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A singing stocking cap, a kitsch vase from the junk shop or a voucher for an igloo building course that expires in a week. There is no joy under the Christmas tree with such gifts. “Espresso” says whether unloved gifts can be sold, given away or returned.
All Christmas gifts are bought and wrapped. But, have you also considered the consequences of giving and receiving gifts? No? Then read the following explanations on the legal situation before you put anything under the tree or open a parcel.
Giving, from a legal point of view
Giving creates mutual rights and obligations. By donating a thing, a contract comes about, a contract of donation (Article 239 OR).
The law defines the exchange of objects as “a hand-to-hand donation by the transfer of the thing from the donor to the recipient”. If, for example, the son gives his mother pralines at Christmas and accepts a pair of socks from her, a donation contract is legally concluded. Bright joy or warm words of thanks are appropriate, but not required by law.
Socks and sweets may not be particularly original, but they can always be put to good use. But what if a gift neither pleases nor fits?
- Can you refuse a gift? Yes. The donation contract only comes into effect when the gift is accepted. Now you can’t really tell from the outside of a nicely wrapped Christmas present what you’re getting yourself into. It is unclear whether a person receiving the gift may refuse the gift after unwrapping it. The Federal Supreme Court has not yet decided this question. Instead of refusing a gift, which might be interpreted as outrageous ingratitude, there are other ways of getting rid of it.
- Can you keep giving gifts? Yes. The moment the gift is handed over, the recipient becomes the owner. In the above example, the son owns the socks and the mother owns the pralines. From this moment on, the two can dispose of socks and chocolate as they please. They may use their gifts, pass them on, sell them on a platform or destroy them. But be careful: Selling gifts on online platforms or social media can put a strain on family relationships.
- Can you resell gifts? Yes. You can read the legal justification in the answers above. There are no pricing rules.
- Can you return gifts? no Once accepted, the recipient becomes the owner of the gift. The law does not provide for a right of return. This means that the person receiving the gift would have to return the gift to the donor. However, this contract would only come about if she also accepts the gift. Giving back also harbors potential for conflict. Better: give it away, sell it, take it to a thrift store or dispose of it straight away.
- Can you bring a gift back to the store?? no The same applies to the purchase contract as to the donation contract. There is no right of return in the law. However, many shops are willing to take back gifts in their original packaging as a gesture of goodwill, but usually ask for the purchase receipt. Anyone who asks for the receipt from the donor should be able to justify their request in a comprehensible manner. Otherwise there might not be any presents next Christmas.
Espresso, 12/22/22, 08:13
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