Taking it Back: An Anglo-American Comparative Study on Restitution for Mistaken Gifts

Abstract

The research question of this article is this: under Anglo-American law when is a donor entitled to take back the value of an executed inter vivos gift made pursuant to a mistake? Although gift giving is a ubiquitous ritual that transcends national and cultural boundaries, legal analysis on gifts is remarkably rare. So far legal literature both in Anglo-American law on gifts have tended to concentrate on promises to make gifts rather than the issue of mistaken gifts. This paper attempts to address the lacuna in this area. On a more general level, by embarking on the research question the following important questions are raised from an Anglo American perspective: Why is a mistaken transfer of wealth reversed by the law? How does a mistaken gift affect the donor's personal autonomy? What is the function of gift giving in our society? What are the motivations behind gift giving apart from altruism? How do gift exchanges form communities? How do human beings interact with each other outside the commercial world? The project of this article is to construct a normative framework to deal with the research question which draws upon works by feminist legal scholars, sociologists and anthropologists which recognizes that a gift is an important transaction which engenders social bonds such as love, affection, intimacy, friendship, trust and gratitude which forms the basis of influencing parties' future conduct in the social sphere.

Keywords: unjust enrichment, restitution, gifts, mistake, social norms