-: SJC 13555.
Bruce Johnson versus Caroline Settino.
(door thuds)
Okay. Attorney Siden, whenever you're ready.
-: Good morning, Your Honors. May it please the Court.
My name is Stephanie Taverna Siden,
and I represent the appellant, Bruce Johnson.
I'm here today to ask the court to do two things.
First, reverse the trial court's opinion or the decision,
and find that Mr. Johnson was not at fault
for terminating the engagement,
and award the engagement ring and wedding band
back to Mr. Johnson.
The second thing I'm here to ask the court to do
is if the court is inclined to change the law
with respect to engagement rings in this state,
then it should move Massachusetts
to a no-fault conditional gift jurisdiction.
We should move to a no-fault jurisdiction
because moving to a no-fault state
aligns with the Massachusetts divorce law,
which was enacted in 1975,
and where the public policy under that legislation
was to take fault finding outside of the parties away
so that parties could decouple without acrimony.
The same reasons apply here.
-: Do you know the breakdown on the no fault versus fault?
Did you do a 50 state survey?
Do you have a sense of...
With the numbers, how it breaks down.
How many states have moved
to no fault? -: Yes, Your Honor.
The majority view in the United States
is no-fault conditional gift rule.
There is one state in the country, Montana,
which follows the opposite view,
which is a no-fault, absolute gift rule
or inter vivos gift rule.
So the modern view in the majority of states
follow the no-fault conditional gift rule.
And there are a few states like Rhode Island
that haven't touched on the issue yet.
I think there were about three.
-: So were...
I mean, our decision's written in 1959, so...
Stephanie: Correct.
-: 65 years old at this point.
So we're in a distinct minority at this point.
Stephanie: Exactly.
-: Counsel, could we go back to where you started?
I think you mentioned two rings.
Is it the wedding band that you're also...
That was intended for Ms. Settino,
that you're also looking to have returned?
Stephanie: Yes, Your Honor.
-: Okay. -: And our position with that
is that the engagement ring
was not a complete gift under De Cicco
because it was a conditional gift that only...
The gift only completed upon the marriage happening.
The wedding band didn't even get
to that point of a conditional gift.
Judge Georges: Okay.
-: Because it's intended to be given
at the time of the wedding.
-: Let's go back to Dec Chico for a second.
I think if you read the appeals court dissent,
I think one of the concerns that I have here
is we've never really animated what the metric ought to be
for fault.
And your position is that there should be a justification
kind of analysis where you look at the...
Not just who actually pulled the lever, but factoring why.
And in your case you're saying, you know,
that Mr. Johnson had... There was a bunch of things
that the trial judge did not essentially fully credit
in making that determination.
-: Yes, Your Honor.
So our position
is that the trial court committed an error of law
by failing to hold Mr. Johnson
to the standard of proving fault.
What the trial court held Mr. Johnson to
was proving that Ms. Settino actually had a sexual affair.
Mr. Johnson-
-: Well that's your gloss on it.
But the trial judge does talk about
the fact that he credits Mr. Johnson
in what he claims was the way he was treated
prior to misconstruing,
'cause that was a factual finding,
the text messages.
So there's...
I'm trying to figure out how do we get to clear error
where the trial judge is also sitting as the fact finder
and has made factual determinations that...
Yeah, I give you that you didn't like
that perhaps she said things to you that you didn't like
or that she called you a moron
or that she wasn't there for you
when you were going through your cancer treatments.
But you still call this off
because you were wrong about the text messages.
So he does take the full universe
of what Mr. Johnson testifies to
in assessing the fault analysis.
-: And that's why we argue
that the court needs to imply a justification analysis
in fault finding.
Because without a justification analysis,
as the trial judge wrote,
he found that Mr. Johnson must bear the fault.
But if you look at the facts
from an objectively reasonable perspective,
Mr. Johnson did nothing wrong.
There's no action on his part
that could be objectively identified as false.
-: Well isn't the inquiry then whether or not the trial judge
was clearly erroneous?
Stephanie: Exactly.
-: So why do we have to get into justification? Is it...
-: Well, I...
'Cause I think that the error...
The evidence itself, the judge was clearly erroneous.
But without the guidance to do a justification analysis,
you're becoming...
It's almost like you're imposing a strict liability.
The party that terminates
the engagement is at fault. -: It's an uphill battle
for you on this issue
because of the factual finding in the deference.
Stephanie: I'm sorry, Your Honor.
-: It's an uphill battle because of the deference
we have to give to the trial judge.
Not one that the appeals court had a problem with, but...
-: So my argument in that perspective, Your Honor,
is that the deference has to be given for factual findings.
And so if you accept the court's finding
which we disagree with,
that the client...
That Mr. Johnson made his decision
to terminate the engagement
solely or predominantly on the text message
and his mistaken belief
that appellee was having a sexual affair.
Even if you accept that is true,
when you get to the application of those facts to the law,
I would submit that fault finding is either a legal question
because you're applying facts to the lower law
or a mixed question of fact finding
and application of the law.
And when you get to that point of taking that conclusion
and applying it to the law,
it's clearly erroneous
because no objectively reasonable person could say,
"This man was at fault for deciding not to marry a woman
we did trust." -: I mean, we all...
We seem to look silly trying to do this
either under your justification or your fault analysis.
'Cause it's so indeterminate who's at fault
for not going forward with marriage, right?
I mean, just don't...
I just feel like you'll lose unless we move to a no-fault,
because I mean, a trial judge has found this
and you know, it's so open-ended
that you can almost focus on anything.
-: I agree, Your honor.
And there's several cases that discuss that.
Campbell versus Robinson, South Carolina,
Heiman v. Parrish in Kansas,
they discussed the trouble with fault finding
and how amorphous it can be.
And that's why the majority of states in this country
have moved to a no-fault.
-: But can I ask, if we move to a no-fault,
does that mean the person who gives the ring
always gets it back?
I'm just...
You know, it's...
Again, we're...
We don't do fault finding in divorces anymore.
That statute that De Cicco interpreted
also said we're not gonna get into who's to blame for...
In other context besides the ring.
We're not gonna have you able to sue over this.
But I'm just trying to figure out the consequence.
Who gets to keep the ring if we move to a no-fault?
'Cause it's...
The ring has been transferred in some respect.
-: Our position is that if we move
to a no-fault jurisdiction,
the law of De Cicco, which says that it is a...
The engagement ring is a conditional gift,
should remain as a conditional gift.
So that if the marriage does not happen,
the purchaser of the ring gets the ring back.
-: [Justice Wendlandt] Why?
-: It's most equitable, Your honor.
-: Why?
-: Because the person that has spent money
or value on the ring is doing so
under the condition that I'm proposing to you,
I'm expecting, you know, we are going to get married
and we're gonna live a life together.
If you change the gift to an inter vivos gift,
that person that gave the ring
loses the value of the ring if the marriage doesn't happen,
and it becomes...
-: [Justice Wendlandt] But if it was a tennis bracelet?
Justice Kafker: Yeah.
Or a car.
-: [Justice Wendlandt] Yes.
-: I agree. I think all of those-
-: Why is it the ring?
-: Well, the ring has special value in our society,
traditionally...
-: But no one wants to keep the ring,
and the ring is no longer a symbol of love.
It's a symbol of...
You know, that the thing broke down-
-: Unless it's worth $70,000.
-: Exactly. And that's what Cooper V. Smith said,
the ring-
-: Then it's cash.
It's not that the ring has any value,
it's that the ring is worth a certain amount of money.
-: And why should the person who was gifted that...
Conditionally gifted that ring
receive the value of the ring
if the condition upon which the person received the ring
doesn't happen?
-: Can I ask a question about exactly what you're saying
vis-a-vis the factual findings here?
Stephanie: Sure.
-: So what the trial judge found
was that the ring was given and the ring was received.
And I think I'm quoting the judge here,
"In anticipation of marriage."
What do you understand that factual finding to be?
And specifically,
do you understand the words in anticipation of marriage
to be a factual finding
that it was conditioned on the wedding going forward or not?
-: Yes, Your honor.
Under De Cicco, the findings that the ring was given
and accepted in anticipation of marriage
can cause it to become a conditional gift.
-: So I understand how it makes De Cicco apply,
but my question is, if we have a question
for whatever reason,
however this all comes out,
that, you know, we want to actually know
whether Mr. Johnson gave this ring
and in his mind, and ideally also in her mind,
they had a meeting of the minds that this was conditioned
on the wedding going forward.
Do we even have a factual finding right now
on whether anyone thought that there was a condition?
-: Yes. So at trial, Ms. Settino argued
that it was an inter vivos gift.
She presented evidence of receipts
that she had received for the engagement ring
in addition to several other gifts
that Mr. Johnson had generously given Ms. Settino.
And the court found that the engagement ring
was not an inter vivos gift.
The court found that it was a conditional gift
or given in anticipation of marriage.
And by the court's analysis
you can infer that the language anticipation of marriage
that he found that both parties
gave and accepted the ring in anticipation of marriage,
and his failure to find in appellee's view
that it was an inter vivos gift.
And then him getting to the application of De Cicco
and saying it was a conditional gift
and he states the law.
our position is that the court found
that it was a conditional gift.
-: I understand that that was...
That's your legal conclusion.
But I wanna get an answer on the factual question.
Do you think that the judge made a factual finding
that Mr. Johnson gave the ring
on condition that they actually get married?
-: Yes, it was implied.
Mr. Johnson gave the ring
at the time De Cicco was a law of the land.
There's no evidence in the record that his donative intent
was other than giving a conditional gift,
that he proposed to her and he said...
He didn't explicitly say,
"I'm giving you this ring
on the condition that we'll be married."
But, you know, case law addresses that issue
that at the point in time
somebody is proposing to another person,
they're so blissfully in their relationship,
they're not thinking about, you know,
this may end badly.
And they don't expressly state
"This is the condition on which I'm giving you this gift."
And that's why
De Cicco implied it. -: That apply
to the dental work too?
'Cause that's also done anticipation of marriage, right?
-: You know, Your Honor,
we did not challenge after appeal.
-: The dental stuff any different than the ring?
I'm trying to understand.
Fixing her teeth is...
-: It was...
The court found that it was a promissory estoppel.
And we only challenged the pre-judgment interest on that.
We did not take the finding in that regard on appeal.
-: So the rule that you would like
is that if it's a ring that's exchanged,
that that is a conditional gift?
Stephanie: Yes. And I think-
-: Okay, but if it's a car that's exchanged,
that's an inter vivos gift.
-: I think those situations
you can get into the specific facts and circumstances
because that is not something that happens everyday
in everyday relationships,
where before people get married.
I think...
-: Well, they move in together and they buy furniture and...
How does that all work?
-: I think you could use the same analysis
that if it's given an anticipation of marriage
and the marriage doesn't happen, then yes.
but that doesn't get us the-
-: But most, I've not seen any cases
where the car is anything other than an inter vivos gift.
Are you aware of that? I think there's a specific...
Stephanie: I'm not a...
-: Societal value on the ring, right?
Or do these other...
The other states say that it could be whatever gift.
-: I'm not aware of any case
that says that a car or a tennis bracelet were given
in anticipation of marriage
and that it gets, you know,
it's not a completed gift.
But- -: But as you note,
usually in these situations, you know,
the dynamics are such that you don't say,
"I give you this car if you marry me."
(Justice Kafker chuckles)
-: But the difference is the ring has a special value in-
-: Right. So you're arguing for a specific...
To this particular type of gift, have this condition.
-: Yes. And I think it's most efficient for the law
because engagement rings
are something that happen very often many people give them.
And it helps the judicial economy
to say, "That in this specific circumstance,
this is the rule,
it's, you know, no-fault.
Donor gets the ring back."
It's the most equitable and it avoids litigation.
These parties have been in litigation for six years
and their relationship was only a year and a half.
(Justice Kafka laughing)
So it's really something that the court does need
to address,
and I think the most equitable solution
would be to find a no-fault conditional gift rule.
I see that my time is up.
If anybody has further questions, I'm happy to stay.
Justice Georges: Could I ask one question?
-: Oh yeah, sure.
-: Counsel, if we were to find that though,
how would it have retroactive applicability?
-: I don't think it should, Your Honor.
Beyond the...
Justice Georges: So how would that help you
if we were to find that?
-: Well, I guess, let me...
I misspoke.
I think retroactive applicability
to a no-fault conditional gift rule
is completely fair and perfectly appropriate.
Because the no-fault part takes the litigation out
for anybody that is breaking up
and doesn't have to fight about fault.
And the conditional gift rule goes-
-: But this would be a new rule.
And typically, when we announce...
Because De Cicco's a fault-based rule.
Stephanie: Right.
-: And you're advocating for a no-fault rule.
So that would be a new rule.
And rarely do we ever say
that when we announce a new rule
it has retroactive application.
So why would we do that and why would it help you?
-: Well, I would say Commonwealth v. Hernandez
would be a good guidepost to follow in that case.
If you're willing to decide
that it is a no-fault conditional gift rule,
it should apply to the present case,
if not retroactively.
As the court did in Commonwealth versus Hernandez,
it applied the new rule to the appellant
that brought the case,
but not retroactively beyond that.
I have to say though,
if you are inclined to make it an outright gift
and follow an inter vivos rule
and do away with it being a conditional gift,
then I think it would be patently unfair to change the law
without an announcement
that for anybody that gives an engagement ring
going forward,
you won't have the right to get it back
if the engagement ends without your fault.
Because that's been the law in Massachusetts for 65 years.
But I don't think the inequity goes the same way
if you make it a conditional no-fault rule.
-: Is it an inequity or is it a due process issue?
-: It could be both, Your Honor.
I definitely think it's an injust.
Where you are relying on the law Settino...
I'm sorry.
Mr. Johnson gave the ring to Ms. Settino
at a time when De Cicco was the law.
And it said, you know, it's a conditional gift
and if the donor...
Their marriage doesn't happen,
the donor can get the ring back if he's without fault.
To change that now and say it's gonna be an inter vivos gift
and he wouldn't have a right to get the ring back,
I think that would be unfair and unjust.
Thank you, Your Honors.
-: Thank you.
Attorney Rosenberg.
-: Good morning. May it please the Court.
Nick Rosenberg on behalf of the appellee, Caroline Settino.
If this court is going to move to a new rule,
I think there's little dispute
that no-fault is the modern trend.
And the parties seem to agree
that the court should not be delving into the fault
or justification for the end of a relationship.
Where there seems to be a dispute
is this conditional gift issue.
And there are three main problems
with the conditional gift concept and possibly others.
One is, as we just discussed,
it requires reading into a party's private act,
this societal idea of what their intent is
when it's not expressed.
Justice Georges: But didn't we already say
it's a conditional gift,
and isn't really the analysis about fault here.
-: But I think- -: Because didn't we say
that... -: The conditional gift...
-: Didn't we say that in De Cicco
that it's a conditional gift and-
Nick: Absolutely. Now-
-: Okay, so let's focus on the fault thing.
The findings in the case are a little bit odd
because there's a continuum here,
and I guess, if we're gonna be talking
about the fault analysis
and whether the trial judge was clearly erroneous
in the fault analysis,
he does credit that there was some mistreatment
of Mr. Johnson that went into
that helped animate the decision to call this off
even though he made a factual finding
that he was wrong about the text messages in the voicemail.
How are we supposed to assess fault?
Where it seems like the trial judge collapses it all
into the text messages in the voicemail,
where Mr. Johnson testifies
about what he perceives as his mistreatment.
He testifies about his deliberation of this,
that it wasn't just on hearing the voicemail
or seeing the text message.
He took a couple weeks to really think about that.
How are we supposed to assess it
without being a justification analysis?
-: Yeah, I don't think the judge reduces it
to just the text message as you said, Justice Georges,
he looked at the context,
looked at the relationship,
acknowledged that there were some potential name calling
or some fights and disputes,
but at the end of the day said
that it was this rash decision to jump to the conclusion,
"You're having an affair, we're done."
That was the predominant...
I used the word predominant cause for the breakup.
He looked at De Cicco,
which was the prevailing rule at the time,
and De Cicco said if he's not without fault.
And the judge looked at that
and said, "Well, he jumped to this conclusion,
said you're having an affair and was wrong
and called it off."
Neither of them at the time
otherwise wanted to break off the relationship.
And that's a factual finding.
And therefore, he was not without fault.
He had some fault.
Under De Cicco he didn't have to find...
-: But doesn't that obviate all of the other testimony
about what he said about how he was treated?
Let me give you a really poor example
that might make this a little bit more simple
as to what my problem is here.
Let's say that your partner lies to you a thousand times.
999 of those times they actually lied to you.
But the thousandth time was,
they actually didn't lie to you,
that it was actually the truth.
So the way, by analog, the trial judge here
seems to say, "Yeah, I credit all of these things
that you're saying about how you feel she mistreated you,
the way she called you names,
that she blamed you for things that went wrong.
But this one time when you thought she was cheating on you
and you mistook this text message or this voicemail
that is the sine qua non to the fault analysis.
And the other 999 times where she lied to you is a nullity.
It means nothing.
-: To be candid,
I think if you look at what Judge Glenny was doing,
I think he sort of did a justification analysis.
Justice Georges: I think he did a little bit of it.
-: I think he did, because I think he looks at these things
and said, "It wasn't reasonable. It was..."
It wasn't justified in breaking this off."
You know, maybe Judge Glenny was thinking,
normally, if you found these texts you might say,
"Hey, what is this? Let's talk about it."
And then when the partner says, "It's nothing."
That he and his wife were invited to the wedding.
-: That's it exactly. -: Right?
-: That's it exactly. -: He and the wife
were invited into the wedding.
-: Because that was informed
by the stuff that happened before.
-: But he didn't...
But Johnson didn't do that.
He jumped to the conclusion and said, "I'm outta here."
So he's not without fault.
And I think, to your... Well, maybe on the same page.
-: That, like, I mean, it seems to me that this discussion
is a CEG as to why we have to move to the no-fault.
-: Precisely. -: Exactly. Right.
-: Yeah. -: So you started to...
You started your argument with the three reasons
why conditional gift no-fault is not good.
And I've now lost track of the first one.
What were the three? -: Thank you, Justice
for bringing me back to that.
The first is it requires the court reading
into a private act,
this condition, that's not there.
I think what came out of the discussion earlier was that...
I think it was even conceded
that the Johnson may not have intended that condition.
And certainly Ms. Settino who said,
"I got these receipts, he gave me this ring.
The receipts are so that I can go return it."
-: I mean, it maybe silly,
but he clearly gave her the engagement ring
'cause he thought they were going to get married.
Nick: Absolutely. An anticipation they'd get married.
-: I mean- -: And what are we reading in?
-: Right. -: Yeah, so there's...
-: So anticipating "We'll get married."
Is different than, "I'm giving you this thing of value."
-: Right. -: Right.
-: "It's a gift. I feel good enough about this relationship
and whereas I'm confident that we're gonna be together.
So I'm willing to part with something of value
and give it to you." But... -: Is that what the law...
I just...
Could you explain what the modern rule is and how it works?
'Cause this old rule seems old-fashioned and kind of silly.
So what is the modern rule and how does it...
Nick: The modern rule of conditional gifts
or the modern rule of...
-: Forget about
conditional gifts. -: Engagement rings
in particular? -: The modern rule
for dealing with engagement rings out there,
is it what?
And how do they...
Nick: So the-
Justice Kafker: The no-fault modern rule,
how does it work?
-: The models out there are that there is no fault.
-: Right. -: That if there's a ring given
and a couple breaks up.
Justice Kafker: Right?
-: Either the ring goes back and some court...
And some states might say unless there's outright fraud,
ring goes back.
Or in Montana, in the Albinger case, a gift is a gift.
The ring stays
-: So what is the majority rule does what with the ring?
If we move to a no-fault system.
-: [Justice Wendlandt] It goes back to the donor.
Nick: More states say the ring goes back.
-: And why do they do that?
-: Because they maintain this concept
of the conditional gift.
-: Okay. -: And if I can address
that point,
and this is important,
one of the ways that the plaintiff tries to distinguish
what Montana did in Albinger's to say,
"Well, Montana doesn't recognize a conditional gift."
Conditional gifts are normal in Massachusetts
and they cite the Mafi case.
That's simply not true.
A conditional gift is a legal fiction
created to get around with the Tybald decision
and allow the man in De Cicco to get the ring back.
We don't have conditional gifts in Massachusetts.
The Mafi case was a charitable donation to a church.
And the analysis there
was whether or not that was held in trust
or a constructive trust to be used for church purposes.
The mention of a conditional gift in the Mafi case,
the court actually put in quotes
because it didn't acknowledge that it's actually a thing.
So the notion that, well we have conditional gifts.
-: So, I'm trying to... -: And we are able
to imply conditions so this is...
Sorry. -: I'm trying to understand
what your are...
'Cause you're representing the person who got the ring,
and you obviously don't want it returned.
But you're also in favor of the modern rule.
How do we rule in your favor if we move to the modern rule?
And let me add one last question to that
'cause I'm not sure I understand the retroactivity point.
I understand when we change and interpret.
I just don't know how that works in a common law case
like this, so...
-: So I think...
A few things.
First, I think that if it's not retroactive.
-: Mm-hmm. -: Then obviously,
we feel that the findings of the trial judge
are well-developed.
Four days of trial, seven witnesses, a few dozen exhibits.
And I think it was addressed...
I didn't address it when I came out
'cause I think it was addressed earlier
that this court is (indistinct) to upset
the findings of the trial judge.
There are a few ways this could go.
I agree Justice Georges,
I think, my sister,
that a change in the fundamental rule from a fault-base
to a no-fault is a new rule that should not be retroactive.
There is one way in which I could foresee this
being retroactive,
which is an interpretation of a statute
that was always the way the statute
should have been interpreted,
sometimes may be retroactive.
And here you might look at the-
-: Actually in the statutes, we say the exact opposite,
which is it's not...
It is.
It's says if we always interpreted the statute that way.
So with a statute, it's the opposite rule applies.
It applies to the parties in the case.
-: Right.
And what I'm saying is,
is if you looked at the Heart-Balm Act and said,
"It never carved out conditional gifts or rings."
The Heart-Balm Act was a Heart-Balm Act from the day it was,
you know, enacted.
That said, "You cannot bring a case to..."
-: That's what De Cicco... -: "To judge right or wrong"
for, you know, "for breaching a promise to marry."
So I think, so...
-: De Cicco carve the ring out of that statute, right?
-: Right. And if this court said,
"Nevermind, I never carved that out.
I never should have carved it out."
Maybe that's retroactive.
But I think if you change the law from a fault base
to a no fault,
that is a significant change.
But I do wanna go to the other reason why...
If I have answered
your question. -: No, no. Yeah.
-: Thank you.
The other reason
why the conditional gift rule is problematic
is, of course, because of the Heart-Balm Act.
And chapter 207, section 47A.
And Johnson, the cases cited in their brief,
stand for the proposition that the societal norms
hold that the engagement ring is symbolic of this pledge.
This promise to marry.
Then implies that condition into it,
even though it's not expressed by the parties.
And if that condition is breached, the ring then goes back.
But the elephant in the room
is what's this condition that's being read into it?
And it's that someone is going to marry you.
And the statute of Massachusetts,
section 47A of chapter 207 says,
"A breach of a contract to marry
shall not constitute an injury or wrong recognized by law,
and no action, suit or proceedings
shall be maintained therefore."
It means that there is no wrong
in deciding not to get married.
-: I'm still struggling with why we're talking about this
because De Cicco said we're gonna carve out
the engagement ring about it.
So we have to talk about the conditional gift
even in light of the Heart-Balm statute don't we?
-: I think we have to recognize that at the starting point,
an inter vivos gift is a gift.
It is complete on transfer.
If you have the intent and you transfer it
and it's accepted that that is a gift.
There is no such thing other than De Cicco's creation
of this ring in limbo that, you know,
the one with the diamond ring it's an option.
-: So are you... -: On the marriage it say...
-: Are you contending that a person
literally cannot achieve a conditional gift?
Like I'm gonna say to my child, you know,
"I'm gonna give you $20 to spend at the candy store
this evening.
I'm giving it to you right now at 9:00 AM,
and I want to make this really real to you.
You are going to be really obedient
for the next nine hours while we do a painful task.
And then you'll go to the candy store."
And then she's not obedient.
I take away the $20.
I'm choosing a really simplistic analysis,
but like, isn't it possible
to achieve a conditional gift in reality?
-: To be completely honest, I thought the same thing
as I got into this case.
I thought this...
We talk about it all the time.
-: But not... -: Charitable gifts...
Justice Georges: But not for marriage.
Justice Kafker: Right.
-: Not for anything. That's a remedy.
You as a parent have the right
to take something away from your child,
the money.
But it's a gift when you talk about charitable gifts
and you give to a museum and you say,
"Well use it to buy art and I want it back."
Those are trust. You can establish a trust.
A gift is you're transferring title of property, ownership.
And the ring is either yours or it's mine.
There is no such thing as this,
it's yours for now,
but then I'm gonna bring an action to take it back.
One, because in terms of a strict property in gift law,
there's no such thing in Massachusetts.
And two, because under the statute you can't...
We can't sue to get it back. -: And also.
We've said that marriage, like we don't enforce, you know,
marriage broker contracts.
We don't impose fault in divorce.
We've said we don't wanna encourage bad engagements.
We don't...
Or bad marriages.
We wanna stay out of that business, right?
So conditional gifts can be fine,
but not conditioned on marriage, right?
That's the real...
That was probably the error in De Cicco.
-: Yeah, there may be other areas
where if the legislators thought
that we should have conditional gifts
or, you know, trust law develops.
Perhaps my point is just that the argument that,
"Oh, it's just another conditional gift
and we have those a lot."
Is just simply not the case and that the issue is-
-: [Justice Wendlandt] In fact the default
is inter vivos gifts.
Nick: I'm sorry, what's that?
-: The default is inter vivos gifts.
-: Yeah, the default is that if you say,
"This is of value and I want to give it to you
because I think we'll be together forever.
If you're wrong, you're wrong." That's a different problem.
It's, "I give it to you."
And when you take it, you've now taken a gift.
And to attach some revocability is not supported in law.
-: So can person... -: That was a response
in De Cicco and other states
that had cases like De Cicco saying,
"We've passed these Heart-Balm statutes
so women can't go around suing these men for their,"
you know, "lost affection, whatever."
But now the guys can't get the rings back.
-: Can the guy get the ring back if he says,
"Here, I want you to wear this."
Nick: That's...
-: "I want you to wear this in anticipation of our marriage."
-: Right. I think that that is more like a trust.
If you wanna hold this in trust for me, right?
And this sort of goes back to the wedding band
with his initials on it, right?
It was understood you're gonna hold this
and then at the wedding you're gonna give it back to me.
So hold this in trust for me.
A ring is...
I think in our society, and I think in the case,
is I'm giving you the gift.
Otherwise, I mean, to say it's a conditional gift to me
actually sort of cheapens it, right?
I'm giving you this, but I'm not really giving it to you.
It hasn't been transferred,
the value hasn't been transferred.
-: But is that...
I mean, I get it, but is that the rule?
Is that the...
The majority rule seems to be the opposite.
It's not treated as an inter vivos gift.
Nick: Correct.
More states than... -: It's treated more as a-
-: More states than not have kept the conditional gift rule.
Albinger, Montana, the court...
And I recognize it's described as being an outlier.
It is the only state that has done it.
But it's not just dicta.
They go through all the history of the Heart-Balm acts,
all the history of conditional gift law.
It is like Massachusetts and not distinguishable
because Montana, like Massachusetts,
doesn't have conditional gift.
It was invented for this purpose.
And it's incredibly well-reasoned.
And there are other cases that have been-
-: But I'm still struggling with what does that mean
for this case?
What does that mean for this case?
This case is De Cicco, right?
-: I think De Cicco needs to be either,
if it's held then I think that Judge Glenny got it
right on the facts and found he was not without fault.
And if the court says De Cicco is antiquated
and we need a new rule,
the new rule should be the standard,
which is a gift is a gift.
And again, to the point in Albinger,
the Cooper case in Ohio,
didn't ultimately go that way.
But in the decision
they agree that it's a very sensible way to go.
-: If I could, before I lose you,
just because I wanted an answer to this because of De Cicco.
So the justification analysis,
one of the things that De Cicco talks about,
if it is the law,
that when they were...
When Mr. Johnson gave this ring to Ms. Settino,
De Cicco was the state of the law.
So please indulge me that that's what we're talking about.
So now we're talking about whether or not
there was clearly erroneous on the fault analysis.
De Cicco talks about how at root,
this is an unjust enrichment case.
And they say that specifically,
it's about unjust enrichment.
So if we're talking about unjust enrichment,
how is it that we can do that
without actually doing a justification analysis
to see whether or not
the person is going to be unjustly enriched
because their behavior leading to whatever it was
that caused you to finally pull the lever
is part and parcel to the fault analysis.
And in that respect, isn't there some measure here
that the trial judge just didn't really evaluate all of that
and just really distilled it all too.
You saw these text messages, you were wrong.
You you pulled the trigger because you were wrong
factually about whether she was having an affair.
So you'll lose.
-: Back to the discussion we had earlier,
I think isn't that essentially doing
the equity justification,
unjust enrichment discussion.
-: I don't know that it is
because it seems like he...
Like I said, it boils down
to this is axiomatically why you'll lose
because you were wrong
and therefore you're at fault for calling it off
because you are wrong.
-: And he found neither party
otherwise was thinking to call it off.
That Settino wanted to stay in this.
So I think he implicit in that
is she's not unjustly enriched
because she was willing to stay,
she was willing to stick around.
And he actually otherwise was okay
even with the fights they had.
But for this misconception.
So in terms of the unjust enrichment,
she's not unjustly enriched
'cause she would've stayed,
she would've stuck it out had he just, you know...
-: Stuck it out. Sounds like a romantic man, right? (laughs)
Stuck it out.
-: So you had started...
-: 15 years, I'm thinking about it. (laughs)
-: You had started oral argument
by saying that there are three reasons.
I got down two.
The reading a condition where it doesn't exist,
the Heart-Balm Act itself, and...
-: And we...
Thank you for keeping me organized.
The other one is this notion of the conditional gift, right?
There's the implication,
reading the implication into the gift.
There's the Heart-Balm Act,
but there's also, I think we did cover in bits and pieces,
this fabrication of the conditional gift idea.
That it's just something that's...
-: Oh, the default- -: That De Cicco invented.
-: Is inter vivos.
-: Right. That the gift is- -: And carved out
the ink for engagement rings.
This conditional gift idea that previously did not exist.
-: Right. And then for... -: Okay.
-: And for true reason, one is that it does...
It was created stemming from this, you know,
highly gendered expectation to get around Tybald
and the Heart-Balm Act.
But also just because it's inconsistent
with Massachusetts gift law.
It just doesn't...
There's just doesn't... It was created at a whole cloth.
-: [Justice Wendlandt] Okay.