DerryNews.com, Derry, New Hampshire

April 11, 2013

He's singing the birthday blues

About the Law
Andrew Myers

---- — My boyfriend and I recently broke up and he’s asking for the laptop he bought me as a gift back. He has the receipt. It was delivered to our apartment and he said, “Happy Birthday,” as he handed it to me.

We both used it. Now that we broke up he wants it back. I refuse, as I use it for school and work, and I have no other computer. He does. He is saying he will take me to court. Does he have a case against me?

Three legal elements must exist to complete a valid gift. If they all exist, a gift is irrevocable. That means the giver can’t get it back. The elements are: (1) donative intent (2) delivery, or giving of the gift, and (3) acceptance of the gift.

In your case, intent seems clear where he said, “Happy Birthday,” as he handed you the computer. That also appears to complete the delivery requirement. Based on what you’ve written, it sounds like you accepted the gift and used it as your own. So, where all three elements are there you have an irrevocable gift.

It sounds like either a control issue or possibly he left some files on the computer. So, offer to either provide the files by moving them onto a thumb drive, or transfer them to him through one of the free file sharing applications like Dropbox or LogMeIn.

How many times can you file the same civil case if it has not been heard in the court room yet? On the first court date, I couldn’t be there and on the second date the other party and I came to an agreement in the before entering the court. We left the court together without notifying them of our decision. Can the case be filed again?

Court is not like the trendy coffee shop. You don’t come and go as you choose. A scheduled court date requires your appearance. Sometimes a motion to continue filed in advance takes care of it.

The second time, where you were both in the courthouse, your presence should have been reported to the clerk in the courtroom where the matter was scheduled. Something along the lines of a report of settlement or joint motion to continue could have saved the case.

If the case has been dismissed “with prejudice,” you’re all done. If the case was dismissed “without prejudice” and if the statute of limitations has not expired, it can be refiled. This would be noted in the court docket. Have an attorney straighten this out.

Once when I answered a similar question by answering that a court date is your priority over anything else that day I was told I was insensitive. Don’t shoot the messenger. That’s the way it is.

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Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.