WEBVTT
1
00:00:00.331 --> 00:00:01.331
SJC 13555.
2
00:00:04.583 --> 00:00:07.750
Bruce Johnson versus Caroline Settino.
3
00:00:14.247 --> 00:00:16.664
(door thuds)
4
00:00:27.721 --> 00:00:31.388
Okay. Attorney Siden, whenever you're ready.
5
00:00:32.519 --> 00:00:35.276
Good morning, Your Honors. May it please the Court.
6
00:00:35.276 --> 00:00:37.232
My name is Stephanie Taverna Siden,
7
00:00:37.232 --> 00:00:40.240
and I represent the appellant, Bruce Johnson.
8
00:00:40.240 --> 00:00:43.061
I'm here today to ask the court to do two things.
9
00:00:43.061 --> 00:00:47.434
First, reverse the trial court's opinion or the decision,
10
00:00:47.434 --> 00:00:50.423
and find that Mr. Johnson was not at fault
11
00:00:50.423 --> 00:00:52.127
for terminating the engagement,
12
00:00:52.127 --> 00:00:54.604
and award the engagement ring and wedding band
13
00:00:54.604 --> 00:00:56.204
back to Mr. Johnson.
14
00:00:56.204 --> 00:00:59.173
The second thing I'm here to ask the court to do
15
00:00:59.173 --> 00:01:02.197
is if the court is inclined to change the law
16
00:01:02.197 --> 00:01:05.042
with respect to engagement rings in this state,
17
00:01:05.042 --> 00:01:07.033
then it should move Massachusetts
18
00:01:07.033 --> 00:01:11.429
to a no-fault conditional gift jurisdiction.
19
00:01:11.429 --> 00:01:13.773
We should move to a no-fault jurisdiction
20
00:01:13.773 --> 00:01:16.606
because moving to a no-fault state
21
00:01:19.042 --> 00:01:22.310
aligns with the Massachusetts divorce law,
22
00:01:22.310 --> 00:01:25.034
which was enacted in 1975,
23
00:01:25.034 --> 00:01:29.201
and where the public policy under that legislation
24
00:01:30.157 --> 00:01:34.574
was to take fault finding outside of the parties away
25
00:01:36.079 --> 00:01:40.148
so that parties could decouple without acrimony.
26
00:01:40.148 --> 00:01:41.119
The same reasons apply here.
27
00:01:41.119 --> 00:01:44.970
Do you know the breakdown on the no fault versus fault?
28
00:01:44.970 --> 00:01:47.018
Did you do a 50 state survey?
29
00:01:47.018 --> 00:01:48.611
Do you have a sense of...
30
00:01:48.611 --> 00:01:50.172
With the numbers, how it breaks down.
31
00:01:50.172 --> 00:01:51.780
How many states have moved
32
00:01:51.780 --> 00:01:53.008
to no fault?
Yes, Your Honor.
33
00:01:53.008 --> 00:01:56.007
The majority view in the United States
34
00:01:56.007 --> 00:01:58.733
is no-fault conditional gift rule.
35
00:01:58.733 --> 00:02:02.096
There is one state in the country, Montana,
36
00:02:02.096 --> 00:02:04.289
which follows the opposite view,
37
00:02:04.289 --> 00:02:07.261
which is a no-fault, absolute gift rule
38
00:02:07.261 --> 00:02:09.151
or inter vivos gift rule.
39
00:02:09.151 --> 00:02:12.119
So the modern view in the majority of states
40
00:02:12.119 --> 00:02:15.861
follow the no-fault conditional gift rule.
41
00:02:15.861 --> 00:02:18.351
And there are a few states like Rhode Island
42
00:02:18.351 --> 00:02:20.675
that haven't touched on the issue yet.
43
00:02:20.675 --> 00:02:21.561
I think there were about three.
44
00:02:21.561 --> 00:02:22.644
So were...
45
00:02:22.644 --> 00:02:25.871
I mean, our decision's written in 1959, so...
46
00:02:25.871 --> 00:02:26.704
Correct.
47
00:02:26.704 --> 00:02:28.214
65 years old at this point.
48
00:02:28.214 --> 00:02:31.070
So we're in a distinct minority at this point.
49
00:02:31.070 --> 00:02:32.775
Exactly.
50
00:02:32.775 --> 00:02:35.388
Counsel, could we go back to where you started?
51
00:02:35.388 --> 00:02:38.272
I think you mentioned two rings.
52
00:02:38.272 --> 00:02:42.431
Is it the wedding band that you're also...
53
00:02:42.431 --> 00:02:46.079
That was intended for Ms. Settino,
54
00:02:46.079 --> 00:02:48.245
that you're also looking to have returned?
55
00:02:48.245 --> 00:02:49.078
Yes, Your Honor.
56
00:02:49.078 --> 00:02:50.171
Okay.
And our position with that
57
00:02:50.171 --> 00:02:52.329
is that the engagement ring
58
00:02:52.329 --> 00:02:54.754
was not a complete gift under De Cicco
59
00:02:54.754 --> 00:02:56.887
because it was a conditional gift that only...
60
00:02:56.887 --> 00:02:59.770
The gift only completed upon the marriage happening.
61
00:02:59.770 --> 00:03:01.282
The wedding band didn't even get
62
00:03:01.282 --> 00:03:02.835
to that point of a conditional gift.
63
00:03:02.835 --> 00:03:03.668
Okay.
64
00:03:03.668 --> 00:03:04.846
Because it's intended to be given
65
00:03:04.846 --> 00:03:05.765
at the time of the wedding.
66
00:03:05.765 --> 00:03:09.011
Let's go back to Dec Chico for a second.
67
00:03:09.011 --> 00:03:13.288
I think if you read the appeals court dissent,
68
00:03:13.288 --> 00:03:15.836
I think one of the concerns that I have here
69
00:03:15.836 --> 00:03:20.836
is we've never really animated what the metric ought to be
70
00:03:21.035 --> 00:03:22.307
for fault.
71
00:03:22.307 --> 00:03:27.278
And your position is that there should be a justification
72
00:03:27.278 --> 00:03:30.667
kind of analysis where you look at the...
73
00:03:30.667 --> 00:03:35.667
Not just who actually pulled the lever, but factoring why.
74
00:03:35.732 --> 00:03:38.279
And in your case you're saying, you know,
75
00:03:38.279 --> 00:03:40.731
that Mr. Johnson had... There was a bunch of things
76
00:03:40.731 --> 00:03:45.148
that the trial judge did not essentially fully credit
77
00:03:47.061 --> 00:03:49.545
in making that determination.
78
00:03:49.545 --> 00:03:50.378
Yes, Your Honor.
79
00:03:50.378 --> 00:03:51.492
So our position
80
00:03:51.492 --> 00:03:54.149
is that the trial court committed an error of law
81
00:03:54.149 --> 00:03:56.402
by failing to hold Mr. Johnson
82
00:03:56.402 --> 00:03:59.188
to the standard of proving fault.
83
00:03:59.188 --> 00:04:01.723
What the trial court held Mr. Johnson to
84
00:04:01.723 --> 00:04:05.860
was proving that Ms. Settino actually had a sexual affair.
85
00:04:05.860 --> 00:04:06.762
Mr. Johnson-
86
00:04:06.762 --> 00:04:09.315
Well that's your gloss on it.
87
00:04:09.315 --> 00:04:12.232
But the trial judge does talk about
88
00:04:13.229 --> 00:04:16.092
the fact that he credits Mr. Johnson
89
00:04:16.092 --> 00:04:19.859
in what he claims was the way he was treated
90
00:04:19.859 --> 00:04:21.443
prior to misconstruing,
91
00:04:21.443 --> 00:04:23.183
'cause that was a factual finding,
92
00:04:23.183 --> 00:04:24.832
the text messages.
93
00:04:24.832 --> 00:04:25.990
So there's...
94
00:04:25.990 --> 00:04:29.505
I'm trying to figure out how do we get to clear error
95
00:04:29.505 --> 00:04:33.561
where the trial judge is also sitting as the fact finder
96
00:04:33.561 --> 00:04:37.411
and has made factual determinations that...
97
00:04:37.411 --> 00:04:39.878
Yeah, I give you that you didn't like
98
00:04:39.878 --> 00:04:43.016
that perhaps she said things to you that you didn't like
99
00:04:43.016 --> 00:04:44.938
or that she called you a moron
100
00:04:44.938 --> 00:04:46.175
or that she wasn't there for you
101
00:04:46.175 --> 00:04:48.174
when you were going through your cancer treatments.
102
00:04:48.174 --> 00:04:50.424
But you still call this off
103
00:04:52.880 --> 00:04:55.537
because you were wrong about the text messages.
104
00:04:55.537 --> 00:04:59.049
So he does take the full universe
105
00:04:59.049 --> 00:05:02.142
of what Mr. Johnson testifies to
106
00:05:02.142 --> 00:05:05.538
in assessing the fault analysis.
107
00:05:05.538 --> 00:05:06.604
And that's why we argue
108
00:05:06.604 --> 00:05:11.604
that the court needs to imply a justification analysis
109
00:05:11.718 --> 00:05:13.135
in fault finding.
110
00:05:14.252 --> 00:05:16.946
Because without a justification analysis,
111
00:05:16.946 --> 00:05:19.270
as the trial judge wrote,
112
00:05:19.270 --> 00:05:22.115
he found that Mr. Johnson must bear the fault.
113
00:05:22.115 --> 00:05:23.621
But if you look at the facts
114
00:05:23.621 --> 00:05:26.453
from an objectively reasonable perspective,
115
00:05:26.453 --> 00:05:28.522
Mr. Johnson did nothing wrong.
116
00:05:28.522 --> 00:05:30.939
There's no action on his part
117
00:05:31.835 --> 00:05:35.109
that could be objectively identified as false.
118
00:05:35.109 --> 00:05:39.173
Well isn't the inquiry then whether or not the trial judge
119
00:05:39.173 --> 00:05:40.443
was clearly erroneous?
120
00:05:40.443 --> 00:05:42.218
Exactly.
121
00:05:42.218 --> 00:05:44.256
So why do we have to get into justification? Is it...
122
00:05:44.256 --> 00:05:45.089
Well, I...
123
00:05:45.089 --> 00:05:46.975
'Cause I think that the error...
124
00:05:46.975 --> 00:05:50.393
The evidence itself, the judge was clearly erroneous.
125
00:05:50.393 --> 00:05:55.060
But without the guidance to do a justification analysis,
126
00:05:56.342 --> 00:05:57.581
you're becoming...
127
00:05:57.581 --> 00:05:59.896
It's almost like you're imposing a strict liability.
128
00:05:59.896 --> 00:06:01.221
The party that terminates
129
00:06:01.221 --> 00:06:04.727
the engagement is at fault.
It's an uphill battle
130
00:06:04.727 --> 00:06:05.711
for you on this issue
131
00:06:05.711 --> 00:06:09.021
because of the factual finding in the deference.
132
00:06:09.021 --> 00:06:09.854
I'm sorry, Your Honor.
133
00:06:09.854 --> 00:06:11.528
It's an uphill battle because of the deference
134
00:06:11.528 --> 00:06:13.722
we have to give to the trial judge.
135
00:06:13.722 --> 00:06:17.599
Not one that the appeals court had a problem with, but...
136
00:06:17.599 --> 00:06:20.383
So my argument in that perspective, Your Honor,
137
00:06:20.383 --> 00:06:24.039
is that the deference has to be given for factual findings.
138
00:06:24.039 --> 00:06:26.863
And so if you accept the court's finding
139
00:06:26.863 --> 00:06:28.570
which we disagree with,
140
00:06:28.570 --> 00:06:29.825
that the client...
141
00:06:29.825 --> 00:06:32.336
That Mr. Johnson made his decision
142
00:06:32.336 --> 00:06:34.443
to terminate the engagement
143
00:06:34.443 --> 00:06:37.434
solely or predominantly on the text message
144
00:06:37.434 --> 00:06:39.302
and his mistaken belief
145
00:06:39.302 --> 00:06:42.496
that appellee was having a sexual affair.
146
00:06:42.496 --> 00:06:44.745
Even if you accept that is true,
147
00:06:44.745 --> 00:06:48.701
when you get to the application of those facts to the law,
148
00:06:48.701 --> 00:06:52.828
I would submit that fault finding is either a legal question
149
00:06:52.828 --> 00:06:54.944
because you're applying facts to the lower law
150
00:06:54.944 --> 00:06:56.694
or a mixed question of fact finding
151
00:06:56.694 --> 00:06:58.768
and application of the law.
152
00:06:58.768 --> 00:07:03.137
And when you get to that point of taking that conclusion
153
00:07:03.137 --> 00:07:04.649
and applying it to the law,
154
00:07:04.649 --> 00:07:06.239
it's clearly erroneous
155
00:07:06.239 --> 00:07:10.489
because no objectively reasonable person could say,
156
00:07:11.736 --> 00:07:15.578
"This man was at fault for deciding not to marry a woman
157
00:07:15.578 --> 00:07:18.328
we did trust."
I mean, we all...
158
00:07:19.410 --> 00:07:23.178
We seem to look silly trying to do this
159
00:07:23.178 --> 00:07:26.610
either under your justification or your fault analysis.
160
00:07:26.610 --> 00:07:30.782
'Cause it's so indeterminate who's at fault
161
00:07:30.782 --> 00:07:33.531
for not going forward with marriage, right?
162
00:07:33.531 --> 00:07:35.706
I mean, just don't...
163
00:07:35.706 --> 00:07:38.825
I just feel like you'll lose unless we move to a no-fault,
164
00:07:38.825 --> 00:07:42.955
because I mean, a trial judge has found this
165
00:07:42.955 --> 00:07:45.622
and you know, it's so open-ended
166
00:07:48.114 --> 00:07:50.896
that you can almost focus on anything.
167
00:07:50.896 --> 00:07:51.729
I agree, Your honor.
168
00:07:51.729 --> 00:07:54.652
And there's several cases that discuss that.
169
00:07:54.652 --> 00:07:56.937
Campbell versus Robinson, South Carolina,
170
00:07:56.937 --> 00:08:00.066
Heiman v. Parrish in Kansas,
171
00:08:00.066 --> 00:08:02.864
they discussed the trouble with fault finding
172
00:08:02.864 --> 00:08:05.483
and how amorphous it can be.
173
00:08:05.483 --> 00:08:08.683
And that's why the majority of states in this country
174
00:08:08.683 --> 00:08:10.766
have moved to a no-fault.
175
00:08:11.762 --> 00:08:13.687
But can I ask, if we move to a no-fault,
176
00:08:13.687 --> 00:08:16.177
does that mean the person who gives the ring
177
00:08:16.177 --> 00:08:17.807
always gets it back?
178
00:08:17.807 --> 00:08:18.742
I'm just...
179
00:08:18.742 --> 00:08:20.192
You know, it's...
180
00:08:20.192 --> 00:08:21.810
Again, we're...
181
00:08:21.810 --> 00:08:26.195
We don't do fault finding in divorces anymore.
182
00:08:26.195 --> 00:08:30.023
That statute that De Cicco interpreted
183
00:08:30.023 --> 00:08:34.690
also said we're not gonna get into who's to blame for...
184
00:08:36.147 --> 00:08:38.959
In other context besides the ring.
185
00:08:38.959 --> 00:08:42.403
We're not gonna have you able to sue over this.
186
00:08:42.403 --> 00:08:44.091
But I'm just trying to figure out the consequence.
187
00:08:44.091 --> 00:08:46.779
Who gets to keep the ring if we move to a no-fault?
188
00:08:46.779 --> 00:08:47.689
'Cause it's...
189
00:08:47.689 --> 00:08:50.745
The ring has been transferred in some respect.
190
00:08:50.745 --> 00:08:52.579
Our position is that if we move
191
00:08:52.579 --> 00:08:54.531
to a no-fault jurisdiction,
192
00:08:54.531 --> 00:08:57.747
the law of De Cicco, which says that it is a...
193
00:08:57.747 --> 00:08:59.700
The engagement ring is a conditional gift,
194
00:08:59.700 --> 00:09:01.943
should remain as a conditional gift.
195
00:09:01.943 --> 00:09:04.075
So that if the marriage does not happen,
196
00:09:04.075 --> 00:09:06.562
the purchaser of the ring gets the ring back.
197
00:09:06.562 --> 00:09:07.395
[Justice Wendlandt] Why?
198
00:09:07.395 --> 00:09:09.028
It's most equitable, Your honor.
199
00:09:09.028 --> 00:09:09.861
Why?
200
00:09:09.861 --> 00:09:11.899
Because the person that has spent money
201
00:09:11.899 --> 00:09:14.099
or value on the ring is doing so
202
00:09:14.099 --> 00:09:17.084
under the condition that I'm proposing to you,
203
00:09:17.084 --> 00:09:19.413
I'm expecting, you know, we are going to get married
204
00:09:19.413 --> 00:09:21.239
and we're gonna live a life together.
205
00:09:21.239 --> 00:09:24.868
If you change the gift to an inter vivos gift,
206
00:09:24.868 --> 00:09:26.226
that person that gave the ring
207
00:09:26.226 --> 00:09:29.200
loses the value of the ring if the marriage doesn't happen,
208
00:09:29.200 --> 00:09:31.441
and it becomes...
209
00:09:31.441 --> 00:09:33.074
[Justice Wendlandt] But if it was a tennis bracelet?
210
00:09:33.074 --> 00:09:34.094
Yeah.
211
00:09:34.094 --> 00:09:35.074
Or a car.
212
00:09:35.074 --> 00:09:35.907
[Justice Wendlandt] Yes.
213
00:09:35.907 --> 00:09:37.779
I agree. I think all of those-
214
00:09:37.779 --> 00:09:39.720
Why is it the ring?
215
00:09:39.720 --> 00:09:42.827
Well, the ring has special value in our society,
216
00:09:42.827 --> 00:09:43.660
traditionally...
217
00:09:43.660 --> 00:09:45.527
But no one wants to keep the ring,
218
00:09:45.527 --> 00:09:47.850
and the ring is no longer a symbol of love.
219
00:09:47.850 --> 00:09:49.729
It's a symbol of...
220
00:09:49.729 --> 00:09:51.174
You know, that the thing broke down-
221
00:09:51.174 --> 00:09:53.027
Unless it's worth $70,000.
222
00:09:53.027 --> 00:09:55.305
Exactly. And that's what Cooper V. Smith said,
223
00:09:55.305 --> 00:09:56.138
the ring-
224
00:09:56.138 --> 00:09:56.971
Then it's cash.
225
00:09:56.971 --> 00:09:58.514
It's not that the ring has any value,
226
00:09:58.514 --> 00:10:00.947
it's that the ring is worth a certain amount of money.
227
00:10:00.947 --> 00:10:04.546
And why should the person who was gifted that...
228
00:10:04.546 --> 00:10:06.126
Conditionally gifted that ring
229
00:10:06.126 --> 00:10:07.447
receive the value of the ring
230
00:10:07.447 --> 00:10:09.647
if the condition upon which the person received the ring
231
00:10:09.647 --> 00:10:10.480
doesn't happen?
232
00:10:10.480 --> 00:10:12.761
Can I ask a question about exactly what you're saying
233
00:10:12.761 --> 00:10:14.406
vis-a-vis the factual findings here?
234
00:10:14.406 --> 00:10:15.239
Sure.
235
00:10:15.239 --> 00:10:17.027
So what the trial judge found
236
00:10:17.027 --> 00:10:21.527
was that the ring was given and the ring was received.
237
00:10:23.151 --> 00:10:25.402
And I think I'm quoting the judge here,
238
00:10:25.402 --> 00:10:28.411
"In anticipation of marriage."
239
00:10:28.411 --> 00:10:31.376
What do you understand that factual finding to be?
240
00:10:31.376 --> 00:10:32.416
And specifically,
241
00:10:32.416 --> 00:10:36.351
do you understand the words in anticipation of marriage
242
00:10:36.351 --> 00:10:37.733
to be a factual finding
243
00:10:37.733 --> 00:10:42.226
that it was conditioned on the wedding going forward or not?
244
00:10:42.226 --> 00:10:44.096
Yes, Your honor.
245
00:10:44.096 --> 00:10:48.829
Under De Cicco, the findings that the ring was given
246
00:10:48.829 --> 00:10:51.754
and accepted in anticipation of marriage
247
00:10:51.754 --> 00:10:54.222
can cause it to become a conditional gift.
248
00:10:54.222 --> 00:10:56.988
So I understand how it makes De Cicco apply,
249
00:10:56.988 --> 00:10:59.980
but my question is, if we have a question
250
00:10:59.980 --> 00:11:00.813
for whatever reason,
251
00:11:00.813 --> 00:11:02.219
however this all comes out,
252
00:11:02.219 --> 00:11:05.075
that, you know, we want to actually know
253
00:11:05.075 --> 00:11:08.700
whether Mr. Johnson gave this ring
254
00:11:08.700 --> 00:11:11.856
and in his mind, and ideally also in her mind,
255
00:11:11.856 --> 00:11:14.649
they had a meeting of the minds that this was conditioned
256
00:11:14.649 --> 00:11:17.066
on the wedding going forward.
257
00:11:17.930 --> 00:11:20.396
Do we even have a factual finding right now
258
00:11:20.396 --> 00:11:24.926
on whether anyone thought that there was a condition?
259
00:11:24.926 --> 00:11:28.093
Yes. So at trial, Ms. Settino argued
260
00:11:29.235 --> 00:11:30.767
that it was an inter vivos gift.
261
00:11:30.767 --> 00:11:32.435
She presented evidence of receipts
262
00:11:32.435 --> 00:11:34.464
that she had received for the engagement ring
263
00:11:34.464 --> 00:11:36.032
in addition to several other gifts
264
00:11:36.032 --> 00:11:39.557
that Mr. Johnson had generously given Ms. Settino.
265
00:11:39.557 --> 00:11:42.394
And the court found that the engagement ring
266
00:11:42.394 --> 00:11:44.347
was not an inter vivos gift.
267
00:11:44.347 --> 00:11:47.317
The court found that it was a conditional gift
268
00:11:47.317 --> 00:11:49.768
or given in anticipation of marriage.
269
00:11:49.768 --> 00:11:52.525
And by the court's analysis
270
00:11:52.525 --> 00:11:57.192
you can infer that the language anticipation of marriage
271
00:11:59.826 --> 00:12:02.620
that he found that both parties
272
00:12:02.620 --> 00:12:05.287
gave and accepted the ring in anticipation of marriage,
273
00:12:05.287 --> 00:12:08.787
and his failure to find in appellee's view
274
00:12:12.313 --> 00:12:13.875
that it was an inter vivos gift.
275
00:12:13.875 --> 00:12:16.637
And then him getting to the application of De Cicco
276
00:12:16.637 --> 00:12:18.433
and saying it was a conditional gift
277
00:12:18.433 --> 00:12:19.805
and he states the law.
278
00:12:19.805 --> 00:12:22.021
our position is that the court found
279
00:12:22.021 --> 00:12:23.478
that it was a conditional gift.
280
00:12:23.478 --> 00:12:25.838
I understand that that was...
281
00:12:25.838 --> 00:12:27.714
That's your legal conclusion.
282
00:12:27.714 --> 00:12:30.496
But I wanna get an answer on the factual question.
283
00:12:30.496 --> 00:12:33.702
Do you think that the judge made a factual finding
284
00:12:33.702 --> 00:12:36.318
that Mr. Johnson gave the ring
285
00:12:36.318 --> 00:12:39.203
on condition that they actually get married?
286
00:12:39.203 --> 00:12:41.036
Yes, it was implied.
287
00:12:41.036 --> 00:12:42.570
Mr. Johnson gave the ring
288
00:12:42.570 --> 00:12:44.953
at the time De Cicco was a law of the land.
289
00:12:44.953 --> 00:12:48.221
There's no evidence in the record that his donative intent
290
00:12:48.221 --> 00:12:51.462
was other than giving a conditional gift,
291
00:12:51.462 --> 00:12:54.350
that he proposed to her and he said...
292
00:12:54.350 --> 00:12:56.008
He didn't explicitly say,
293
00:12:56.008 --> 00:12:56.965
"I'm giving you this ring
294
00:12:56.965 --> 00:12:58.591
on the condition that we'll be married."
295
00:12:58.591 --> 00:13:00.264
But, you know, case law addresses that issue
296
00:13:00.264 --> 00:13:01.649
that at the point in time
297
00:13:01.649 --> 00:13:03.888
somebody is proposing to another person,
298
00:13:03.888 --> 00:13:05.854
they're so blissfully in their relationship,
299
00:13:05.854 --> 00:13:07.407
they're not thinking about, you know,
300
00:13:07.407 --> 00:13:08.739
this may end badly.
301
00:13:08.739 --> 00:13:10.972
And they don't expressly state
302
00:13:10.972 --> 00:13:14.795
"This is the condition on which I'm giving you this gift."
303
00:13:14.795 --> 00:13:16.207
And that's why
304
00:13:16.207 --> 00:13:17.040
De Cicco implied it.
That apply
305
00:13:17.040 --> 00:13:19.617
to the dental work too?
306
00:13:19.617 --> 00:13:23.364
'Cause that's also done anticipation of marriage, right?
307
00:13:23.364 --> 00:13:24.357
You know, Your Honor,
308
00:13:24.357 --> 00:13:27.736
we did not challenge after appeal.
309
00:13:27.736 --> 00:13:29.998
The dental stuff any different than the ring?
310
00:13:29.998 --> 00:13:31.512
I'm trying to understand.
311
00:13:31.512 --> 00:13:33.345
Fixing her teeth is...
312
00:13:34.345 --> 00:13:35.178
It was...
313
00:13:35.178 --> 00:13:37.854
The court found that it was a promissory estoppel.
314
00:13:37.854 --> 00:13:39.898
And we only challenged the pre-judgment interest on that.
315
00:13:39.898 --> 00:13:44.315
We did not take the finding in that regard on appeal.
316
00:13:45.941 --> 00:13:47.430
So the rule that you would like
317
00:13:47.430 --> 00:13:51.004
is that if it's a ring that's exchanged,
318
00:13:51.004 --> 00:13:53.896
that that is a conditional gift?
319
00:13:53.896 --> 00:13:54.730
Yes. And I think-
320
00:13:54.730 --> 00:13:57.870
Okay, but if it's a car that's exchanged,
321
00:13:57.870 --> 00:13:59.851
that's an inter vivos gift.
322
00:13:59.851 --> 00:14:01.667
I think those situations
323
00:14:01.667 --> 00:14:04.250
you can get into the specific facts and circumstances
324
00:14:04.250 --> 00:14:07.168
because that is not something that happens everyday
325
00:14:07.168 --> 00:14:08.502
in everyday relationships,
326
00:14:08.502 --> 00:14:09.785
where before people get married.
327
00:14:09.785 --> 00:14:11.086
I think...
328
00:14:11.086 --> 00:14:15.927
Well, they move in together and they buy furniture and...
329
00:14:15.927 --> 00:14:17.863
How does that all work?
330
00:14:17.863 --> 00:14:19.843
I think you could use the same analysis
331
00:14:19.843 --> 00:14:22.323
that if it's given an anticipation of marriage
332
00:14:22.323 --> 00:14:25.525
and the marriage doesn't happen, then yes.
333
00:14:25.525 --> 00:14:27.858
but that doesn't get us the-
334
00:14:28.714 --> 00:14:31.631
But most, I've not seen any cases
335
00:14:33.116 --> 00:14:38.116
where the car is anything other than an inter vivos gift.
336
00:14:38.511 --> 00:14:41.285
Are you aware of that? I think there's a specific...
337
00:14:41.285 --> 00:14:42.650
I'm not a...
338
00:14:42.650 --> 00:14:45.650
Societal value on the ring, right?
339
00:14:49.500 --> 00:14:50.587
Or do these other...
340
00:14:50.587 --> 00:14:54.251
The other states say that it could be whatever gift.
341
00:14:54.251 --> 00:14:56.544
I'm not aware of any case
342
00:14:56.544 --> 00:15:00.266
that says that a car or a tennis bracelet were given
343
00:15:00.266 --> 00:15:01.541
in anticipation of marriage
344
00:15:01.541 --> 00:15:03.912
and that it gets, you know,
345
00:15:03.912 --> 00:15:06.374
it's not a completed gift.
346
00:15:06.374 --> 00:15:07.831
But-
But as you note,
347
00:15:07.831 --> 00:15:11.055
usually in these situations, you know,
348
00:15:11.055 --> 00:15:13.816
the dynamics are such that you don't say,
349
00:15:13.816 --> 00:15:16.067
"I give you this car if you marry me."
350
00:15:16.067 --> 00:15:16.900
(Justice Kafker chuckles)
351
00:15:16.900 --> 00:15:19.103
But the difference is the ring has a special value in-
352
00:15:19.103 --> 00:15:22.124
Right. So you're arguing for a specific...
353
00:15:22.124 --> 00:15:26.256
To this particular type of gift, have this condition.
354
00:15:26.256 --> 00:15:28.608
Yes. And I think it's most efficient for the law
355
00:15:28.608 --> 00:15:30.374
because engagement rings
356
00:15:30.374 --> 00:15:34.067
are something that happen very often many people give them.
357
00:15:34.067 --> 00:15:36.635
And it helps the judicial economy
358
00:15:36.635 --> 00:15:40.674
to say, "That in this specific circumstance,
359
00:15:40.674 --> 00:15:41.757
this is the rule,
360
00:15:41.757 --> 00:15:43.357
it's, you know, no-fault.
361
00:15:43.357 --> 00:15:44.573
Donor gets the ring back."
362
00:15:44.573 --> 00:15:47.621
It's the most equitable and it avoids litigation.
363
00:15:47.621 --> 00:15:49.503
These parties have been in litigation for six years
364
00:15:49.503 --> 00:15:51.419
and their relationship was only a year and a half.
365
00:15:51.419 --> 00:15:54.644
(Justice Kafka laughing)
366
00:15:54.644 --> 00:15:56.393
So it's really something that the court does need
367
00:15:56.393 --> 00:15:57.925
to address,
368
00:15:57.925 --> 00:16:00.011
and I think the most equitable solution
369
00:16:00.011 --> 00:16:04.178
would be to find a no-fault conditional gift rule.
370
00:16:05.015 --> 00:16:06.177
I see that my time is up.
371
00:16:06.177 --> 00:16:09.626
If anybody has further questions, I'm happy to stay.
372
00:16:09.626 --> 00:16:10.459
Could I ask one question?
373
00:16:10.459 --> 00:16:11.510
Oh yeah, sure.
374
00:16:11.510 --> 00:16:14.633
Counsel, if we were to find that though,
375
00:16:14.633 --> 00:16:17.476
how would it have retroactive applicability?
376
00:16:17.476 --> 00:16:19.280
I don't think it should, Your Honor.
377
00:16:19.280 --> 00:16:20.363
Beyond the...
378
00:16:21.368 --> 00:16:22.693
So how would that help you
379
00:16:22.693 --> 00:16:24.120
if we were to find that?
380
00:16:24.120 --> 00:16:25.356
Well, I guess, let me...
381
00:16:25.356 --> 00:16:26.813
I misspoke.
382
00:16:26.813 --> 00:16:29.585
I think retroactive applicability
383
00:16:29.585 --> 00:16:32.123
to a no-fault conditional gift rule
384
00:16:32.123 --> 00:16:35.381
is completely fair and perfectly appropriate.
385
00:16:35.381 --> 00:16:38.629
Because the no-fault part takes the litigation out
386
00:16:38.629 --> 00:16:41.058
for anybody that is breaking up
387
00:16:41.058 --> 00:16:42.960
and doesn't have to fight about fault.
388
00:16:42.960 --> 00:16:44.392
And the conditional gift rule goes-
389
00:16:44.392 --> 00:16:45.833
But this would be a new rule.
390
00:16:45.833 --> 00:16:48.296
And typically, when we announce...
391
00:16:48.296 --> 00:16:50.592
Because De Cicco's a fault-based rule.
392
00:16:50.592 --> 00:16:51.425
Right.
393
00:16:51.425 --> 00:16:54.223
And you're advocating for a no-fault rule.
394
00:16:54.223 --> 00:16:55.396
So that would be a new rule.
395
00:16:55.396 --> 00:16:58.119
And rarely do we ever say
396
00:16:58.119 --> 00:16:59.613
that when we announce a new rule
397
00:16:59.613 --> 00:17:02.567
it has retroactive application.
398
00:17:02.567 --> 00:17:05.681
So why would we do that and why would it help you?
399
00:17:05.681 --> 00:17:08.625
Well, I would say Commonwealth v. Hernandez
400
00:17:08.625 --> 00:17:10.819
would be a good guidepost to follow in that case.
401
00:17:10.819 --> 00:17:13.833
If you're willing to decide
402
00:17:13.833 --> 00:17:17.729
that it is a no-fault conditional gift rule,
403
00:17:17.729 --> 00:17:20.387
it should apply to the present case,
404
00:17:20.387 --> 00:17:22.350
if not retroactively.
405
00:17:22.350 --> 00:17:24.767
As the court did in Commonwealth versus Hernandez,
406
00:17:24.767 --> 00:17:28.074
it applied the new rule to the appellant
407
00:17:28.074 --> 00:17:28.974
that brought the case,
408
00:17:28.974 --> 00:17:31.342
but not retroactively beyond that.
409
00:17:31.342 --> 00:17:33.032
I have to say though,
410
00:17:33.032 --> 00:17:35.750
if you are inclined to make it an outright gift
411
00:17:35.750 --> 00:17:38.097
and follow an inter vivos rule
412
00:17:38.097 --> 00:17:41.237
and do away with it being a conditional gift,
413
00:17:41.237 --> 00:17:44.628
then I think it would be patently unfair to change the law
414
00:17:44.628 --> 00:17:45.727
without an announcement
415
00:17:45.727 --> 00:17:48.322
that for anybody that gives an engagement ring
416
00:17:48.322 --> 00:17:49.489
going forward,
417
00:17:50.550 --> 00:17:51.913
you won't have the right to get it back
418
00:17:51.913 --> 00:17:55.396
if the engagement ends without your fault.
419
00:17:55.396 --> 00:17:58.476
Because that's been the law in Massachusetts for 65 years.
420
00:17:58.476 --> 00:18:01.420
But I don't think the inequity goes the same way
421
00:18:01.420 --> 00:18:03.552
if you make it a conditional no-fault rule.
422
00:18:03.552 --> 00:18:07.635
Is it an inequity or is it a due process issue?
423
00:18:09.728 --> 00:18:10.904
It could be both, Your Honor.
424
00:18:10.904 --> 00:18:14.121
I definitely think it's an injust.
425
00:18:14.121 --> 00:18:17.796
Where you are relying on the law Settino...
426
00:18:17.796 --> 00:18:18.629
I'm sorry.
427
00:18:18.629 --> 00:18:21.259
Mr. Johnson gave the ring to Ms. Settino
428
00:18:21.259 --> 00:18:23.315
at a time when De Cicco was the law.
429
00:18:23.315 --> 00:18:26.978
And it said, you know, it's a conditional gift
430
00:18:26.978 --> 00:18:28.261
and if the donor...
431
00:18:28.261 --> 00:18:29.381
Their marriage doesn't happen,
432
00:18:29.381 --> 00:18:32.205
the donor can get the ring back if he's without fault.
433
00:18:32.205 --> 00:18:37.015
To change that now and say it's gonna be an inter vivos gift
434
00:18:37.015 --> 00:18:38.858
and he wouldn't have a right to get the ring back,
435
00:18:38.858 --> 00:18:41.936
I think that would be unfair and unjust.
436
00:18:41.936 --> 00:18:43.461
Thank you, Your Honors.
437
00:18:43.461 --> 00:18:44.461
Thank you.
438
00:18:45.452 --> 00:18:47.442
Attorney Rosenberg.
439
00:18:47.442 --> 00:18:49.189
Good morning. May it please the Court.
440
00:18:49.189 --> 00:18:54.106
Nick Rosenberg on behalf of the appellee, Caroline Settino.
441
00:18:55.219 --> 00:18:57.061
If this court is going to move to a new rule,
442
00:18:57.061 --> 00:18:58.041
I think there's little dispute
443
00:18:58.041 --> 00:19:00.315
that no-fault is the modern trend.
444
00:19:00.315 --> 00:19:01.609
And the parties seem to agree
445
00:19:01.609 --> 00:19:03.680
that the court should not be delving into the fault
446
00:19:03.680 --> 00:19:07.616
or justification for the end of a relationship.
447
00:19:07.616 --> 00:19:09.899
Where there seems to be a dispute
448
00:19:09.899 --> 00:19:11.804
is this conditional gift issue.
449
00:19:11.804 --> 00:19:13.014
And there are three main problems
450
00:19:13.014 --> 00:19:16.187
with the conditional gift concept and possibly others.
451
00:19:16.187 --> 00:19:17.344
One is, as we just discussed,
452
00:19:17.344 --> 00:19:20.548
it requires reading into a party's private act,
453
00:19:20.548 --> 00:19:24.119
this societal idea of what their intent is
454
00:19:24.119 --> 00:19:25.018
when it's not expressed.
455
00:19:25.018 --> 00:19:25.943
But didn't we already say
456
00:19:25.943 --> 00:19:26.991
it's a conditional gift,
457
00:19:26.991 --> 00:19:30.344
and isn't really the analysis about fault here.
458
00:19:30.344 --> 00:19:31.177
But I think-
Because didn't we say
459
00:19:31.177 --> 00:19:32.010
that...
The conditional gift...
460
00:19:32.010 --> 00:19:32.843
Didn't we say that in De Cicco
461
00:19:32.843 --> 00:19:34.358
that it's a conditional gift and-
462
00:19:34.358 --> 00:19:35.300
Absolutely. Now-
463
00:19:35.300 --> 00:19:38.654
Okay, so let's focus on the fault thing.
464
00:19:38.654 --> 00:19:42.418
The findings in the case are a little bit odd
465
00:19:42.418 --> 00:19:44.406
because there's a continuum here,
466
00:19:44.406 --> 00:19:46.175
and I guess, if we're gonna be talking
467
00:19:46.175 --> 00:19:47.379
about the fault analysis
468
00:19:47.379 --> 00:19:50.201
and whether the trial judge was clearly erroneous
469
00:19:50.201 --> 00:19:52.385
in the fault analysis,
470
00:19:52.385 --> 00:19:56.144
he does credit that there was some mistreatment
471
00:19:56.144 --> 00:19:59.222
of Mr. Johnson that went into
472
00:19:59.222 --> 00:20:03.305
that helped animate the decision to call this off
473
00:20:04.178 --> 00:20:06.345
even though he made a factual finding
474
00:20:06.345 --> 00:20:11.345
that he was wrong about the text messages in the voicemail.
475
00:20:11.398 --> 00:20:14.355
How are we supposed to assess fault?
476
00:20:14.355 --> 00:20:18.471
Where it seems like the trial judge collapses it all
477
00:20:18.471 --> 00:20:22.011
into the text messages in the voicemail,
478
00:20:22.011 --> 00:20:24.948
where Mr. Johnson testifies
479
00:20:24.948 --> 00:20:27.593
about what he perceives as his mistreatment.
480
00:20:27.593 --> 00:20:30.818
He testifies about his deliberation of this,
481
00:20:30.818 --> 00:20:33.557
that it wasn't just on hearing the voicemail
482
00:20:33.557 --> 00:20:34.724
or seeing the text message.
483
00:20:34.724 --> 00:20:37.960
He took a couple weeks to really think about that.
484
00:20:37.960 --> 00:20:41.028
How are we supposed to assess it
485
00:20:41.028 --> 00:20:44.294
without being a justification analysis?
486
00:20:44.294 --> 00:20:47.708
Yeah, I don't think the judge reduces it
487
00:20:47.708 --> 00:20:50.929
to just the text message as you said, Justice Georges,
488
00:20:50.929 --> 00:20:52.941
he looked at the context,
489
00:20:52.941 --> 00:20:54.106
looked at the relationship,
490
00:20:54.106 --> 00:20:56.488
acknowledged that there were some potential name calling
491
00:20:56.488 --> 00:20:58.186
or some fights and disputes,
492
00:20:58.186 --> 00:21:00.344
but at the end of the day said
493
00:21:00.344 --> 00:21:03.407
that it was this rash decision to jump to the conclusion,
494
00:21:03.407 --> 00:21:05.865
"You're having an affair, we're done."
495
00:21:05.865 --> 00:21:06.854
That was the predominant...
496
00:21:06.854 --> 00:21:10.051
I used the word predominant cause for the breakup.
497
00:21:10.051 --> 00:21:11.488
He looked at De Cicco,
498
00:21:11.488 --> 00:21:12.937
which was the prevailing rule at the time,
499
00:21:12.937 --> 00:21:17.207
and De Cicco said if he's not without fault.
500
00:21:17.207 --> 00:21:18.222
And the judge looked at that
501
00:21:18.222 --> 00:21:20.398
and said, "Well, he jumped to this conclusion,
502
00:21:20.398 --> 00:21:22.482
said you're having an affair and was wrong
503
00:21:22.482 --> 00:21:23.571
and called it off."
504
00:21:23.571 --> 00:21:24.618
Neither of them at the time
505
00:21:24.618 --> 00:21:27.141
otherwise wanted to break off the relationship.
506
00:21:27.141 --> 00:21:28.853
And that's a factual finding.
507
00:21:28.853 --> 00:21:31.267
And therefore, he was not without fault.
508
00:21:31.267 --> 00:21:32.812
He had some fault.
509
00:21:32.812 --> 00:21:35.143
Under De Cicco he didn't have to find...
510
00:21:35.143 --> 00:21:38.028
But doesn't that obviate all of the other testimony
511
00:21:38.028 --> 00:21:40.915
about what he said about how he was treated?
512
00:21:40.915 --> 00:21:43.327
Let me give you a really poor example
513
00:21:43.327 --> 00:21:45.455
that might make this a little bit more simple
514
00:21:45.455 --> 00:21:47.939
as to what my problem is here.
515
00:21:47.939 --> 00:21:52.939
Let's say that your partner lies to you a thousand times.
516
00:21:53.204 --> 00:21:56.954
999 of those times they actually lied to you.
517
00:21:58.411 --> 00:22:00.408
But the thousandth time was,
518
00:22:00.408 --> 00:22:01.991
they actually didn't lie to you,
519
00:22:01.991 --> 00:22:03.996
that it was actually the truth.
520
00:22:03.996 --> 00:22:07.725
So the way, by analog, the trial judge here
521
00:22:07.725 --> 00:22:11.043
seems to say, "Yeah, I credit all of these things
522
00:22:11.043 --> 00:22:13.935
that you're saying about how you feel she mistreated you,
523
00:22:13.935 --> 00:22:15.162
the way she called you names,
524
00:22:15.162 --> 00:22:18.103
that she blamed you for things that went wrong.
525
00:22:18.103 --> 00:22:22.265
But this one time when you thought she was cheating on you
526
00:22:22.265 --> 00:22:26.952
and you mistook this text message or this voicemail
527
00:22:26.952 --> 00:22:31.487
that is the sine qua non to the fault analysis.
528
00:22:31.487 --> 00:22:36.487
And the other 999 times where she lied to you is a nullity.
529
00:22:36.756 --> 00:22:38.073
It means nothing.
530
00:22:38.073 --> 00:22:38.906
To be candid,
531
00:22:38.906 --> 00:22:41.474
I think if you look at what Judge Glenny was doing,
532
00:22:41.474 --> 00:22:44.201
I think he sort of did a justification analysis.
533
00:22:44.201 --> 00:22:45.614
I think he did a little bit of it.
534
00:22:45.614 --> 00:22:47.567
I think he did, because I think he looks at these things
535
00:22:47.567 --> 00:22:50.586
and said, "It wasn't reasonable. It was..."
536
00:22:50.586 --> 00:22:52.693
It wasn't justified in breaking this off."
537
00:22:52.693 --> 00:22:54.479
You know, maybe Judge Glenny was thinking,
538
00:22:54.479 --> 00:22:57.188
normally, if you found these texts you might say,
539
00:22:57.188 --> 00:22:59.399
"Hey, what is this? Let's talk about it."
540
00:22:59.399 --> 00:23:02.855
And then when the partner says, "It's nothing."
541
00:23:02.855 --> 00:23:04.429
That he and his wife were invited to the wedding.
542
00:23:04.429 --> 00:23:05.580
That's it exactly.
Right?
543
00:23:05.580 --> 00:23:06.413
That's it exactly.
He and the wife
544
00:23:06.413 --> 00:23:07.246
were invited into the wedding.
545
00:23:07.246 --> 00:23:08.420
Because that was informed
546
00:23:08.420 --> 00:23:09.776
by the stuff that happened before.
547
00:23:09.776 --> 00:23:10.823
But he didn't...
548
00:23:10.823 --> 00:23:12.612
But Johnson didn't do that.
549
00:23:12.612 --> 00:23:15.344
He jumped to the conclusion and said, "I'm outta here."
550
00:23:15.344 --> 00:23:16.465
So he's not without fault.
551
00:23:16.465 --> 00:23:19.219
And I think, to your... Well, maybe on the same page.
552
00:23:19.219 --> 00:23:21.079
That, like, I mean, it seems to me that this discussion
553
00:23:21.079 --> 00:23:24.460
is a CEG as to why we have to move to the no-fault.
554
00:23:24.460 --> 00:23:25.800
Precisely.
Exactly. Right.
555
00:23:25.800 --> 00:23:27.270
Yeah.
So you started to...
556
00:23:27.270 --> 00:23:29.815
You started your argument with the three reasons
557
00:23:29.815 --> 00:23:32.926
why conditional gift no-fault is not good.
558
00:23:32.926 --> 00:23:35.515
And I've now lost track of the first one.
559
00:23:35.515 --> 00:23:37.244
What were the three?
Thank you, Justice
560
00:23:37.244 --> 00:23:38.929
for bringing me back to that.
561
00:23:38.929 --> 00:23:41.489
The first is it requires the court reading
562
00:23:41.489 --> 00:23:42.727
into a private act,
563
00:23:42.727 --> 00:23:45.297
this condition, that's not there.
564
00:23:45.297 --> 00:23:48.970
I think what came out of the discussion earlier was that...
565
00:23:48.970 --> 00:23:50.042
I think it was even conceded
566
00:23:50.042 --> 00:23:54.143
that the Johnson may not have intended that condition.
567
00:23:54.143 --> 00:23:56.491
And certainly Ms. Settino who said,
568
00:23:56.491 --> 00:23:59.340
"I got these receipts, he gave me this ring.
569
00:23:59.340 --> 00:24:02.408
The receipts are so that I can go return it."
570
00:24:02.408 --> 00:24:05.097
I mean, it maybe silly,
571
00:24:05.097 --> 00:24:07.363
but he clearly gave her the engagement ring
572
00:24:07.363 --> 00:24:09.393
'cause he thought they were going to get married.
573
00:24:09.393 --> 00:24:11.836
Absolutely. An anticipation they'd get married.
574
00:24:11.836 --> 00:24:13.336
I mean-
And what are we reading in?
575
00:24:13.336 --> 00:24:14.656
Right.
Yeah, so there's...
576
00:24:14.656 --> 00:24:16.314
So anticipating "We'll get married."
577
00:24:16.314 --> 00:24:20.527
Is different than, "I'm giving you this thing of value."
578
00:24:20.527 --> 00:24:21.360
Right.
Right.
579
00:24:21.360 --> 00:24:23.548
"It's a gift. I feel good enough about this relationship
580
00:24:23.548 --> 00:24:25.344
and whereas I'm confident that we're gonna be together.
581
00:24:25.344 --> 00:24:26.863
So I'm willing to part with something of value
582
00:24:26.863 --> 00:24:29.369
and give it to you." But...
Is that what the law...
583
00:24:29.369 --> 00:24:30.487
I just...
584
00:24:30.487 --> 00:24:33.656
Could you explain what the modern rule is and how it works?
585
00:24:33.656 --> 00:24:38.074
'Cause this old rule seems old-fashioned and kind of silly.
586
00:24:38.074 --> 00:24:41.607
So what is the modern rule and how does it...
587
00:24:41.607 --> 00:24:43.311
The modern rule of conditional gifts
588
00:24:43.311 --> 00:24:44.539
or the modern rule of...
589
00:24:44.539 --> 00:24:45.372
Forget about
590
00:24:45.372 --> 00:24:46.205
conditional gifts.
Engagement rings
591
00:24:46.205 --> 00:24:47.038
in particular?
The modern rule
592
00:24:47.038 --> 00:24:50.374
for dealing with engagement rings out there,
593
00:24:50.374 --> 00:24:51.490
is it what?
594
00:24:51.490 --> 00:24:52.844
And how do they...
595
00:24:52.844 --> 00:24:53.677
So the-
596
00:24:53.677 --> 00:24:55.077
The no-fault modern rule,
597
00:24:55.077 --> 00:24:55.976
how does it work?
598
00:24:55.976 --> 00:24:58.237
The models out there are that there is no fault.
599
00:24:58.237 --> 00:24:59.431
Right.
That if there's a ring given
600
00:24:59.431 --> 00:25:00.850
and a couple breaks up.
601
00:25:00.850 --> 00:25:01.683
Right?
602
00:25:01.683 --> 00:25:03.965
Either the ring goes back and some court...
603
00:25:03.965 --> 00:25:07.772
And some states might say unless there's outright fraud,
604
00:25:07.772 --> 00:25:08.929
ring goes back.
605
00:25:08.929 --> 00:25:12.755
Or in Montana, in the Albinger case, a gift is a gift.
606
00:25:12.755 --> 00:25:14.429
The ring stays
607
00:25:14.429 --> 00:25:18.225
So what is the majority rule does what with the ring?
608
00:25:18.225 --> 00:25:19.661
If we move to a no-fault system.
609
00:25:19.661 --> 00:25:20.813
[Justice Wendlandt] It goes back to the donor.
610
00:25:20.813 --> 00:25:23.402
More states say the ring goes back.
611
00:25:23.402 --> 00:25:24.447
And why do they do that?
612
00:25:24.447 --> 00:25:26.935
Because they maintain this concept
613
00:25:26.935 --> 00:25:28.430
of the conditional gift.
614
00:25:28.430 --> 00:25:29.452
Okay.
And if I can address
615
00:25:29.452 --> 00:25:30.420
that point,
616
00:25:30.420 --> 00:25:31.333
and this is important,
617
00:25:31.333 --> 00:25:35.916
one of the ways that the plaintiff tries to distinguish
618
00:25:37.062 --> 00:25:39.757
what Montana did in Albinger's to say,
619
00:25:39.757 --> 00:25:43.529
"Well, Montana doesn't recognize a conditional gift."
620
00:25:43.529 --> 00:25:45.775
Conditional gifts are normal in Massachusetts
621
00:25:45.775 --> 00:25:47.347
and they cite the Mafi case.
622
00:25:47.347 --> 00:25:49.187
That's simply not true.
623
00:25:49.187 --> 00:25:50.885
A conditional gift is a legal fiction
624
00:25:50.885 --> 00:25:53.180
created to get around with the Tybald decision
625
00:25:53.180 --> 00:25:56.078
and allow the man in De Cicco to get the ring back.
626
00:25:56.078 --> 00:25:58.090
We don't have conditional gifts in Massachusetts.
627
00:25:58.090 --> 00:26:01.924
The Mafi case was a charitable donation to a church.
628
00:26:01.924 --> 00:26:03.010
And the analysis there
629
00:26:03.010 --> 00:26:05.943
was whether or not that was held in trust
630
00:26:05.943 --> 00:26:09.253
or a constructive trust to be used for church purposes.
631
00:26:09.253 --> 00:26:13.132
The mention of a conditional gift in the Mafi case,
632
00:26:13.132 --> 00:26:14.198
the court actually put in quotes
633
00:26:14.198 --> 00:26:17.849
because it didn't acknowledge that it's actually a thing.
634
00:26:17.849 --> 00:26:20.982
So the notion that, well we have conditional gifts.
635
00:26:20.982 --> 00:26:21.815
So, I'm trying to...
And we are able
636
00:26:21.815 --> 00:26:23.476
to imply conditions so this is...
637
00:26:23.476 --> 00:26:24.309
Sorry.
I'm trying to understand
638
00:26:24.309 --> 00:26:25.142
what your are...
639
00:26:25.142 --> 00:26:29.339
'Cause you're representing the person who got the ring,
640
00:26:29.339 --> 00:26:31.913
and you obviously don't want it returned.
641
00:26:31.913 --> 00:26:34.371
But you're also in favor of the modern rule.
642
00:26:34.371 --> 00:26:38.862
How do we rule in your favor if we move to the modern rule?
643
00:26:38.862 --> 00:26:41.000
And let me add one last question to that
644
00:26:41.000 --> 00:26:44.486
'cause I'm not sure I understand the retroactivity point.
645
00:26:44.486 --> 00:26:47.054
I understand when we change and interpret.
646
00:26:47.054 --> 00:26:50.633
I just don't know how that works in a common law case
647
00:26:50.633 --> 00:26:52.003
like this, so...
648
00:26:52.003 --> 00:26:54.086
So I think...
649
00:26:54.086 --> 00:26:55.461
A few things.
650
00:26:55.461 --> 00:26:59.636
First, I think that if it's not retroactive.
651
00:26:59.636 --> 00:27:01.829
Mm-hmm.
Then obviously,
652
00:27:01.829 --> 00:27:04.793
we feel that the findings of the trial judge
653
00:27:04.793 --> 00:27:06.039
are well-developed.
654
00:27:06.039 --> 00:27:09.847
Four days of trial, seven witnesses, a few dozen exhibits.
655
00:27:09.847 --> 00:27:10.680
And I think it was addressed...
656
00:27:10.680 --> 00:27:11.724
I didn't address it when I came out
657
00:27:11.724 --> 00:27:12.840
'cause I think it was addressed earlier
658
00:27:12.840 --> 00:27:15.298
that this court is (indistinct) to upset
659
00:27:15.298 --> 00:27:17.959
the findings of the trial judge.
660
00:27:17.959 --> 00:27:19.168
There are a few ways this could go.
661
00:27:19.168 --> 00:27:20.981
I agree Justice Georges,
662
00:27:20.981 --> 00:27:22.072
I think, my sister,
663
00:27:22.072 --> 00:27:25.833
that a change in the fundamental rule from a fault-base
664
00:27:25.833 --> 00:27:29.679
to a no-fault is a new rule that should not be retroactive.
665
00:27:29.679 --> 00:27:32.362
There is one way in which I could foresee this
666
00:27:32.362 --> 00:27:33.195
being retroactive,
667
00:27:33.195 --> 00:27:36.446
which is an interpretation of a statute
668
00:27:36.446 --> 00:27:37.907
that was always the way the statute
669
00:27:37.907 --> 00:27:39.162
should have been interpreted,
670
00:27:39.162 --> 00:27:41.020
sometimes may be retroactive.
671
00:27:41.020 --> 00:27:41.902
And here you might look at the-
672
00:27:41.902 --> 00:27:45.030
Actually in the statutes, we say the exact opposite,
673
00:27:45.030 --> 00:27:46.520
which is it's not...
674
00:27:46.520 --> 00:27:48.079
It is.
675
00:27:48.079 --> 00:27:50.918
It's says if we always interpreted the statute that way.
676
00:27:50.918 --> 00:27:55.592
So with a statute, it's the opposite rule applies.
677
00:27:55.592 --> 00:27:58.245
It applies to the parties in the case.
678
00:27:58.245 --> 00:27:59.603
Right.
679
00:27:59.603 --> 00:28:00.436
And what I'm saying is,
680
00:28:00.436 --> 00:28:02.869
is if you looked at the Heart-Balm Act and said,
681
00:28:02.869 --> 00:28:06.608
"It never carved out conditional gifts or rings."
682
00:28:06.608 --> 00:28:09.370
The Heart-Balm Act was a Heart-Balm Act from the day it was,
683
00:28:09.370 --> 00:28:10.445
you know, enacted.
684
00:28:10.445 --> 00:28:13.500
That said, "You cannot bring a case to..."
685
00:28:13.500 --> 00:28:15.636
That's what De Cicco...
"To judge right or wrong"
686
00:28:15.636 --> 00:28:20.252
for, you know, "for breaching a promise to marry."
687
00:28:20.252 --> 00:28:21.679
So I think, so...
688
00:28:21.679 --> 00:28:26.669
De Cicco carve the ring out of that statute, right?
689
00:28:26.669 --> 00:28:28.600
Right. And if this court said,
690
00:28:28.600 --> 00:28:30.238
"Nevermind, I never carved that out.
691
00:28:30.238 --> 00:28:31.750
I never should have carved it out."
692
00:28:31.750 --> 00:28:32.583
Maybe that's retroactive.
693
00:28:32.583 --> 00:28:35.529
But I think if you change the law from a fault base
694
00:28:35.529 --> 00:28:36.362
to a no fault,
695
00:28:36.362 --> 00:28:38.779
that is a significant change.
696
00:28:40.860 --> 00:28:44.085
But I do wanna go to the other reason why...
697
00:28:44.085 --> 00:28:44.918
If I have answered
698
00:28:44.918 --> 00:28:45.751
your question.
No, no. Yeah.
699
00:28:45.751 --> 00:28:46.584
Thank you.
700
00:28:46.584 --> 00:28:47.417
The other reason
701
00:28:47.417 --> 00:28:49.284
why the conditional gift rule is problematic
702
00:28:49.284 --> 00:28:52.285
is, of course, because of the Heart-Balm Act.
703
00:28:52.285 --> 00:28:55.288
And chapter 207, section 47A.
704
00:28:55.288 --> 00:28:59.476
And Johnson, the cases cited in their brief,
705
00:28:59.476 --> 00:29:01.851
stand for the proposition that the societal norms
706
00:29:01.851 --> 00:29:05.652
hold that the engagement ring is symbolic of this pledge.
707
00:29:05.652 --> 00:29:07.203
This promise to marry.
708
00:29:07.203 --> 00:29:09.446
Then implies that condition into it,
709
00:29:09.446 --> 00:29:11.260
even though it's not expressed by the parties.
710
00:29:11.260 --> 00:29:14.985
And if that condition is breached, the ring then goes back.
711
00:29:14.985 --> 00:29:15.969
But the elephant in the room
712
00:29:15.969 --> 00:29:19.500
is what's this condition that's being read into it?
713
00:29:19.500 --> 00:29:22.401
And it's that someone is going to marry you.
714
00:29:22.401 --> 00:29:24.804
And the statute of Massachusetts,
715
00:29:24.804 --> 00:29:27.851
section 47A of chapter 207 says,
716
00:29:27.851 --> 00:29:29.968
"A breach of a contract to marry
717
00:29:29.968 --> 00:29:34.968
shall not constitute an injury or wrong recognized by law,
718
00:29:34.999 --> 00:29:37.007
and no action, suit or proceedings
719
00:29:37.007 --> 00:29:39.153
shall be maintained therefore."
720
00:29:39.153 --> 00:29:40.268
It means that there is no wrong
721
00:29:40.268 --> 00:29:42.538
in deciding not to get married.
722
00:29:42.538 --> 00:29:45.061
I'm still struggling with why we're talking about this
723
00:29:45.061 --> 00:29:47.690
because De Cicco said we're gonna carve out
724
00:29:47.690 --> 00:29:49.144
the engagement ring about it.
725
00:29:49.144 --> 00:29:51.563
So we have to talk about the conditional gift
726
00:29:51.563 --> 00:29:54.747
even in light of the Heart-Balm statute don't we?
727
00:29:54.747 --> 00:29:58.197
I think we have to recognize that at the starting point,
728
00:29:58.197 --> 00:30:00.139
an inter vivos gift is a gift.
729
00:30:00.139 --> 00:30:01.380
It is complete on transfer.
730
00:30:01.380 --> 00:30:03.170
If you have the intent and you transfer it
731
00:30:03.170 --> 00:30:05.503
and it's accepted that that is a gift.
732
00:30:05.503 --> 00:30:08.621
There is no such thing other than De Cicco's creation
733
00:30:08.621 --> 00:30:11.282
of this ring in limbo that, you know,
734
00:30:11.282 --> 00:30:14.557
the one with the diamond ring it's an option.
735
00:30:14.557 --> 00:30:16.073
So are you...
On the marriage it say...
736
00:30:16.073 --> 00:30:18.341
Are you contending that a person
737
00:30:18.341 --> 00:30:20.469
literally cannot achieve a conditional gift?
738
00:30:20.469 --> 00:30:23.886
Like I'm gonna say to my child, you know,
739
00:30:24.887 --> 00:30:28.453
"I'm gonna give you $20 to spend at the candy store
740
00:30:28.453 --> 00:30:29.286
this evening.
741
00:30:29.286 --> 00:30:31.527
I'm giving it to you right now at 9:00 AM,
742
00:30:31.527 --> 00:30:34.286
and I want to make this really real to you.
743
00:30:34.286 --> 00:30:36.013
You are going to be really obedient
744
00:30:36.013 --> 00:30:38.967
for the next nine hours while we do a painful task.
745
00:30:38.967 --> 00:30:41.827
And then you'll go to the candy store."
746
00:30:41.827 --> 00:30:44.240
And then she's not obedient.
747
00:30:44.240 --> 00:30:45.979
I take away the $20.
748
00:30:45.979 --> 00:30:47.914
I'm choosing a really simplistic analysis,
749
00:30:47.914 --> 00:30:49.364
but like, isn't it possible
750
00:30:49.364 --> 00:30:52.454
to achieve a conditional gift in reality?
751
00:30:52.454 --> 00:30:54.307
To be completely honest, I thought the same thing
752
00:30:54.307 --> 00:30:55.505
as I got into this case.
753
00:30:55.505 --> 00:30:56.338
I thought this...
754
00:30:56.338 --> 00:30:57.629
We talk about it all the time.
755
00:30:57.629 --> 00:30:58.553
But not...
Charitable gifts...
756
00:30:58.553 --> 00:30:59.695
But not for marriage.
757
00:30:59.695 --> 00:31:00.528
Right.
758
00:31:00.528 --> 00:31:02.672
Not for anything. That's a remedy.
759
00:31:02.672 --> 00:31:03.505
You as a parent have the right
760
00:31:03.505 --> 00:31:05.787
to take something away from your child,
761
00:31:05.787 --> 00:31:07.020
the money.
762
00:31:07.020 --> 00:31:09.920
But it's a gift when you talk about charitable gifts
763
00:31:09.920 --> 00:31:11.319
and you give to a museum and you say,
764
00:31:11.319 --> 00:31:13.759
"Well use it to buy art and I want it back."
765
00:31:13.759 --> 00:31:16.230
Those are trust. You can establish a trust.
766
00:31:16.230 --> 00:31:20.537
A gift is you're transferring title of property, ownership.
767
00:31:20.537 --> 00:31:24.487
And the ring is either yours or it's mine.
768
00:31:24.487 --> 00:31:26.244
There is no such thing as this,
769
00:31:26.244 --> 00:31:27.411
it's yours for now,
770
00:31:27.411 --> 00:31:30.001
but then I'm gonna bring an action to take it back.
771
00:31:30.001 --> 00:31:33.217
One, because in terms of a strict property in gift law,
772
00:31:33.217 --> 00:31:35.142
there's no such thing in Massachusetts.
773
00:31:35.142 --> 00:31:37.431
And two, because under the statute you can't...
774
00:31:37.431 --> 00:31:39.887
We can't sue to get it back.
And also.
775
00:31:39.887 --> 00:31:43.529
We've said that marriage, like we don't enforce, you know,
776
00:31:43.529 --> 00:31:45.825
marriage broker contracts.
777
00:31:45.825 --> 00:31:48.575
We don't impose fault in divorce.
778
00:31:49.701 --> 00:31:53.854
We've said we don't wanna encourage bad engagements.
779
00:31:53.854 --> 00:31:55.255
We don't...
780
00:31:55.255 --> 00:31:56.498
Or bad marriages.
781
00:31:56.498 --> 00:31:58.898
We wanna stay out of that business, right?
782
00:31:58.898 --> 00:32:01.421
So conditional gifts can be fine,
783
00:32:01.421 --> 00:32:04.624
but not conditioned on marriage, right?
784
00:32:04.624 --> 00:32:05.945
That's the real...
785
00:32:05.945 --> 00:32:09.278
That was probably the error in De Cicco.
786
00:32:10.131 --> 00:32:11.142
Yeah, there may be other areas
787
00:32:11.142 --> 00:32:12.398
where if the legislators thought
788
00:32:12.398 --> 00:32:13.526
that we should have conditional gifts
789
00:32:13.526 --> 00:32:15.186
or, you know, trust law develops.
790
00:32:15.186 --> 00:32:17.684
Perhaps my point is just that the argument that,
791
00:32:17.684 --> 00:32:19.098
"Oh, it's just another conditional gift
792
00:32:19.098 --> 00:32:19.931
and we have those a lot."
793
00:32:19.931 --> 00:32:21.443
Is just simply not the case and that the issue is-
794
00:32:21.443 --> 00:32:22.301
[Justice Wendlandt] In fact the default
795
00:32:22.301 --> 00:32:23.727
is inter vivos gifts.
796
00:32:23.727 --> 00:32:24.560
I'm sorry, what's that?
797
00:32:24.560 --> 00:32:25.776
The default is inter vivos gifts.
798
00:32:25.776 --> 00:32:29.026
Yeah, the default is that if you say,
799
00:32:30.151 --> 00:32:31.042
"This is of value and I want to give it to you
800
00:32:31.042 --> 00:32:32.728
because I think we'll be together forever.
801
00:32:32.728 --> 00:32:35.300
If you're wrong, you're wrong." That's a different problem.
802
00:32:35.300 --> 00:32:36.983
It's, "I give it to you."
803
00:32:36.983 --> 00:32:40.071
And when you take it, you've now taken a gift.
804
00:32:40.071 --> 00:32:45.071
And to attach some revocability is not supported in law.
805
00:32:45.260 --> 00:32:46.233
So can person...
That was a response
806
00:32:46.233 --> 00:32:48.451
in De Cicco and other states
807
00:32:48.451 --> 00:32:50.547
that had cases like De Cicco saying,
808
00:32:50.547 --> 00:32:53.103
"We've passed these Heart-Balm statutes
809
00:32:53.103 --> 00:32:55.087
so women can't go around suing these men for their,"
810
00:32:55.087 --> 00:32:56.634
you know, "lost affection, whatever."
811
00:32:56.634 --> 00:32:58.324
But now the guys can't get the rings back.
812
00:32:58.324 --> 00:33:00.860
Can the guy get the ring back if he says,
813
00:33:00.860 --> 00:33:03.422
"Here, I want you to wear this."
814
00:33:03.422 --> 00:33:04.255
That's...
815
00:33:04.255 --> 00:33:06.843
"I want you to wear this in anticipation of our marriage."
816
00:33:06.843 --> 00:33:08.673
Right. I think that that is more like a trust.
817
00:33:08.673 --> 00:33:11.022
If you wanna hold this in trust for me, right?
818
00:33:11.022 --> 00:33:13.294
And this sort of goes back to the wedding band
819
00:33:13.294 --> 00:33:15.196
with his initials on it, right?
820
00:33:15.196 --> 00:33:16.913
It was understood you're gonna hold this
821
00:33:16.913 --> 00:33:18.963
and then at the wedding you're gonna give it back to me.
822
00:33:18.963 --> 00:33:21.284
So hold this in trust for me.
823
00:33:21.284 --> 00:33:23.086
A ring is...
824
00:33:23.086 --> 00:33:25.181
I think in our society, and I think in the case,
825
00:33:25.181 --> 00:33:26.854
is I'm giving you the gift.
826
00:33:26.854 --> 00:33:29.072
Otherwise, I mean, to say it's a conditional gift to me
827
00:33:29.072 --> 00:33:30.690
actually sort of cheapens it, right?
828
00:33:30.690 --> 00:33:33.362
I'm giving you this, but I'm not really giving it to you.
829
00:33:33.362 --> 00:33:34.410
It hasn't been transferred,
830
00:33:34.410 --> 00:33:35.937
the value hasn't been transferred.
831
00:33:35.937 --> 00:33:36.823
But is that...
832
00:33:36.823 --> 00:33:39.687
I mean, I get it, but is that the rule?
833
00:33:39.687 --> 00:33:40.743
Is that the...
834
00:33:40.743 --> 00:33:42.536
The majority rule seems to be the opposite.
835
00:33:42.536 --> 00:33:44.614
It's not treated as an inter vivos gift.
836
00:33:44.614 --> 00:33:45.657
Correct.
837
00:33:45.657 --> 00:33:47.437
More states than...
It's treated more as a-
838
00:33:47.437 --> 00:33:52.437
More states than not have kept the conditional gift rule.
839
00:33:52.584 --> 00:33:54.487
Albinger, Montana, the court...
840
00:33:54.487 --> 00:33:57.697
And I recognize it's described as being an outlier.
841
00:33:57.697 --> 00:33:59.021
It is the only state that has done it.
842
00:33:59.021 --> 00:34:01.366
But it's not just dicta.
843
00:34:01.366 --> 00:34:03.605
They go through all the history of the Heart-Balm acts,
844
00:34:03.605 --> 00:34:05.510
all the history of conditional gift law.
845
00:34:05.510 --> 00:34:07.530
It is like Massachusetts and not distinguishable
846
00:34:07.530 --> 00:34:09.150
because Montana, like Massachusetts,
847
00:34:09.150 --> 00:34:10.299
doesn't have conditional gift.
848
00:34:10.299 --> 00:34:12.982
It was invented for this purpose.
849
00:34:12.982 --> 00:34:15.008
And it's incredibly well-reasoned.
850
00:34:15.008 --> 00:34:16.157
And there are other cases that have been-
851
00:34:16.157 --> 00:34:18.296
But I'm still struggling with what does that mean
852
00:34:18.296 --> 00:34:20.160
for this case?
853
00:34:20.160 --> 00:34:21.650
What does that mean for this case?
854
00:34:21.650 --> 00:34:24.067
This case is De Cicco, right?
855
00:34:25.075 --> 00:34:27.960
I think De Cicco needs to be either,
856
00:34:27.960 --> 00:34:30.914
if it's held then I think that Judge Glenny got it
857
00:34:30.914 --> 00:34:34.377
right on the facts and found he was not without fault.
858
00:34:34.377 --> 00:34:36.895
And if the court says De Cicco is antiquated
859
00:34:36.895 --> 00:34:38.392
and we need a new rule,
860
00:34:38.392 --> 00:34:39.995
the new rule should be the standard,
861
00:34:39.995 --> 00:34:42.592
which is a gift is a gift.
862
00:34:42.592 --> 00:34:45.130
And again, to the point in Albinger,
863
00:34:45.130 --> 00:34:47.361
the Cooper case in Ohio,
864
00:34:47.361 --> 00:34:48.968
didn't ultimately go that way.
865
00:34:48.968 --> 00:34:50.185
But in the decision
866
00:34:50.185 --> 00:34:52.042
they agree that it's a very sensible way to go.
867
00:34:52.042 --> 00:34:53.283
If I could, before I lose you,
868
00:34:53.283 --> 00:34:56.404
just because I wanted an answer to this because of De Cicco.
869
00:34:56.404 --> 00:34:58.372
So the justification analysis,
870
00:34:58.372 --> 00:35:00.222
one of the things that De Cicco talks about,
871
00:35:00.222 --> 00:35:01.670
if it is the law,
872
00:35:01.670 --> 00:35:02.637
that when they were...
873
00:35:02.637 --> 00:35:05.501
When Mr. Johnson gave this ring to Ms. Settino,
874
00:35:05.501 --> 00:35:06.954
De Cicco was the state of the law.
875
00:35:06.954 --> 00:35:10.354
So please indulge me that that's what we're talking about.
876
00:35:10.354 --> 00:35:12.327
So now we're talking about whether or not
877
00:35:12.327 --> 00:35:15.630
there was clearly erroneous on the fault analysis.
878
00:35:15.630 --> 00:35:18.801
De Cicco talks about how at root,
879
00:35:18.801 --> 00:35:21.385
this is an unjust enrichment case.
880
00:35:21.385 --> 00:35:23.447
And they say that specifically,
881
00:35:23.447 --> 00:35:25.543
it's about unjust enrichment.
882
00:35:25.543 --> 00:35:28.443
So if we're talking about unjust enrichment,
883
00:35:28.443 --> 00:35:30.634
how is it that we can do that
884
00:35:30.634 --> 00:35:34.629
without actually doing a justification analysis
885
00:35:34.629 --> 00:35:35.608
to see whether or not
886
00:35:35.608 --> 00:35:38.292
the person is going to be unjustly enriched
887
00:35:38.292 --> 00:35:41.942
because their behavior leading to whatever it was
888
00:35:41.942 --> 00:35:44.802
that caused you to finally pull the lever
889
00:35:44.802 --> 00:35:48.561
is part and parcel to the fault analysis.
890
00:35:48.561 --> 00:35:52.728
And in that respect, isn't there some measure here
891
00:35:54.385 --> 00:35:59.385
that the trial judge just didn't really evaluate all of that
892
00:35:59.409 --> 00:36:01.592
and just really distilled it all too.
893
00:36:01.592 --> 00:36:03.954
You saw these text messages, you were wrong.
894
00:36:03.954 --> 00:36:06.620
You you pulled the trigger because you were wrong
895
00:36:06.620 --> 00:36:09.192
factually about whether she was having an affair.
896
00:36:09.192 --> 00:36:10.442
So you'll lose.
897
00:36:11.793 --> 00:36:12.967
Back to the discussion we had earlier,
898
00:36:12.967 --> 00:36:15.535
I think isn't that essentially doing
899
00:36:15.535 --> 00:36:17.537
the equity justification,
900
00:36:17.537 --> 00:36:18.743
unjust enrichment discussion.
901
00:36:18.743 --> 00:36:19.934
I don't know that it is
902
00:36:19.934 --> 00:36:21.139
because it seems like he...
903
00:36:21.139 --> 00:36:23.578
Like I said, it boils down
904
00:36:23.578 --> 00:36:26.710
to this is axiomatically why you'll lose
905
00:36:26.710 --> 00:36:28.147
because you were wrong
906
00:36:28.147 --> 00:36:30.418
and therefore you're at fault for calling it off
907
00:36:30.418 --> 00:36:31.484
because you are wrong.
908
00:36:31.484 --> 00:36:34.596
And he found neither party
909
00:36:34.596 --> 00:36:36.853
otherwise was thinking to call it off.
910
00:36:36.853 --> 00:36:38.674
That Settino wanted to stay in this.
911
00:36:38.674 --> 00:36:40.069
So I think he implicit in that
912
00:36:40.069 --> 00:36:41.775
is she's not unjustly enriched
913
00:36:41.775 --> 00:36:42.950
because she was willing to stay,
914
00:36:42.950 --> 00:36:44.721
she was willing to stick around.
915
00:36:44.721 --> 00:36:46.401
And he actually otherwise was okay
916
00:36:46.401 --> 00:36:48.144
even with the fights they had.
917
00:36:48.144 --> 00:36:49.854
But for this misconception.
918
00:36:49.854 --> 00:36:51.170
So in terms of the unjust enrichment,
919
00:36:51.170 --> 00:36:52.288
she's not unjustly enriched
920
00:36:52.288 --> 00:36:53.121
'cause she would've stayed,
921
00:36:53.121 --> 00:36:56.471
she would've stuck it out had he just, you know...
922
00:36:56.471 --> 00:36:59.840
Stuck it out. Sounds like a romantic man, right? (laughs)
923
00:36:59.840 --> 00:37:00.923
Stuck it out.
924
00:37:02.151 --> 00:37:03.530
So you had started...
925
00:37:03.530 --> 00:37:05.726
15 years, I'm thinking about it. (laughs)
926
00:37:05.726 --> 00:37:07.122
You had started oral argument
927
00:37:07.122 --> 00:37:08.875
by saying that there are three reasons.
928
00:37:08.875 --> 00:37:10.125
I got down two.
929
00:37:11.035 --> 00:37:14.927
The reading a condition where it doesn't exist,
930
00:37:14.927 --> 00:37:17.410
the Heart-Balm Act itself, and...
931
00:37:17.410 --> 00:37:18.735
And we...
932
00:37:18.735 --> 00:37:20.346
Thank you for keeping me organized.
933
00:37:20.346 --> 00:37:23.390
The other one is this notion of the conditional gift, right?
934
00:37:23.390 --> 00:37:24.914
There's the implication,
935
00:37:24.914 --> 00:37:27.440
reading the implication into the gift.
936
00:37:27.440 --> 00:37:28.402
There's the Heart-Balm Act,
937
00:37:28.402 --> 00:37:31.702
but there's also, I think we did cover in bits and pieces,
938
00:37:31.702 --> 00:37:33.787
this fabrication of the conditional gift idea.
939
00:37:33.787 --> 00:37:34.941
That it's just something that's...
940
00:37:34.941 --> 00:37:36.490
Oh, the default-
That De Cicco invented.
941
00:37:36.490 --> 00:37:37.934
Is inter vivos.
942
00:37:37.934 --> 00:37:39.641
Right. That the gift is-
And carved out
943
00:37:39.641 --> 00:37:41.456
the ink for engagement rings.
944
00:37:41.456 --> 00:37:44.694
This conditional gift idea that previously did not exist.
945
00:37:44.694 --> 00:37:45.579
Right. And then for...
Okay.
946
00:37:45.579 --> 00:37:48.141
And for true reason, one is that it does...
947
00:37:48.141 --> 00:37:50.119
It was created stemming from this, you know,
948
00:37:50.119 --> 00:37:54.769
highly gendered expectation to get around Tybald
949
00:37:54.769 --> 00:37:55.944
and the Heart-Balm Act.
950
00:37:55.944 --> 00:37:57.366
But also just because it's inconsistent
951
00:37:57.366 --> 00:37:59.891
with Massachusetts gift law.
952
00:37:59.891 --> 00:38:00.724
It just doesn't...
953
00:38:00.724 --> 00:38:02.390
There's just doesn't... It was created at a whole cloth.
954
00:38:02.390 --> 00:38:03.223
[Justice Wendlandt] Okay.