Should ‘eaten fare’ and gifts be returned when lovers part ways? 

A few weeks ago, a story did the rounds in several media outlets in Kenya about a case in which a jilted lover had supposedly sued a woman and succeeded in a claim for a refund of some money he had sent to the woman as fare for a taxi to go on a date with him.

The story, which ultimately turned out to have been untrue, was that he suggested a date with a woman who then asked him to send her some mobile money as fare and upon receipt, the woman switched off her phone and failed to appear for the date.

Aside from the comic effect of this situation, it left many divided on whether this was indeed right or mere pettiness on the part of a jilted man.

It then reminded me of the category of law on whether such a gift would be recoverable law and the interesting part of private law relating to gifts given by spouses or lovers and whether a person may in law be entitled to a refund for gifts or money paid to a lover in the event that the romantic relationship ends for one reason or another.

Giver’s free will 

The law generally frowns upon the return or refund of gifts given by romantic partners to each other during the period of their relationship.

It is normally taken by law that such a gift was offered out of the giver’s free will and is therefore irrecoverable unless there is an extremely good reason for this to be revised.

One ground on which the courts would consider returning a gift given by a lover to another is if the gift was given in contemplation of marriage, such as an engagement ring.

A common instance is in the case where a man gave an engagement ring that had been in his family for generations but subsequently, the recipient decided to call off the engagement for whatever reason.

It would be expected that such a ring should be returned to the man since the right to possession is conditional on the marriage actually going ahead. 

In such a case, the law treats the recipient as having pledged to go ahead with the transaction of marriage as a condition precedent to receiving and keeping the gift.

Such a pledge is considered to have failed if the marriage does not occur, especially if the engagement is broken by the recipient.

Even then the law is clear that a gift made to promote a lover’s affection and esteem with the other party would not be recoverable if it is not stated to be conditional or if the recipient makes no commitment while accepting the gift.

The second instance in which a court may order that a gift given by a lover to another be returned upon conclusion of their relationship would be where there is fraud on the part of the party that received the gift or in case the giver is deemed to have been taken undue advantage of the lover.

The best example of this would be in the widely known case of Norman Butler and Shea Sanger. Norman Butler was widowed after 56 years of marriage. He met a much younger woman who resembled his deceased wife and started a romantic relationship with her. 

Alzheimer’s disease

The smitten retiree started giving gifts of huge value to Sanger, who upon realising that Mr Butler was suffering from Alzheimer’s disease began making several requests for huge cash donations, including for fake cancer treatment.

By the time this was discovered by the elderly man’s children, Sanger had obtained over two million dollars from their father.

A suit was filed on the ground of fraud on the part of the woman, who insisted that these were gifts given in good faith by her romantic partner.

It was subsequently discovered that Sanger had been married all this time and had never disclosed this to Butler.

The courts ultimately held that she had acted fraudulently by taking advantage of the illness to exploit Butler.

In addition to the civil suit for recovery, criminal charges of mail fraud were brought against Sanger.

The charge was that she pretended to have a romantic interest in the old and sick man with the intention of obtaining money from him by false statements that she was available for marriage to the man.

She was convicted for postal fraud, as she had made the false requests through mail. She was convicted of this and sentenced to jail.

Courts have also held that gifts given by romantic partners should not be retained by one party where it appears that the intention of the recipient was to enrich him/herself at the expense of the other and that it would therefore be against public policy and morality not let the party keep the gift at the end of the relationship.

The other scenario would be for the courts to consider the situation under which the gift was given as a contract in purely legal terms.

In the case of Lambert, the defendant promised to marry the plaintiff with the result that the plaintiff gave her a music organ sewing machine and his farm.

When she refused to go ahead with the nuptials, the man sued her seeking the return of the goods he had given her.

His argument was that her promise to marry him was just intended to get her hands on his property.

The court agreed to a reversal of the ownership of the farm, saying that he had proved that the real consideration for the farm was that the woman would get married to the man.

Of interest, however, was that the court declined the request for the return of the sewing machine and organ for the cheeky reason that these had been given to the defendant in payment for “services” which, however, the court did not clarify.

But as is already clear, it is not everything that someone gets that may be returned. In some countries, laws have been passed that expressly prohibit the return of gifts and property given by partners to each other even after the relationship collapses

These laws are known as the “Heart Balm” laws. The State of California is one regime in which such laws have been passed.

They abolish the English Coon Law principle of breach of promise to marry and therefore no right to demand a return of gifts given in anticipation of marriage.

True, the claimants in these cases tend to be jilted men who seek solace in getting back at their former lover's by claiming back gifts given during courtship.

In fact, some courts often take attitudes that may even sound sexist. In one case the woman from whom the return of the gifts was sought was described as “having a prepossessing appearance, and more than ordinary shrewdness and enticing the man by false professions of love and affection and fraudulent promise of marriage thus overwhelming the man’s ordinary good sense”.

But this is not always the case, men as much as women would also be liable and have been found culpable of making false promises of marriage to women with the intention of draining them for selfish material benefit.

Feigning affection 

Thus, it must be conceded that while what is known in Kenya as “eating a man’s fare”, that is taking money from a proposed lover by feigning romantic affection but with the intention of not turning up for a date, may be laughable.

For the men who fall prey, it may yet have consequences in law if the gift was obtained from a lover or prospective romantic partner with the intention of fleecing them with a false promise of romantic commitment.

Mr Owino is Head of Legal at Nation Media Group PLC.