Gift Subject to Burden
Where a gift is made of property subject to a charge and there is no reference to the charge, then if the donor created the charge and is liable, the donee cannot be called to pay any part of it. If the donor took the property subject to the charge, whether or not he is liable to pay for it, the donee takes subject to the charge or a proportionate part of another property is subject to the charge.
The issue will sometimes arise in the context of gifts given on death. Certain presumptions apply in relation to properties given subject to charges. The matter is significant as if the gift is to be given free of the charge, the charge will be borne by other assets and accordingly, other beneficiaries will receive correspondingly less or nothing at all.
Gifts for Purposes
Where a gift or conveyance is made for a particular purpose and the donee uses it for another purpose, this may be restrained on the ground of fraud. However, if the donee expresses an intention that it be used in a particular way without a contract, express or implied that it will be so used or where the donor expresses a wish only, this will not be binding on the donee.
Generally, a donor will not be liable for damage caused by a dangerous gift. It must generally be taken as it is given. If the donor knows of some risk in it and does not warn the donee, he may be responsible.
Liability may also arise on principles of negligence. If the natural consequence of giving a dangerous gift is to cause risk to others, the donor may be liable. This may arise for example, if a dangerous article is given to a child and it is foreseeable that it may be used to damage a third party.
A gift may be made subject to conditions precedent or condition subsequent. A condition subsequent is one which must be performed after the gift has taken effect and if not performed, its non-performance will terminate the gift. A condition precedent must be performed before the gift takes effect.
If the condition is against public policy, it may be void and inoperable. If a condition precedent is impossible to give, it will not take effect. If a condition subsequent is impossible, the gift becomes unconditional.
If a spouse become engaged and the engagement is later broken off, the statute provides in supplementing the common law that gifts given may be recovered where they relate to the marriage.
Certain gifts and engagement ring if given is on the implied engagement that if the wedding is broken it, it must be returned. If the man without recognised legal justification, at common law breaks off the engagement, the ring could not be returned.
This has been varied by the Family Law Act 1981. Gifts which have no express or implied conditions are absolute if they are not given in contemplation of the marriage but are unconditional gifts, they are not affected by the breaking off the engagement. Gifts to a married couple, may either be interpreted as absolute or conditional on marriage.
Restrictions on Transfer
Generally, restrictions on the transfer of assets are invalid. Certain restrictions on alienation may be permissible where they do not completely restrain transfer. Accordingly, restrictions on transfer to particular persons or classes of persons may be upheld provided they are not inconsistent with public policy. Restrictions on transfer to anyone but a smaller category would not be permitted as they are against the public policy of free transfer.
Where an absolute gift is given, restraints on powers such as leasing and other inherent rights of alienation may be void.
Gifts in restraint of marriage are presumptively void. If however they are intended to benefit a person while they are single, then they may be upheld. If however, their intention is to restrain marriage to particular persons or classes of persons then they are likely to be invalid either on public policy or more generally on restraining marriage which is against public policy per se