. Some of us kids read your column. Our teacher tried to explain the meanings of the scales of justice, but we didn't get it. Would you try? P.S. I don't always understand you too. Will you print this anyway?

A. The picture of a blindfolded lady holding equally balanced scales really is very old. It can be traced back to the ancient Greeks (guys like Socrates, Plato, Homer, and Aristotle) and maybe even father back to Sumerians (no not the folks in the Bible but people who lived more than twice as long before Jesus as you and I are living after Jesus.) But the Sumerians did not have the blindfolded lady.

The lady of justice is blindfolded so she will treat everyone the same as the law is suppose to do. The scales are equally balanced to show that everyone goes into Court on the same footing. Usually the plaintiff (the one seeking the Courts help) in order to get what he or she wants must present good enough argument so the scale then tilts in favor of him or her. This is called the Burden of Going Forward. If the Plaintiff doesn't do anything or doesn't tilt the scale enough, then the Court will not grant the plaintiff's request. (This is called the Burden of Proof.)

How much the scales need to be tilted varies with the kind of matter before the Court- preponderance of the evidence (a little bit ), clear and convincing (more), and beyond a reasonable doubt in criminal cases (a major tilting.)

A presumption is a "weigh" that the law places on the scales without the need for the plantiff to present evidence thus forcing the other side to step forward or lose.

Once the scale has been tilted enough (Burden of Proof) by the side that first presents evidence, then the other side, in order not to lose, must tilt the scale back so the required titling (Burden of Proof) is not achieved by the first person.

At the end the lady takes off her blindfold and sees if the scales have tilted far enough to grant the plaintiff 's request. I hope this helped and I do sympathize with your teacher having to explain this.

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