470 Property Law

wife not so that it should be her property but so that she should have its use and enjoyment. There it was a pony and trap, a saddle, and a dog; and the court held that she must show that the husband had done that which amounted to delivery and that, if the facts proved were equivocal, she must fail. And, in Re Cole [1964] 1 Ch 175 at 192 Lord Justice Harman said that if the act in itself was equivocal it did not constitute delivery.

The same must apply to the conduct or words which manifested intention. They must be clear and unequivocal; if they were not, the gift was not established.

In the present case there was no suggestion that it was an ordinary kind of gift made out of natural love and affection. The conduct was equivocal. Therefore, the property remained where it started, in the husband. The appeal should be allowed.

Lord Edmund Davies, concurring, said that the case sprang from the passions aroused by pedigree poodles. Why dogs should inspire strong emotions was not far to seek. Aldous Huxley said that ‘To his dog, every man is a Napoleon – hence the popularity of dogs.’ Despite her amorous activities, so popular was Springtime Ballyhoo that the rival claimants had, doubtless at considerable expense, brought the dispute about her ownership right up to the Court [of Appeal].

The present case was the direct converse of Re Cole in which Lord Justice Harman had observed that the English law had always been chary of the recognition of gifts. Here there had been a clear act of delivery of his poodle by the husband to the wife. The question was: What intention accompanied the act? In his Lordship’s view, on the proved facts, no gift was intended or effected. It was most improbable that in the autumn of 1964 the husband would be animated by any sort of generous impulse towards his wife. The dispute was symptomatic of deeper and graver issues; but the wife had not established the gift.

Mr Justice Cairns concurred in allowing the appeal.

Notes and Questions 12.2

1Read Re Cole [1964] 1 Ch 675, either in full or as extracted at www.cambridge.org/propertylaw/. What is the difference between constructive delivery and symbolic delivery? What sort of things may be delivered in these ways, and how?

2If you share a house with a friend and you own all the furniture in the house, and you want to give it to her, how would you do it? Why is it so difficult?

3In Re Cole, Pearson LJ appears to suggest that a gift of goods is not validly made unless and until it is accepted. Is this correct? See Hill, ‘The Role of the Donee’s Consent’.

4Read Lloyds Bank plc v. Carrick [1996] 2 All ER 630, CA, and Wilson v. First County Trust (No. 2) [2003] UKHL 40, either in full or as extracted at www.cambridge.org/propertylaw/, and consider the following:

(a)Explain why there was a contract between Mrs Carrick and her brother in law.