Two questions about gift law, one of which may be gross

Inspired by this Pit thread I got to wondering about gifts, and I had thought up this other question a few days ago upon getting a Swiss Colony catalog, so here goes.

Are tips given to servers legally considered compensation or gifts for purposes of gift law? I would think compensation since the IRS requires them to be reported as income and minimum wages are set at different levels depending on whether the profession is one whose practitioners are traditionally tipped, but what the SD?

Say I give someone a gift of food, which they consume. Under laws relating to gifts I have a certain amount of time to request the gift back (which varies from one jurisdiction to the next). Since presumably I would not be able to get the literal food back (this would be the gross question) would I be able to demand back its equivalent either in a similar/identical food item or in cash?


And I believe once you’ve given a gift, you’re NOT allowed to ask for it back. (Well, you can ask, but you’re not legally entitled unless you can prove you were coerced.)

I believe that alice is correct on the gift front. To make a gift you need two things – intent and delivery. Once a gift is delivered, it belongs to the recipient (unless specific other conditions were spelled out as part of the gift). I’d be curious to know why you think otherwise.

I also think she’s right on the other question, but just because I think that would make sense, not because I’ve studied the Code.


What she said.

However, if you have developed a freindly relationship with someone, small under $25 items can be considered “gifts”, as well as certain items which are normally considered to have no reeal cash value- plaques, advertising pens, and the like. Thus, if you add a $5 value pen as a “tip”- and it advertises your plumbing service- the server doesn’t have to report it- and you can deduct it as “promotional”.

It’s not a gift. It’s part of their compensation.

No, you don’t. Once you’ve given a gift, you have no legal means of enforcing its return.

The only possible exception is a “conditional gift,” such as an engagment ring (in some states). An engagement ring is given on the condition that the recipient will marry the giver. If the marriage doesn’t happen, then the giver can demand return of the ring.

OK, well, y’all are pretty much calling my business law professor a liar (and she’s an attorney licensed in Wisconsin so there). We went over in class gift law and the options in Wisconsin for the return of the gift, when the gift is made and when and how the giver can get it back. I am at work so I don’t have my notes. I’ll check them out when I get home and refresh my memory. I find it hard to believe that Wisconsin is the only state that provides for the return of gifts.

As for gifts given in contemplation of marriage (or other monies spent in preparation of marriage), which includes the ring, in Wisconsin they are only recoverable if the recipient committed fraud. Cite. Wisconsinites are also barred from filing “heartbalm” suits (for things like breach of promise to marry).

Um, are you sugesting that your Business Law professor suggested that if you gave someone a chocolate cake and they ate it, and then you decided you wanted it back you would somehow be entitled to it? Cus if so, that’s absurd.

Perhaps monitary gifts have exceptional conditions attached to them, but I’m sure that food gifts do not.

Did your professor put it this way? Because, if he did, then I’d question anything he said about the law. It’s highly unlikely that “Wisconsinites” qua Wisconsinites could be barred from filing a particular kind of action. What you mean is that Wisconsin law doesn’t recognize breach of promise to marry actions. If there exists a state where such suits are still recognised, then a plaintiff, regardless of his or her status as a “Wisconsinite” could bring such a suit there (assuming jurisdiction is proper).

Under the common law, the elements of an inter vivos gift are –

– intent to give a gift (voluntary and without expectation of consideration)
– delivery, and
– acceptance.

Once all these elements have been met, a gift is irrevocable.

Well um, no, that’s not what I’m saying, which if you’d read the OP you would understand. The question about food gifts occured to me after perusing a Swiss Colony catalog a few days ago.

No she didn’t, that clumsy phrasing was all my own.

No, I read the OP. I just couldn’t imagine a scenaro in which it would be a reasonable question.

In any case, the common law stated by acsenray seems to suggest that your question is moot. If a gift is given and accepted, food or otherwise, the give has no legal recourse to get it back, which is what I said in the first place.

Which leads me to wonder, then, why you asked if my biz law prof made the suggestion…

Common law can be overridden by statute. Perhaps my prof was discussing statutes specific to Wisconsin. Perhaps I’m misremembering the whole thing. I won’t know until I can get home and check my notes.

Well, please post back. I would be interested if there is some sort of gift law or statute.

(I can imagine one for monitary gifts, but for anything else it’s tricky.)