'Tis the Season to Give a Fruitcake?

With Thanksgiving over, Black Friday chaos done, and the holiday season in full effect, it seemed appropriate to discuss what a gift is.  We all know the song, “The Twelve Days of Christmas” and the use of the term “my true love gave to me.”

Notably, in the Twelve Days of Christmas, no one ever gave a fruitcake. There is actually another part of the song that says, “On another day of Christmas, my true love RE-GIFTED to me, a fruitcake I would never eat. “

There is a reason for that. Let’s explore why. I have never actually eaten a fruitcake. I know that I get at least one at Thanksgiving during most years.  I place it in the freezer and wait for a Christmas party to re-gift it, and one year I think I got the same fruitcake back at a later party.  

For those that do not know, a fruitcake is a cake that may contain fruits or nuts.  It may be soaked in “adult beverages” and it ranges from homemade to store bought.  I have seen them as moist as a cupcake that fell in water and also as hard as a brick. 

Who am I kidding? Everyone knows what a fruitcake is. It is famous, in my social life, for that gift you take to the Christmas party. By the end of the night, it has either remained untouched or disappeared for re-gifting. It has never, ever, ever been the subject of a black Friday commercial (I think) and is perhaps available at 90 percent off the day after Christmas. 

Giving a fruitcake during the holiday season is the easiest example of a person’s intent to fully and completely give a gift. A gift can be loosely defined as an intent to give someone else property with the further intent to give up all interest or control over the property. Property can include Christmas presents, money, accounts, houses, cars, engagement rings, and other items where ownership can be transferred completely. I always intend to give my ownership rights over a fruitcake fully and completely to whomever I give it to. I never want to see it, touch it, smell it, or eat it ever again. 

Not all gifts are so simple, however. Here are some scenarios using the fruitcake as the example. After all, it is the holiday season and no reason we can’t have some fun as I continue my journey in turning all my readers into savvy and intelligent participants of the laws that affect them. 

SCENARIO 1:  My wife makes the most brilliant fruitcake she has ever made and wants to show it off to her friends. However, if the fruitcake is not completely consumed, she wants to sell a sample to a food cable network so she can get her own fruitcake show.  When she arrives at the party, she tells the host, “Here is a fruitcake for you, please enjoy.  However, if there is any left, I want it back.”  The host loves the fruitcake and refuses to give the last bite back. 

In this scenario, it is likely that my wife did not give a gift to the host. She retained control over the portion of the gift that was not used. A gift requires that full control of the property is handed over.  One could see how this might happen if one lets someone borrow a television or tools for a while but wants the item back when the other person is done using the item. 

SCENARIO 2: My neighbor is getting ready to go to college, and she needs nothing more than a nice fruitcake to impress her dorm-room peers. I happen to have a spare fruitcake specially designed for me by a famous chef along with a certificate of title to the fruitcake (yes, it is that good of a fruitcake that it requires a document showing who owns it…call it intellectual rights if you must to make it somewhat believable). I hand over the fruitcake, but I keep the original title in my possession. Four years later after my neighbor graduates with a pre-law degree, I demand my fruitcake back and she says it was a gift.

In this scenario, I did not likely give up my complete control of the fruitcake.  I maintained the document that demonstrates recordable title to the fruitcake and therefore it is unlikely that my neighbor could construe the fruitcake as a gift.  What if my fruitcake were a 700 series BMW? You get the point.