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Gifts Richard Hyland 978019984348
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Gifts


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Gifts: A Study in Comparative Law is the first broad-based study of the law governing the giving and revocation of gifts ever attempted. Gift-giving is everywhere governed by social and customary norms before it encounters the law and the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides an optimal lens through which to examine how different legal systems engage with social practice. The law of gifts is well-developed both in the civil and the common laws. Richard Hyland's study provides an excellent view of the ways in which different civil and common law jurisdictions confront common issues. The legal systems discussed include principally, in the common law, those of Great Britain, the United States, and India, and, in the civil law, the private law systems of Belgium and France, Germany, Italy, and Spain. Professor Hyland also serves a critique of the dominant method in the field, which is a form of functionalism based on what is called the praesumptio similitudinis, namely the axiom that, once legal doctrine is stripped away, developed legal systems tend to reach similar practical results. His study demonstrates, to the contrary, that legal systems actually differ, not only in their approach and conceptual structure, but just as much in the results.

Indice

ACKNOWLEDGMENTS; CHAPTER 1 THE CONTEXT OF GIFT LAW; A. NOTIONS OF THE GIFT; B. APPROACHES TO GIFT GIVING; CHAPTER 2 A FLEXIBLE METHODOLOGY FOR COMPARATIVE LAW; A. A CRITIQUE OF FUNCTIONALISM; B. A COMMON SENSE APPROACH TO THE LAW OF GIFTS; CHAPTER 3 THE LEGAL CONCEPT OF THE GIFT; A. GRATUITOUSNESS; B. THE SUBJECTIVE FACTORS: AGREEMENT AND DONATIVE INTENT; C. AN INTER VIVOS TRANSFER; D. THE GIFT OBJECT; CHAPTER 4 GIFT CAPACITY; A. THE CAPACITY OF THE DONOR; B. THE CAPACITY OF THE DONEE; CHAPTER 5 THE GIFT PROMISE; A. INTRODUCTION; B. CIRCUMSTANCES PERMITTING ENFORCEMENT; C. GIFT PROMISE FORMALITIES AND THE EXECUTED GIFT; D. DEFENSES AND OTHER LIMITATIONS; CHAPTER 6 MAKING THE GIFT; A. THE DISPOSITION; B. ACCEPTANCE; C. PERFECTION; CHAPTER 7 REVOCATION; A. THE PRINCIPLE OF IRREVOCABILITY; B. CIRCUMSTANCES PERMITTING REVOCATION; CHAPTER 8 THE PLACE OF THE GIFT IN THE PRIVATE LAW; A. GIFT AS CONTRACT; B. OTHER LEGAL CHARACTERIZATIONS; C. BEYOND THE REACH OF THE LAW; INDEX



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Professor Hyland has written a work of massive but accessible comparative scholarship dealing with a problem that engages the attention of every legal system: how the law does and should regard gifts-with what mixture of permission, encouragement, and regulation. After setting the stage by reviewing the variety of social scientific treatments of the social meaning and significance of the gift, and explaining the utility and limitations of comparative studies, Hyland conducts a detailed, fascinating comparison of the approaches taken by the Western legal traditions. The book will be an indispensable resource for students of the gift, and of comparative law in general.
--Richard A. Posner,
Judge, United States Court of Appeals for the Seventh Circuit
Senior Lecturer, University of Chicago Law School


Hyland's exploration of why the legal mind so often concludes that gift giving is a danger to society is a work of scholarly comparison the likes of which we have not seen since Mauss's classic text. The book changes the terms of debate about the gift and is a must for anthropologists, sociologists, philosophers and historians and other scholars interested in the burgeoning multi-disciplinary literature on the gift.
--Chris Gregory,
Professor of Political and Economic Anthropology, University of Manchester


This book is masterful! The doctrinal material is extremely significant, consistently interesting, and exceptionally well done. The scholarly effort and intellect that went into this book are both obvious and staggering.
--Melvin A. Eisenberg,
Koret Professor of Law, Boalt Hall Law School, University of California, Berkeley


Richard Hyland's Gifts is a 'gift' to comparative law. Miraculously, this learned exposition of the law surrounding the practice of gifts is a page-turner. Going far back in time and widely across the world's legal systems, Prof. Hyland has produced a masterpiece, showing how the

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