Gifting is the act of transferring the ownership of a property (itself) for free, meaning that no payment in acquired in return for the property. The item gifted must be the property itself—even if it be as an abstractly defined fraction of it—and not its usufruct. It may also be corporeal, or be abstractly owed in the event that it is gifted to someone other than the one who owes it. If however it is gifted to the one who owes the property (itself), he will be freed from the debt, and the one who gifts it will not be able to reclaim it.
2416. In the act of gifting, an offer and an acceptance is consequential, be it verbal, such as stating, “I have gifted this book to you,” and in return the person who has been gifted with the book, states, “I have accepted,” or be it by the act itself, such as the act of giving the book to another party with the intention of gifting it, and the other party also takes it with the intention of accepting it.
2417. The conditions that the giver be sane, b¡ligh and intending (the act of gifting), are consequential. The giver should also not be compelled to the act of gifting, and should not be interdicted from disposing of his property owing to feeble-mindedness or bankruptcy. He should also be the owner of the property that he is gifting, or have authority over it. Otherwise, the act of gifting will be uncommissioned, and its validity will be contingent on the permission of a person whose permission is consequential.
2418. In the act of gifting, taking possession of the property is consequential. Therefore, if a person gifts a property to another, the act of gifting will not be realized until he places it in his possession. The recipient should also take possession of the property with the permission of the giver. However, if the gifted item is in the possession of the recipient, it will suffice.
The condition of granting possession in non-transportable items, such as land and houses, is realized by the act of removing any obstructions from its use, and placing it in the possession of the recipient. In transportable items, it is realized by giving it to the other party, and the latter accepting it from him.
2419. If a property is gifted to a person who is not b¡ligh or is insane, the acceptance of their guardians, and their (the guardians) acquiring possession over it, is consequential.
If the guardian gifts it to them, but it continues to remain in his possession, the presence of the property in the possession of the guardian will suffice in lieu of granting possession.
2420. If a person gifts a property to one of his own relatives, upon granting him possession of it, he cannot return to him and seek to reclaim it. The same will apply in the event that the giver makes a condition on the recipient, and the condition is fulfilled, or the recipient gives something to the giver in return for the gift.
In cases other than the ones listed above, as long as the gifted property itself remains, the giver may reclaim the gifted property. However, if it has perished, or has been transferred to someone else, or a transformation has occurred in the property itself—for example, if the gift was a piece of cloth, and the recipient dyes it—he cannot reclaim it.
2421. A husband and wife are not subject to the rulings of relatives with respect to the binding nature of gifts.
2422. If a person gifts a property to someone, and simultaneously stipulates that the recipient give him something, or perform a task—which is legal—for him, then the person who is subject to fulfill the condition, must fulfill it. The giver may also reclaim the gift before the condition is fulfilled. Similarly if the person who is subject to fulfill the condition fails to do so, or is unable to fulfill it, the giver may reclaim the gift.
2423. If the giver or the recipient of the gift passes away prior to the acquisition of the gift, the act of gifting will be invalidated.
2424. If the giver of the gift passes away after its acquisition, his heirs may not reclaim the gift. Similarly, if the recipient passes away, the giver cannot reclaim it.
2425. Just as the gift may be reclaimed by a verbal utterance—for example the giver may state, “I withdraw my offer to gift you,”—it may also be reclaimed by an act, such as acquiring possession of it from the recipient with the intention of reclaiming it, or placing it at the disposal of a third party with the intention of reclaiming the gift. For a reclamation to be realized, the knowledge of the recipient is not consequential.
2426. If the gifted property generates a detached or a detachable increase in the property of the recipient, such as a sheep giving birth to a lamb, or a tree bearing fruits, it will belong to the recipient. If the giver reclaims gifts such as sheep or trees, he cannot take back the lamb or the fruits from the recipient.
