Gift Giving

Speaker A: 00:00:00

Hello and welcome to the Cognitive Engineering Podcast produced by me, Fraser McGruer, for Aleph Insights. In this series of podcasts we take a look at interesting topics and discuss what we think they tell us about analysis and decision making. I'm here with Jordan Fermanis, Tom Spence and Nick Hare of Aleph Insights and this week we're discussing Tracey Emin wanting her present back. Nick, I'm vaguely aware of this. What happened? So Tracey Emin is one of the famous young British artists who's now about 150. No, I think she's about 50 but that's irrelevant. The point is that about 10 years ago she gave to the government at the time, she gave to David Cameron in fact, a present of some artwork and it was one of her neon signs and it says more passion and you can't think of anyone it would be more appropriate for than David Cameron, a man who was famously passionate about his political ideals. Yes. But anyway he was only too gladly accepted, plopped it in one of the rooms in Downing Street where he currently resides. That's why we've seen so much passion there in the last 11 years but anyway. Precisely. Anyway she was very disappointed with Boris Johnson apparently having parties, I know this is a subject of an investigation so we won't speculate too far, but having parties during lockdown. I very disappointed in the government's behaviour recently and well to be fair to her she didn't actually ask for it back but she said she no longer wanted this artwork of hers to be to be hanging in Downing Street. I think she suggested it could be moved to an embassy somewhere or something like that but it but she blatantly saying you know adding stipulations if you like to this thing that had been a gift to the government. Now does she have the right to do that? This seems like a moral quandary to me. There's all sorts of questions and issues around this as well as a noted economist I know you're a philosopher as well. Oh yeah. Yeah so what do we really want to talk about here? Well do you have any rights, well gifts I suppose, but I mean particularly at least to begin with is what rights do you have over a gift that you give someone? Feels like there's going to be a short podcast we're going to wrap this up in five minutes. Because you think the answer is just none. Correct. Okay. Yeah I think you've got no rights, you've got no rights, you gave it, that's that. Boom, done. Tom Spence. Well I think you're right that it's a

Speaker B: 00:02:38

moral question but surely it's also a legal question. Yeah. There must be an answer in the

Speaker A: 00:02:44

law as to what rights you hold over a gift. I bet it's the same, I think it's going to be the same answer, no

Speaker B: 00:02:49

you've given it away. Well with the caveat that I'm not a lawyer and nothing I say constitutes legal advice. Yeah. My research has suggested that there are two different ways that this could be addressed legally because in most, with most things you know you could write a contract with someone and it could say you know I might give you something and you're not allowed to use it for something else but you can only enforce that under the contract. You can go to contract law and say you know you Fraser have broken this contract by having a party in front of my artwork allegedly. However if you then sell that to someone else I don't have any recourse over it. They can do what they want because I don't have a contract with them. Unless you had written and you can't sell it. Yes but that would be you that I have beef with, not the person you've sold it to. I couldn't force them to do anything or not do anything with it. However in property law there's a concept called a restrictive covenant which means I could sell you a parcel of land with a restrictive covenant that means for example you can't open a pub on it. I think that's one of the most common things. It's quite common this stuff yeah. So for example a lot of houses are sold with restrictive covenants that mean you can't turn them into pubs. Yeah also that and

Speaker A: 00:04:09

if you do sell it you know the the original seller gets you know x percentage of the of the of the increase in the value and stuff like that this is yeah. Yeah I'm not sure that counts as a

Speaker B: 00:04:18

restrictive covenant. Okay. Because a restrictive covenant is a weird one because it's not enforced under contract law. The restrictive covenant is essentially held by the estate of the person who created it. So whoever inherits their land and estate or buys their land and estate holds the right to allow the house that I've sold you to turn into a pub no matter who has bought that house from you. I'm with you. So that restrictive covenant travels with that. Travels through time yeah. So a gift of land with a restrictive covenant you could retain some rights over but a gift of any other kind would only be enforceable under contract law and if it's given as a gift there can't be a contract because there's no consideration meaning no one's paid for it so contract law doesn't kick in. So I agree with you with the exception of property.

Speaker A: 00:05:11

By the way for someone who's not a lawyer you sound nice and loyally it sounds pretty good. I think it might be worth drilling into what a gift is. I've got there is a legal definition. Go on. Would you like to know what it is? Yeah. Okay so in order to be a gift well as Tom says consider there has to be an absence of consideration be it ever so small. What does that mean? Well if I get consideration is basically any valuable thing which you give to me so so if I say I'll give you my car if you give me a back rub not a gift because you're you're giving me a back rub is consideration right and and then it becomes as Tom says part of a contract if I don't get that back rub you don't get my car. Understood. So the other things that you need to have in order for something to be a gift is you've got to have what's called donative intent. It has to be you have to intend to give gift. Now the interesting thing is so you you you can you would have if you were saying I gave you my car and I'm saying no I didn't you you would have to prove that I had donative intent but um you don't have to prove that someone accepted the gift right acceptance has to be there so it's possible to reject a gift and that stops it being a gift immediately but um it's assumed that acceptance is there so if the property is transferred and I intended to transfer it to you you that no one has to prove that you accepted it and that means that you can give a gift to a child or someone who's mentally incompetent in any way you can give a gift to someone who would not be considered competent to you know to to make judgments about things and the assumption is they would accept it because you'd be mad not to well you wouldn't look a gift horse in the mouth would you that's the point um it also has to be delivered but that doesn't have to be physically so for example I could deliver my house to you by simply giving you my key that would be considered delivery um uh the and the other thing is it has to exist I can't make your gift of a future object I said I just can't do it um I can't so I can't and this is quite there's an interesting uh issue here about birthday birds for I give you a box and say there you go there's your present and you open it hey presto that's yours but if I give you a box and say the right you don't open that to your birthday I can take it back at any time because it's not I haven't transferred it to you yet so that is what a gift is now I mean sorry just I just want to because this is before we move on to the Tracey Emmons situation just the a consideration could it be a forbearance to act right so you could say well I will promise not to play my loud music um if you uh you know if you if you you know give me a back rub again yeah back rub say um and and I would be forbearing to act but you're not allowed to uh you can't include in a contract a forbearance to do something you're not allowed to do anyway so there's an interesting question here about whether if Tracey Emmons had said right here's my more passion artwork it's not a gift it's a contract and what this is is if for some reason there's a global pandemic in 10 years time and if there's lock serious lockdown restrictions I you are not allowed to have a party in Downing Street yeah the problem is you wouldn't actually be able to make that an enforceable contract because he wouldn't shouldn't be allowed to do that anyway it's like saying I'll give you this as long as you don't murder anyone

Speaker B: 00:08:37

well it's not enforceable because on the flip side you also can't give someone a gift and say but you have to murder someone you can't make someone do something that they're not allowed to

Speaker A: 00:08:47

scellaneous provisions act of: 1970

Speaker B: 00:10:18

demand they give you a pound then there's consideration right you can sell it to them

Speaker A: 00:10:21

it's very romantic here can you sign this but um but I thought I thought that was interesting and touches on this whole question about you know whether you have rights everything you've given

Speaker C: 00:10:30

someone so yeah anyway uh yeah I think the idea of gifts is more expansive than just the law um I think there are ethics also around gift giving there are also different customs around gift giving um around the world and so and so yeah I think to sort of I don't think it's purely a legal question I think there are lots of other things that come into it um and there's also you know I suppose in in terms of the uh Tracey Emin example that giving gifts to politicians um or political parties also throws up questions of bribery and and other it verges on unethical practices as well so I think yeah that while there is like a legal sort of definition for gift giving I think there are other sort of forces at play as that govern the way we think about gifts and the appropriateness of giving gifts to certain people at what time um how they're delivered what the gift is um but yeah as Tom was mentioning there are different conditions that are associated with some as a way to I feel like I feel like

Speaker A: 00:11:34

Jordan's just that's made me think that at least we have the legal language now to reframe what he's saying yeah uh in legal terms and I would say it's like this it's like when is a gift secretly a contract and and is it the case for example did Tracey Emin hope that there'd be big tax breaks for artists was it secretly a contract I'm more interested in the state of mind of the gifter okay because what is it that's so great about David Cameron that's so awful about Boris Johnson now you might have a load of immediate answers to that right but it's it's you know I think that's what's more interesting who who the hell does Tracey Emin think she is that she does this sort of grandiloquent sort of and here's a gift of my wonderful art to weirdly to David Cameron it's a bit surprising that artists are so into David Cameron um or that artist and then you know a decade later he goes do you know what um I don't like this Boris Johnson that David Cameron was wonderful that's why I gave him that gift and I don't like this guy I think it's I just think it just talks more about the absurdity of of in this case the gifter and the the sort of vagaries and the arbitrariness of of what she's doing I I know that's what that's what gets my goat about this none of this other legal stuff um or even the moral stuff I don't think she was giving it to get David Cameron she was giving it to the government which is still in number 10 yeah but I mean oh very important distinction and I'll tell you for why yeah because of that lady uh in her will gave uh it was not a huge amount of money five hundred thousand pounds or something to the government and and apparently this is very unusual for people to donate money to the government anyway the um government at the time was the coalition and the uh Tories and the Dems decided that they would split it 80 20 between their respective parties and of course yes then there was a challenge and and it was decided that no that's going back to the taxpayer thanks that's what she meant by the government but no so it's important to draw a distinction there yeah I mean sort of um Tom introduce introduce some um precision and facty type stuff to our conversation but not too precise and not too facty well I uh I've I've got

Speaker B: 00:13:51

this was a while back but in: 2015

Speaker A: 00:15:05

using Toyota trucks which they can't help it if they're so effective and efficient if they

Speaker B: 00:15:09

they make such good technicals they're yeah they're strong enough to strap a machine gun to the back or even anti-aircraft they don't break down intended halfway to Basra yeah um and that led me to think actually is are there parallels between that and Tracey Emin obviously it's not a gift uh in this case you know they would have been sold to someone and sold through many chains but there's still the reputational impact of Toyota branding being associated with insurgent and terrorist groups around the world you know does the fact that Tracey Emin's artwork is associated with the government give her some grounds to uh opine on where it should be used yeah i doubt

Speaker A: 00:15:51

her i doubt her um i mean it feels to me that i don't think her um objections were around her own reputation but anyway i still think it's a good point i still think it's a good point um i just think it's that she just liked the last lot didn't like this lot anyway um but that's just pure conjecture um nick well that's the thing i mean the question is it and this is touching on this question of are there other things going on when you give someone a present like what is the psychology of it all is there ever such a thing as just a present like here it is that's yours now the end i don't know i'm not sure about that like if you know you kind of want you that first of you might expect some gratitude and you might be right to expect some gratitude like if you've got no gratitude whatsoever for a gift um i think you'd have the right to feel a bit peaked i i'm not saying you would because you would i think you'd be right to there's an understood kind of transaction that secretly it's a contract and you give me gratitude back right i think it's is i i think that's it's an expectation that you'll be grateful if someone gives you a gift right at the very least um is there also an expectation of reciprocation like it if i get if you keep giving someone presents and they never get you presents back at what point do you have the right to say wait a minute you know i know it's a present i know it's supposed to have no strings attached but the strings were it's time for you to take me out for dinner or buy me a bottle of brandy i i and i i think i feel like that something like that it might be that the government has has transgressed against that social code here it's rather abstract i know but tracy emin might think well i gave you that present on the grounds that you'd behave sensibly and be you know nice sensible government and you've you know you haven't given me what i expect back which is a nice sensible government took tracy out for dinner who knows

Speaker B: 00:17:50

yeah yeah the government took her out for dinner i think though that comes back to jordan's point of it if that's the case if it was a gift given in the expectation of something in return to the government that becomes a very uh morally sketchy area right you know it's uh well it goes back to

Speaker A: 00:18:08

the question of is it really a gift what is a gift and behavior yeah is basically a way is policy really being made by tracy emin in the background through the provision and withdrawal of certain works of art this needs further investigation like is she the spider at the center of the government policy web um you're giving out an artwork here perhaps withdrawing one there until until the that policy mix is precisely right for her lifestyle i don't know i'm not saying that's true but i'm also not saying it's not but i think as long as her artworks

Speaker C: 00:18:40

hanging in the in downing street there is sort of an association between her and the government of the day so i think probably what she's trying to do is sort of distance herself from this current government because otherwise people if they looked up at downing street and saw more passion oh who's that by altruism and it's sort of she might want to sort of make that distinction that just because her artwork's hanging there she doesn't actually approve of the current current government which i

Speaker B: 00:19:10

can understand perhaps just because isis like our trucks doesn't mean we like ice yeah well no

Speaker A: 00:19:15

t you know oh wow in december: 2021

Speaker C: 00:22:41

want to kick off uh jordan i'm a pretty terrible gift giver um but one of my bad ones recently was i one of my friends likes films and so i got him a t-shirt um with this film poster on it and i gave it to him oh yeah put it on and he tried to put on it was not only about four sizes too small for him a woman's t-shirt as well so like it just didn't fit or work at all and he was like oh thanks very much um can't use that at all but um the intention was there and i think that's a part of gift giving the intention yeah there you go yeah yeah yeah um tom um well nick was telling

Speaker B: 00:23:21

me about the worst gift he's ever got which was this book called the no no no no so uh i i've always enjoyed secret santa um uh and i think the the the best secret santa gift i've ever given was uh a a smoke alarm um because the next day there was a fire you had saved their life uh no no it was it was more just that no that's the guy hated it didn't want it um gave it back to you uh well no he thought it was from someone else and fell out with them brilliant um this is brilliant all because i got him a fire alarm for christmas so yeah i thought that was a resounding

Speaker A: 00:24:03

success yes i like that sewing discontent and disharmony yeah nice that's what gift giving is all about yeah yeah uh talking of discontent disarming nick um i i don't know this just popped into my head but i i i still i i don't know what i was thinking but when i was about um when i was probably about seven uh for my granny now she might have wanted this but i thought i i basically i had some spare photos of me from school and one was about is about two inches by three inches and i and that was my present to her just a little photo of me and and i i look back and i think that's yeah it's a weird thing to give someone as a present uh a little picture of yourself here's me now admittedly admittedly you know as a granny she was probably quite pleased to get that but um but it's still yes it was and i looking back i sort of think i'm not i'm glad

Speaker B: 00:24:57

i don't do that kind of thing anymore i don't know i think i think most grandparents quite like pictures of their grandkids as gifts especially if it's something like a graduation or so on but what threw me was when my mom just gave photos of my graduation to like our neighbors

Speaker A: 00:25:13

i don't think they want that to be honest i i know what i want you know in this much discussed haslet stroke book thing i know now what i would like right in in return from you nick right i want a photo of you all right you know in your school uniform not not you now on the school that would be weird yeah no i want i want a photo of you back in the day all right and that's not weird um perfectly all right yeah uh i don't know i remember when i was about 10 or so it was my mom's birthday coming up my brother was busy or whatever and said you go out fraser let's get here's a bit of money and let's get her something and i i bought a little porcelain garfield cat that was brilliant but there was gemini which was my mom's star sign so it had two heads oh that's really cool i think it's really cool and i brought i think i've got it at home now actually and so i brought that back showed it to my brother and he was let's just say underwhelmed by what i had done and it was something like it might even been her 50th or something it was a proper you know big birthday and well there was no time we just had to give it to her it was all a bit of a all quite you know awkward we're done right yeah all right thanks as always for listening to the cognitive engineering podcast i'm fraser mcgrew we've been here with tom spence nick hare and jordan fermanis of aleph in the sites until next time goodbye