Ask the QC: 'Give me presents back or I'll sue'
An ex-lover regrets his generosity, the police call on an art lover and Jewish versus non-Jewish barristers.
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Extravagant love tokens, like cars and yachts, can be a source of conflict
Linda from Wimbledon writes: “My beloved younger sister, now approaching 50, has great personality and looks like Elizabeth Taylor, but she has always been naïve with men. After her second divorce, she got engaged to a rich man who gave her lavish gifts including clothes, jewellery, a car and a mink coat. As an engagement present, he bought a yacht in the South of Spain in their joint names. They held a big engagement party at which they also received numerous gifts from friends.
Recently she has decided he is not right for her and has called off the engagement. He is very upset and is threatening to sue her, demanding the return of his gifts and also half of the crewing and mooring charges on the yacht. He says he will waive all this if she will agree to resume dating and if they attend together 10 private sessions with a marriage guidance counsellor.
He promises not to sue if things still do not work out between them after the counselling. She is not a wealthy woman. Would this be a binding contract from which he could not afterwards withdraw?”
I will not debate whether your sister is naïve with men, because this is not a legal question and opinions might differ.
However, there is a presumption that gifts which are properly made between lovers become the absolute property of the recipient, and so it is my opinion that your sister is not legally obliged to return the jewels, the mink, the car, or even her half share in the yacht in any event.
Since changes in the law in 1970, even the engagement ring is now seen as an absolute gift, and the old civil action of damages for breach of promise of marriage has been abolished.
It would be different if he can prove that he attached an express or implied condition at the time of giving her any of the presents — that they were returnable if the marriage did not take place.
Unless he has something in writing, or perhaps witnesses to this effect, it would be very hard for him to prove it. Few judges would believe a man who claimed to have spoken such words when making gifts in the heat of love. And as the movie mogul Sam Goldwyn famously said: “An oral contract is not worth the paper it’s written on.”
The engagement presents from the friends are a different matter. The law implies a condition that they are returnable if the marriage does not happen. And the yacht expenses are more problematic. It might be held that joint ownership of the yacht implies sharing the running costs equally.
However, litigation is always a truly horrible ordeal which must be avoided at all costs. Rich, jilted men can turn very nasty. It is clear to me this man is crazy over your sister and his true motivation is not revenge but to marry her. I can see no reason why it would not be a valid and enforceable contract for her to agree to attend the 10 sessions with the marriage guidance counsellor in consideration of his waiving any and all claims he might have to the gifts and the running costs of the yacht. Who knows, she might even fall for his charms all over again.
She should first spell out the contract in writing, perhaps by exchanging careful emails, and she would need to be seen to be making a reasonably genuine effort towards reconciliation during the sessions. If she sat there filing her nails, he might claim she was in deliberate breach of contract. Finally, I caution that his dating condition must be rejected. What she actually chooses to do thereafter is, of course, her business, but any such explicit term in the contract would render it void, because the law would then regard it as an immoral contract, unenforceable as being contrary to public policy.
For the same reason, by the way, Shylock’s contract with Antonio of a pound of flesh in exchange for 3,000 ducats, in The Merchant of Venice, would not have been enforceable by either side. Until today I thought his was the strangest contract I had heard of, but now I am not so sure.
● Ron from Kingston writes: “I bought an expensive painting from a reputable antique shop in Brighton and paid by cheque and kept the receipt, but have been visited by the police who have seized it from me, saying it came originally from a country house burglary. Am I not the legal owner now, having bought it for good money and in good faith?”
Sadly no, Ron. The basic rule of law is that nobody can pass good title to goods he does not truly own in the first place. Thus the owner was always entitled to reclaim the painting from you (via the police in this instance), and your remedy now is to claim your money back from the shop. They in turn can reclaim from whoever sold it to them, and so on down the chain.
● Ariel from Golders Green writes: “I am a strictly Orthodox Jewish landlord and I wear the traditional black garb. I am in dispute with a tenant which will be heard later this year in the High Court. I have never litigated before. I am being advised within my community that I should brief a non-Jewish barrister to represent me. Do you agree?”
Happily I myself avoid landlord and tenant work, so I feel no conflict of interest when saying this advice is silly.
When I started at the bar 37 years ago it was not uncommon to hear of Jewish solicitors who advised their Jewish clients to brief gentile barristers, preferably with double-barrelled names and ideally even knighthoods in important cases. On the other hand, I once successfully defended an Egyptian army general accused of shoplifting at Marks & Spencer, who had insisted on a Jewish barrister.
In today’s more liberal, multi-ethnic society such attitudes are redundant. Your judge and/or your opposing barrister could as easily turn out to be Jewish, or a woman, or black, as a white man, and all will have received training emphasising the importance of respecting ethnic, religious and sexual diversity.
I do not believe that judges or juries pay the least attention nowadays to whether the lawyer is of the same or a different grouping to his client. Nor have I found prejudice in the courts against traditionally dressed Orthodox Jews, having represented literally dozens of them myself.
I recognise they do fear it and I always find an opportunity if I can to explain Orthodox customs to the court. That sort of explanation may well carry more weight coming from a fellow Jew — even if they were Reform!
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The above is not formal legal advice and is strictly without liability. Readers should consult a lawyer on any matter concerning them. All questions will be treated anonymously and all names changed.