美国财产法(8)

赠与（gift）是某人将自愿将其财产转让给另一个人,并不附加任何条件和补偿。（A gift

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