金融法律辅导:美国财产法(8)
is a present transfer of property by one person to another without
any consideration or compensation)
要使赠与行为有效,须符合以下三个要素(Three requirements):第一,必须正式移交或音乐会所赠与的财产;第二,必须是赠与人的主观意愿;每三,必须被接受。
There are three requirements for the making of a valid gift:
(1) there must be a delivery from the donor to the donee; (2)
the donor must possess an intent to make a present gift; and
(3) the donee must accept the gift.
赠与可以分为两类:
生前赠与(Gifts inter vivos),
临终赠与(Gifts causa mortis)
所谓生前赠与是指赠与人在其正常生活期间所进行的赠与行为。这种赠与是不可撤销的。而临终赠与是指赠与人在处于生命垂危时所进行的赠与,这种赠与在一定情况是可以改变的。
Gifts inter vivos-An inter vivos gift is a gift made during
the donor's life when the donor is not under any threat of impeding
death. An inter vivos gift, once made is irrevocable
Gifts causa mortis- a gift causa mortis is a gift made in contemplation
of immediately approaching death. A gift causa mortis is revoked
if the donor recovers from the illness that prompted the gift
交付是赠与的有效要素之一。交付可以分为以下三类:
实际交付(Actual physical Delivery)这个好理解。
推定交付Constructive delivery)- it is handing over the means of
obtaining possession such as the keys to a car for example.
However when the articles or goods are present and able to then
physical delivery must occur.
象征性交付(Symbolic delivery )- handing over something that is symbolic
to the property given such as a writing. Notice that once again
if physical delivery can occur it must occur.
下面是关于交付的几个例子,请读者仔细阅读:
Examples of different types of delivery
1. A finds O's mislaid ring. O say to A it's yours. A keeps
it. O changes her mind. Who has title O or A? A has better right
to the property because the elements are sought. The delivery
aspect is met because A has possession.
2. A finds O's mislaid ring. A returns it to O. O looks at it
and says to A: "Its your." O takes it to have it downsized
for A. O is killed. Who has title, O or A? O has better title
because A did not have possession of it. The transfer of the
ring existed before the intent to give was made. A gave the
ring back to O so manual transfer was not made.
3. A finds O's mislaid ring. A returns it to O. O says I promise
to leave it to you when I die. O is killed. Who has title, O
or A. Without a will, future intent does not qualify. It has
to be present intent to kill
4. O gives savings bank book to B. (Bank permits book holders
to withdraw funds)。 O dies before B takes money out. Who has
title to the savings account? B because we have constructive
delivery
5. O gives B check. O dies before B can cash it. Is check good?
Holding- no gift until check paid because donor retains dominion
and control of funds.
6. O gives A written instrument: I give you my wristwatch. O
reneges. This is valid gift because symbolic delivery is satisfied.
7. O hands A the leash to his pit-bull saying "Here take
this" O walks away. Has title to the pit bull passed to
A.? It is unclear it "here takes this" was an intent
to give, and if A accepted the gift