Good Morning (or Afternoon, you know, whatever time it may happen to be when I get this post up. I’m a busy man.) and welcome back to the triumphant return of Furry Friday here on Lawyers & Liquor, brought to you by FurPlanet! Want a bit of furry reading to do? Need a comic that you haven’t seen on the shelves in years? Just want to convince them that investing in sponsored posts on my site wasn’t a horrible use of their time and money? Drop to all fours and dart over to Furplanet to peruse their collections of literature! Plus, and I want to point this out, these folks have been really patient with me over the past year of getting the site back up and going, so they really deserve the love from you.
Additionally, let me give a “lots of love” shoutout to my Blended Whiskey level Patreon supporters, who you can find listed here. I don’t know why you folks keep handing me monthly money, but you do, and I will gladly accept it.
That said, let’s fling open the cages to the technicolor zoo and discuss a topic that tends to hit pretty goddamn hard in the furry community: the giving of money or goods to others or charities in order to help them out. Specifically, what you can and can’t do when you make a charity bid, give to someone who’s about to be on the street, or donate to a good cause.
Even more specifically, why you don’t have any goddamn right to take that money back.
I May Be A Badger, But I’m Still Not Your Lawyer.
We’ve covered this shit a lot on here, but I really need you guys to remember that I’m a lawyer in the United States. That means when I talk about questions of law, it’s going to be based on law as it exists in the United States.
I also need you to remember that although we’re going to be talking about law today, these are general concepts regarding legal topics and are very much open to differing interpretations depending on where your case is heard.
Finally, and for fuck’s sake this is important, this is an educational and hopefully entertaining discussion regarding law and copyright. It isn’t in any way, shape, or form legal advice for your specific situation. If you want me to represent you and form that magical attorney-client relationship, which will be much more disappointing than your first relationship in high school ever was, you gotta come into my office, meet with me, sign an engagement letter, and pay my ass. I’m not your lawyer. You need to go contact a lawyer in your jurisdiction regarding any legal matters and not take advice from a guy who can’t go three sentences without saying “fuck” most of the time.
All that said, everyone welcome our convenient question-asking rhetorical device for the day, Sparkledog Sammy.
Pleasure to be here, Boozy.
You’re a rhetorical device. Please don’t get familiar with me.
Why are you so mean?
It’s my schtick. I have nothing against you in theory, giant imaginary talking dog covered in sequins, but we need to be pretty clear about our relative roles here.
Fine. Be that way.
Do you have any questions about today’s topic?
I don’t wanna, now. You’ve hurt my feelings.
…Look.
I mean, I take so much abuse from you as it is. It’s not just me. It’s all of us rhetorical question askers. You really are kind of a prick to us.
I swear to god, if you don’t drop this whole “poor pitiful me” routine and get on script I’m going to replace you with a neon green fuckle fox named Frankie. I know they’ll submit to this.
Fine. So, what exactly is “The Law of Donations?”
You’ve killed the mood now. I was all geared up for this, and you had to go and be heavy about it. To be honest, I’m not even sure if you’re really interested in my answer anymore.
No, no, I am.
Are you really interested?
I promise. I am.
If you really want to know…
I do. Please, tell us the law of donations.
Fine.
Here’s the first thing that you need to realize: furries are big on charity. I mean big on charity. Conventions normally raise tens of thousands of dollars for whatever charity they’ve engaged with for that years Horse Prance And Play Con or whatever the hell they’re going for theme wise. Like, one of the three main convention themes: Cultural Appropriation, Nostalgia For a Bygone Era, Thinly Veiled Intellectual Property Infringement. Only those three con themes actually exist, unless you want to start referencing the con whose theme was, no shit, “A Coffee Shop.” Which…I mean…
Anyhow, at a convention, or even online, it’s not uncommon to see some giant green kangaroo raising money for a charity, for another person engaged in a hard time, or even for themselves. And there are multiple ways to do this, be it via auctions of donated goods or merely just links to a paypal account, or the gratuitous giving of those green bills with dead white guys on them to some schmuck walking around in a top hat.
Which all sounds pretty fine and good until you remember that the furry fandom is a fickle place, and some people live on the idea that they will be the king of fluffy shit mountain by going overboard. Which leads to common disclaimers amongst those that raise these gifts of money and items that no person should put themselves in a bad place in order to make a charity splash. A disclaimer, I should add, that sometimes gets ignored under the siren song of “I have a Visa card and a desire to be noticed by all those around me!” It’s a lot like Vegas in that manner: the flashing lights and collection of people out of a bad acid trip tend to create a “who gives a shit” environment. The big difference, though, if casinos don’t have a tendency to accept your Mastercard…whereas a charity auction or stream that doesn’t allow credit is pretty much going to end up with a box of Altoids and three used condoms – all of which the furries will promptly turn around and auction off for an excessive amount of money at the next charity auction that does accept cards.
Folks, I’ve helped to run these auctions. There’s a fidget spinner I’ve auctioned off three times now, each time for over $100, and whoever buys it just puts it back in the next goddamn auction at the next goddamn con I’m at. Furries have a weird sense of humor.
But when they get home and look at the credit card bill, away from the influence of various musks, some people (by no means a majority) have a bad habit of suddenly realizing they donated $6,969.69, and they’re going to face a little bit of buyer’s remorse. So, looking at the credit card statement, they notice that they have the right to dispute the charge and…
You see where this is going?
…Are you saying people do chargebacks on donations?
I’m also saying water is wet and because of party line votes this entire impeachment thing isn’t going to result in the removal of a president. None of this should surprise you.
I will say that it’s relatively rare, though. Most folks who pop into a fundraising or charity stream, or place a bid at a charity auction, or swipe their card at a charity event, would never dream of doing a chargeback or disputing the cost. But some people do, often stating that they “didn’t receive the goods or services they paid for.” And, because of how a lot of credit card processors work, that’s enough to get the money taken back from the donee in those circumstances pending the resolution of a chargeback dispute.
Just like some people place a bid at a charity auction and then never show up.
All of which, under the established laws regarding donations are unlawful.
Wait, a “law of donations?” So what is that?
Remember when you were kids and your buddy gave you that Nintendo game he didn’t want, and then like three weeks later he insisted he wasn’t giving it to you but merely letting you borrow it, and you had to give it back even though you clearly remember that dipshit saying “I don’t even like that one anymore, it’s stupid, you can have it” and you went home thinking about how you were absolutely going to play the shit out of that game? And then you got in a whole argument about whether or not they gave it to you, and next thing you know his dad is calling your dad and accusing you of like…pulling some Ocean’s 11 shit to steal the game? Like you had a whole crew ready to go just to steal that 3 Stooges NES game that you couldn’t get past the first level on but you liked watching the clams shoot Curly in the face so it brought you hours of joy? Remember that? Remember how you kept saying “No take backs!” like it was a legal principle and your parents told you that wasn’t how things really worked?
Okay, so, I want you to call your parents and tell them they’re assholes, because under the “laws of gifting” that’s exactly how the fuck it works.
…That seems like a really specific example.
Don’t worry about it. I now have that game on my computer, and Matt is, last I heard, in jail for non-support. So it’s not like he ever learned how to follow the law whereas I’m writing a blog post for a lot of grown people in animal costumes. Who’s the real winner here?
So…”No take backs” is an actual law?
Yes and no. We don’t have a law called “No take backs, Matt” (though we really fucking should. Fuck Matt). What we have is a common law concept evolved over the years to describe what the legal rights are in relation to a gift made to another person.
The common law, you may remember from one of the many, many times that we talked about it, is essentially the non-statutory (written) law that has developed over centuries of jurisprudence (big court man in wig and dress with hammer say something we all follow). In many situations, the common law concerns a lot of really important things – real property, contracts, torts (vroom vroom go crashy into another person), etc. And because we apply the common law so frequently, it develops into a body of unwritten law that, while jurisdictions throughout the country may vary in how they interpret parts of it, generally maintains the same core concepts.
Including the law of gifts, which is more or less “Where these conditions exist, no take backs, Matt.”
Specifically, Black’s Law Dictionary, Second Pocket Edition, on page 304 defines a “gift” as:
The act of voluntarily transferring property to another without compensation.
Black’s Law Dictionary 304 (2d Pocket ed. 2001)
Okay, but all that says is a “gift” is giving something to someone else. It doesn’t say anything about taking it back.
It does, actually, and it says it in the word “transferring,” which has a specific legal definition under word “transfer” as:
To convey or remove from one place or one person to another; to pass or hand over from one to another, especially to change over the possession or control of.
Id. at 718.
Likewise, we know that this isn’t a contract when you make a gift, because the definition is “without compensation,” which, you know, is sort of an essential element of a contract – some form of consideration.
And the law is clear: where you voluntarily give something to someone else without compensation, and it qualifies as a gift to that person, you have absolutely no right (unless some special circumstances apply) to request the return of that gift. Which, as money is a form of property, would include donations made.
You said “qualifies as a gift.” What does that mean?
Good question, Samuel of Clan Sparkledog.
See, saying “it was a gift” is generally going to be raised in an action brought by the donor (the person who done did give the thing) against the donee (the person who done did get the thing). And it’s going to be raised by the donee as a “defense” most of the time, because the donor is bringing some action for trespass to chattels (hey you have my stuff give it back), conversion (hey you have my stuff and you’re treating it like your own, pay me), or replevin (gimme that shit back now asshole). So when the person who gave $15,000 to a charity says “I want it back, it wasn’t a gift,” that’s when you raise the defense of saying “Fuck you, it was a gift man.”
And then you need to show that it was a gift, which is where the elements of gifting come into play.
See, over time the law has developed in a manner that looks at certain facts and says “Okay, if all of these elements are met we’re going to say this was a gift and therefore you can’t demand it back because you voluntarily gave it to them and it’s theirs now. No take backs, Matt.” And to that end, there are four general elements used by the courts to determine this, being:
- Capacity of the Donor
- Intent to make a gift
- Delivery of the gift to the donee
- Acceptance by the donee
And what do those elements mean? How do you prove them? Well, in many cases it’s pretty goddamn clear. The last element, “acceptance by the donee of a gift,” is pretty much assumed most places so long as the gift is of benefit to the donee and the donee is aware of it and doesn’t say “Nope, don’t fucking want it, take it back!” Likewise, delivery to the donee by the donor is going to be pretty damn easy to show: it’s literally “did you give the thing to the person,” although to be fair there are circumstances where the delivery question can be a little nuanced, like whether or not you would, for instance, need to give them an entire car (actual delivery) or just the keys to the car (implied or symbolic delivery) under the circumstances. What is sufficient for delivery (actual, implied, or symbolic) is going to vary based on the jurisdiction, and whether it is met is going to be a question of the circumstances specific to each situation and, sometimes, the nature of the thing being gifted.
But, for our purposes today, let’s say someone is doing a charity stream for, oh, the massive goddamn fires in Australia or to pay off their gigantic medical bills. Let’s say someone pops into that stream and, through a payment processing service online which we’ll call PayPig for the purposes of today’s discussion, they make a donation of $15,000.00. Let’s say, for the purposes of that discussion, the $15,000.00 then is received by the person running the stream. In that instance, we can pretty well say that the money was delivered, and that it was accepted so long as the person receiving it doesn’t then refund the amount out.
Now let’s say the person who made that donation got cold feet and decided to back it out. Where would the law fall on the first two elements?
I assume you’re about to start screaming about minors.
Yup.
The very first element we look into in a gift-giving situation is whether or not the person who gave the gift had the capacity to do so. This is pretty analogous to the contract question of “capacity to contract,” and it’s worth noting that, with some general exceptions, courts will presume all people have the capacity to contract and therefore the capacity to make a gift absent clear evidence of duress, undue influence, fraud, etc. to the contrary that would generally negate that capacity.
However, we also need to be very clear who definitely does not have the capacity to contract, and therefore the capacity to make a gift, and that is, as always goddamn minors who legally are presumed not to have the mental wherewithal to enter into agreements or give away their property. So, you know, your parents were sort of right about that NES game, and if the person who gave that $15,000.00 in a stream is a minor they also lack the capacity to make such a gift.
The same is true for a person with a mental incapacity, however we should note that, once again, at law, people are presumed to have capacity so long as they are above the age of majority and therefore a mental incapacity severe enough to remove the ability to appreciate or understand what they are doing would generally be required. This is more than “they have a developmental issue” or “they have a mental health issue.” It is more “they have a mental or developmental condition that renders them incapable of grasping what they fuck they are doing, the nature of their things, and likewise do not have capacity to do this shit.” Importantly, because courts presume mental capacity to make gifts and enter into contracts, this is going to be a hard case unless there is a guardianship or other such proceeding determining the person did not have the mental capacity to know what was what.
…What about drunks? You know…for reasons.
There is a question as to whether or not someone drunkenly throwing way too much money at a charity or streamer is invalid on the grounds that intoxication leads them to be incapacitated. While the best answer is, as always, to check with an attorney in your jurisdiction, in general someone getting themselves drunk isn’t going to negate capacity. We looked at this back in the 1954 case of Lucy v. Zehmer, now taught in law schools all over the country.
In Lucy, the facts were pretty simple. A guy named Lucy got his neighbor, Zehmer, drunk. Then he got Zehmer to agree to sell him the farm by writing a contract on a napkin. Zehmer, who thought it was all a big ol’ joke, signed the napkin contract. Then Lucy sued Zehmer, saying, essentially, a deal was a deal and he shouldn’t have let Jack Daniels do the negotiating. And…a court upheld the contract, despite Zehmer claiming he was too drunk to really understand that Lucy was being serious about this whole “Agree to sell me your farm on a napkin” thing. Indeed, the Court in that one gave us one of the best lines of contract law ever:
In his testimony Zehmer claimed that he “was high as a Georgia pine,” and that the transaction “was just a bunch of two doggoned drunks bluffing to see who could talk the biggest and say the most.” That claim is inconsistent with his attempt to testify in great detail as to what was said and what was done. It is contradicted by other evidence as to the condition of both parties, and rendered of no weight by the testimony of his wife that when Lucy left the restaurant she suggested that Zehmer drive him home. The record is convincing that Zehmer was not intoxicated to the extent of being unable to comprehend the nature and consequences of the instrument he executed, and hence that instrument is not to be invalidated on that ground.
Lucy v. Zehmer, 84 S.E.2d 516, 520 (Va. 1954)
While “high as a Georgia pine” is a hilarious line to read in a court case, the important part for our purposes is at the bottom: Zehmer was not so drunk that he couldn’t understand the nature of the contract and the consequences of executing it. And that, my friends, is a basic touchstone for the capacity not only to contract, but to give a gift while under the influence: Did you know you were giving that stuff away and did you understand that you were making a gift of it? If so, it doesn’t matter if your decision was slightly influenced by booze, that’s your own damn fault, and you still had the capacity to make the gift.
So, you know, maybe don’t give away shit when you’re drinking. Just a thought.
You said something about intent, too.
That would be the second element, donative intent. All that means is showing the person intended at the time of the giving of whatever the transferred item or cash was to make a gift of it. That’s typically proven by showing their conduct, their words, their written statements, etc. For example, in our above $15,000.00 example simply giving the gift on something clearly labeled “charity stream” or clicking a button that reads “DONATE” or posting in a chat “Here you go! Hope it helps!” can be more than enough to show the present donative intent at the time of the giving.
So what I’m saying it screenshot that shit, folks. You never know when you may need to use their weird-ass donation message to defend against an a chargeback.
So what’s the takeaway?
The takeaway is that money or property given without any expectation of return, by a person having capacity to do so, which the donee is aware of and accepts, is a gift at law, and therefore a chargeback for “services or goods” arising solely from buyer’s remorse is, indeed, unlawful in many circumstances. However, in many cases people just let it go. Which would anger the hell out of me to the extent that I would dispute any such chargeback along the grounds that it is a gift and provide the servicer with screenshots of it being made, the mechanism used to make the donation/gift, and any comments from the donor related to it. And, were disputing the chargeback to fail and it was $15,000.00, I would most goddamn definitely be seeking legal counsel regarding it, because, and this is the neat part:
Gifts, once accepted, are the property of the donee. You don’t get to just take them back because, at that point, you are actively taking the property of another person. You can imagine the myriad of legal consequences that may relate thereto, right? Like…theft, conversion, trespass…all actionable at law and the basis for a possible civil action (because the cops, in many circumstances, are going to say “Yep, sounds like a civil case to me.”
Are there any situations a gift can be taken back?
Sure. There is a thing at law known as a conditional gift. This is a gift that is only effective and complete upon the occurrence of some preceding or future event. The most common example of this is an engagement ring – a gift that is given in the expectation of a marriage, and can be taken back if the future event doesn’t take place. However, these are not enforceable in every state, which may instead say “a gift is a gift, dipshit.” Further, where to condition a gift on a promise to do something, you’re really straying into contract territory and out of the realm of gifts.
But we’ll talk about those as contracts at some future dates, because there really is no condition being placed on “Please give me this thing, thank you for giving me this thing.”
Likewise, where the person seeking donations is lying flat out about what they are going for, the gift is subject to being brought back in because the intent and capacity behind it on behalf of the donor could be considered to have been induced by fraudulent misrepresentations by the donee. For example, if Aaron Aardvark solicits donations for his surgery, then uses the money to go to the Bahamas because he never had a surgery, that’s a cause of action in fraud and civil – as well as likely criminal – causes of action exist to recoup the loss of the donor. A gift induced by fraud is not a gift. It’s damages.
So about these charity bids…
You know, I know I said I’d talk about that shit, and I will. I have the other half of this done. It’ll go up tomorrow, though. Because we’re pretty far into the morning now, and I’ve written a lot of shit, and believe it or not I have lawyer things that need to happen today.
So let’s pause button this here.
ConclUwUsion
Remember folks, please go check out our sponsor for the Furry Friday posts, FurPlanet. Want a bit of furry reading to do? Need a comic that you haven’t seen on the shelves in years? Just want to convince them that investing in sponsored posts on my site wasn’t a horrible use of their time and money? Drop to all fours and dart over to Furplanet to peruse their collections of literature!
Until next time, though, I’m Boozy, you’re not, and I’ll talk to you later.
-BB(adger)
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