October 27, 2006 (Original publish date) • By Dennis Beaver
In November, I was one of the organizers of a 40th high school reunion from an all girls school I attended when my family lived in Hong Kong. About 30 of us — now in our late 50’s or early 60’s — returned to Hong Kong from all over the world for an evening of fun, looking at photos, and catching up after 40 years. It was a wonderful evening, filled with laughter and an amazement at where all those years had gone.
We brought photographs of then and now, of family, kids, our jobs — and with pictures taken during the reunion, they were all put a nice DVD by one of our classmates who lives in New Zealand not far from where the new King Kong movie was filmed. Several days ago, I received the DVDs, along with instructions to mail them to everyone who attended the reunion, and I, of course, did.
Yesterday, I received an e-mail from her, asking that each person who gets a DVD pay about $20.00 — to cover the cost of production and duplication, and she expects me to send her that money, which totals to about $400. But she never mentioned anything about wanting to be paid, and admitted in the e-mail that she had just forgotten. Apparently her husband, who is a medical doctor, insists upon the costs of producing the DVD being recovered.
No one else has asked for reimbursement for the things they brought to the event, or their time spent in organizing it, and I just assumed that the DVDs were her present to us all — much as you get after attending a wedding or birthday party. How would you analyze the situation? I want to be fair and promise to follow your advice. — Thanks, Sue.
Gift or contract?
The legal issue here is clear: Was the DVD — to all outward appearances — intended to be a gift or was there some contractual, and legal basis to insist upon payment? The law, and definition of a gift, in The United States, Hong Kong, and New Zealand is identical:
A gift is a voluntary and intentional transfer of something of value from one person to another out of affection, charity, generosity, or similar motivations, without charge or expectation of being paid. Courts will examine the totality of the circumstances to determine if an exchange of property appeared to be a gift or was to be paid for.
In the Common Law, valid in the United States and all countries whose legal system came from England, a contract is generally formed two ways — expressly, where we discuss a price for something, or by implication — actions that reveal an understanding there will be an exchange of money for some item or service.
For example, I can ask the barber how much for a haircut, hear the price, sit down in the chair and afterwards pay the quoted price, or, I can merely sit in the chair, get my haircut, and then ask how much I owe. It is understood that payment is required even though no words are spoken. It is the situation that reveals whether the parties were contracting or if a gift was intended. If, in my haircut example, I simply walk out of the barber shop without paying, it will probably wind up being a little “hairy.”
But, how do you establish that these DVDs were intended to be a gift from one classmate to another? I asked Sue if her friend at any time said or remotely suggested anything about wanting to be paid for the DVDs? “No, never,” Sue replied, adding, “I thought and everyone I gave the DVD to agreed that it was just something nice being done for us all. DVDs are so inexpensive and not difficult to assemble on a computer, so the thought that there would be a charge never entered my mind at least,” she said.
The law does not ask us to be mind readers and holds us all accountable for the reasonable and logical meaning attached to our actions. Here we have a DVD of an event to which everyone, to some extent, contributed something. It’s like taking pictures and handing out duplicate prints. The DVD is the equivalent of those photos. As it is so common to be given photos or a DVD — and the cost to duplicate one is negligible without clearly asking for payment in advance, in my book, it’s a gift.
“We do not know the relationship your friend in New Zealand has with her husband. He could be just plain cheap, or a miser, who knows, but don’t tell me an M.D. in New Zealand can’t just be a nice guy and make his wife happy. So it is clearly a situation that requires handling in an extremely gentle manner to preserve the good feelings generated that night among all of the girls,” I stressed.
I suggested that Sue forward my e-mail to her friend in New Zealand alone, as no one else needed to know that a dispute was brewing. “Let’s not damage the harmony of that evening,” I stressed. “We will keep this to ourselves, for as I see it, your friend in New Zealand is as much a victim of her husband’s odd attitude as you are, but I’m betting that she will understand these sound legal arguments and tell him to forget the whole thing.” I said.
She did that and a response indeed came in. “Thank the lawyer for his analysis — please consider those DVDs as my gift to everyone!”
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.