‘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. 

SCENARIO 3:  My cousin is getting married and buys her fiancé a fantastic 24 karat-infused fruitcake with exotic international fruits baked right in as a gift in contemplation of that marriage. Two weeks before the wedding, my cousin and her fiancé agree not to get married. Now her fiancé wants to keep the fruitcake as a gift.

This is a conditional gift in contemplation of marriage. Like most states, Florida law says that gifts in contemplation of marriage must be returned if the parties mutually agree not to get married or if my cousin’s fiancé cancelled the marriage. If my cousin is at fault, it is likely that her fiancé could keep the fruitcake. The same of course applies to engagement rings.   

SCENARIO 4:  The fruitcake in Scenario 3 was apparently given by me to my cousin and her fiancé and then they decide not to get married. Does my cousin have to give me my fruitcake back? Did you know the Kardashian family is popular based partly on their father’s work as a lawyer? Relevant to this scenario?  You decide.   

This is a tough scenario because I would argue that the gift is a conditional gift based on my cousin’s marriage being finalized, but it is clearly different than the engagement fruitcake/ring above. Unfortunately for me, unless I specifically conditioned my fruitcake gift as a condition of marriage, I am probably SOF (sorry out of fruitcake). However, I have not been able to find any specific court case dealing with this issue in Florida. 

There are gifts that can be made on a conditional basis and others that cannot.  Before everyone starts writing conditional gifts of fruitcakes into their Final Will and Testament, please see your estate planning attorney. There are differences between conditional gifts of fruitcakes during life (if you run six miles, I will give you my fruitcake) and those made in a will (I give my son in this will my yacht made out of re-gifted fruitcakes upon his divorce of that woman he calls his wife). 

SCENARIO 5:  I made a gift to a charitable organization and now I want to recall it.

This one is easy.  Any gifts made to charitable organizations are treated as valid as much as possible under the law governing gifts.  The fruitcake almost certainly belongs to the Protection of Fruitcakes from Re-Gifting, International. 

Obviously the straight gift of a fruitcake is easy. Drop it off, have your appetizers and eggnog, give your secret Santa gift, and head on home so you hopefully never have to see that fruitcake again. 

For more complicated gifts such as gifts made in a will, for real estate, cars, expensive jewelry, bank accounts, stocks, and so forth, please make sure you decide what it is that you want to actually “give” to the other party.  Further, if you do fully plan on giving complicated and valuable property to another, consult an attorney to make sure you are actually giving what you intend to give. To avoid giving more than you thought you were giving, the same advice applies.

Let’s create some fun for all those fruitcake lovers out there! Please post some good recipes or locations to get a good fruitcake.