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Receiving Gift then they want it Back!

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quincy

Senior Member
The case I cited from Illinois was the only one I found that discussed property given from one friend to another.

I agree the friend could have a difficult time showing it was something other than a gift, especially since there were witnesses to the giving of the laptop - but boobamgma will want those witnesses with him should the friend sue (which I continue to think unlikely).
 
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adjusterjack

Senior Member
As for burden of proof I think you are each using the phrase to mean two different things.

Taxing Matters has written the following:

It gets confusing because the term "burden of proof" has been used loosely to cover two types of burdens. The first is the burden of persuasion. In a civil case, that is the burden of the plaintiff to persuade the fact finder (the jury or judge as the case may be) that he has met the elements of his claim by a preponderance of the evidence, i.e. that his version of the facts is more likely than not the correct version. This burden typically does not shift. It is this burden to which the term burden of proof, used properly, should refer.
The burden of production is the burden of going forward with evidence on a particular issue. Thus, the plaintiff initially has the burden of production to bring forth evidence supporting his claim (i.e. to make a prima facie case). If he does that, then the burden of production will shift to the defendant to bring forth evidence to rebut the claim made by the plaintiff.
The Plaintiff has the "burden of persuasion" even if it just involves citing a presumption though a Plaintiff would be foolish to stop there without the "burden of production" of evidence to support the use of the presumption.

The Defendant then has his own "burden of production" of evidence rebutting the Plaintiff's assertions.
 

RJR

Active Member
What is the name of your state?
Missouri
A friend bought me a laptop on Dec.1st 2017 for my birthday/christmas ( since there only a week a part) last year on his/her Walmart credit card. Now as today he/she want me to pay for it when it was giving to me as a gift. I had witnesses here that day when he/she brought it to me. My question is do I have any rights on this gift or can he/she take it back or charge me for it?
Here is my 3 cents. On your side: 1. It was at christmas/birthday time for you: 2. NO request was made for a year to pay for it, as they say it was a loan: 3. As was stated about Laches, although the time to "Sue/File a Complaint" if it was a loan, arguendo, is still active, "Sitting" on ones rights is a minus for them.

I'd say you have no reason to pay for it. This is similar to breaking off an engagement, who gets to keep the engagement ring, who broke it off, does that make it a Conditional or NONconditional gift.

A says it was a gift, B says it was a loan, in your example. As in your case, who is more believable? Gift or Loan. He will have to prove his case by generally a Preponderance of the evidence submitted.
 

quincy

Senior Member
.. The Plaintiff has the "burden of persuasion" even if it just involves citing a presumption though a Plaintiff would be foolish to stop there without the "burden of production" of evidence to support the use of the presumption.

The Defendant then has his own "burden of production" of evidence rebutting the Plaintiff's assertions.
Taxing explained it well.

There is no dispute that the friend gave a laptop to boobamgma and boobamgma accepted it. If the friend is claiming that boobamgma agreed to pay him back or to give the laptop back, then the friend is saying there was never an intention to make a gift of the laptop.

The friend would want some evidence to indicate boobamgma intended to (or did) make payments or intended to give it back.

It is nice that boobamgma has witnesses if this goes to court. Without them, it could be difficult to show the laptop was a gift.
 
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LdiJ

Senior Member
What problem, LdiJ?

You asked me to provide a case to support what I said. I DID!

I asked you to provide something to support what you said. YOU CAN'T, WON'T and DIDN'T.

Don't you DARE pull this "conflicting advice" bit. It is a conflict between the law as presented by me (with case law and legal knowledge to back up what I say) and NOTHING presented by you.

Thank you, adjusterjack.
You presented case law from a different state, that in my opinion was not on point. Adjusterjack's information was much more apt for the situation. However, you also stated that the burden of proof would transfer to the defendant and that is what I have the biggest problem with. Burden of Proof is such a fundamental concept.
 

quincy

Senior Member
You presented case law from a different state, that in my opinion was not on point. Adjusterjack's information was much more apt for the situation. However, you also stated that the burden of proof would transfer to the defendant and that is what I have the biggest problem with. Burden of Proof is such a fundamental concept.
You presented nothing to support what you said when you were asked to.

You didn't understand the principles discussed in the case I cited - and it was for the legal principles discussed that the case I cited was provided.

You were wrong with your earlier statement.

If you want to provide something of legal substance, I will be happy to look it over.
 
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adjusterjack

Senior Member
However, you also stated that the burden of proof would transfer to the defendant and that is what I have the biggest problem with. Burden of Proof is such a fundamental concept.
You're not getting it. Re-read the quoted material from Taxing Matters. Both sides have a burden of proof. What do you think happens when the Plaintiff gets up and says "Missouri case decisions presume that the laptop was not a gift"? Do you think the Defendant sits there and says "Oh, you've met your burden of proof, I lose"? Of course not. The Defendant gets up a presents his evidence that the presumption doesn't apply to the giving of the laptop and that it was, indeed, a gift.

So, yes, once the Plaintiff makes his case, the burden does shift to the Defendant. THAT's the fundamental concept that Quincy is referring to and applies to all civil cases no matter what state they are in.

Basically, if you want to win a civil suit, you prove your side of it.
 

quincy

Senior Member
You're not getting it. Re-read the quoted material from Taxing Matters. Both sides have a burden of proof. What do you think happens when the Plaintiff gets up and says "Missouri case decisions presume that the laptop was not a gift"? Do you think the Defendant sits there and says "Oh, you've met your burden of proof, I lose"? Of course not. The Defendant gets up a presents his evidence that the presumption doesn't apply to the giving of the laptop and that it was, indeed, a gift.

So, yes, once the Plaintiff makes his case, the burden does shift to the Defendant. THAT's the fundamental concept that Quincy is referring to and applies to all civil cases no matter what state they are in.

Basically, if you want to win a civil suit, you prove your side of it.
I certainly hope you have made it clear to LdiJ. :)

After trying to explain the same thing over and over again, I sometimes run out of different ways to say it.
 

adjusterjack

Senior Member
I certainly hope you have made it clear to LdiJ. :)

After trying to explain the same thing over and over again, I sometimes run out of different ways to say it.
The phrase "kicking a dead horse" comes to mind.

Although, to be fair, I have had occasions to agree with LdiJ.
 

HRZ

Senior Member
it may well have been a lover situation ..but absent it being an engagement ring we need not get into contemplation of marriage issues .
 

quincy

Senior Member
A laptop is not a ring and gender is irrelevant. The relationship, however, can be relevant (friend to friend, stranger to stranger, family member to family member).
 

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