10.1 Introduction

Speech act theorists, such as John Austin, Peter Strawson, Zeno Vendler, John Searle, Michael Hancher or Mitchell Green,Footnote ¹ take a gift to be among the range of things we can do with words. From their perspective, a gift is an illocutionary act, an act performed in uttering a meaningful sentence. In the right circumstances, saying, for example, “This bike is yours” is what it takes to gift it to you.Footnote ² The consensus is that the utterance, whether implied or expressed, is a necessary component of the act.

Speech act theorists give their insights about gifts in passing. Once compiled, their scattered remarks reveal some remarkable disagreements and aspects left in the dark. One disagreement regards to what extent the giftee participates in the act. Most speech act theorists require gifts to be taken in by their recipients. As for any other illocutionary acts, the need to be heard and understood is taken to be among its felicity conditions. However, Peter Strawson contemplates the possibility of a gift unknown to its recipients in the form of a “will that is never read”.Footnote ³ Speech act theorists who insist on the need of an uptake diverge about whether the giftee is further required to accept the gift for the act to be completed. Besides these points of division, speech act theorists have neglected the deontic dimensions of gifts. If I give you my bike, what I seem to be giving you is the right to use it forever while ipso facto losing mine. John Austin hints at the related deontic changes when he classifies gifts (together with ordering, prohibiting, enacting law) among “exercitives” by which “powers, rights and influence” are conferred.Footnote ⁴ Likewise, Zeno Vendler includes gifts among “operatives” (along with “arrest, sentence, condemn, fine, offer, surrender”) issued when “I say something and the social, ritual, or legal effect ipso dicto takes place”.Footnote ⁵ Austin and Vendler do allude to the deontic effects of gifts but leave it at one’s guess what they precisely are. These are quandaries about gifts, at best quickly addressed in the past, providing the occasion, seized in the present chapter, to expound on the topic. To further reflect on how gifts are made with words, I mobilize Adolf Reinach’s The Apriori Foundations of the Civil Law, first published in 1913.Footnote ⁶ Reinach has written very few and sparse remarks on gifts.Footnote ⁷ However, his theory of “social acts”, developed almost fifty years before How to Do Things with Words (1962), provides the notions and distinctions that are useful to elucidate the aspects of gifts which Austin and his followers have parenthetically addressed or neglected. As many commentators have stressed, what Reinach calls “social acts” are very much like Austin’s “illocutionary acts”.Footnote ⁸ Following the crowd, I will also assume that “they are the same acts”Footnote ⁹ and, to avoid confusion, I use the slashed terms “social/illocutionary” to refer to both at once.

The discussion is structured around the previously outlined issues. Section 10.2 addresses Strawson’s example of the will that is never read. This example does not refute the giftee’s need to grasp the utterance in which gifts are made, I argue, because the act of writing a will is not yet the social/illocutionary act of making a gift to one’s heir. The question whether gifts need to be accepted is discussed in Section 10.3. In light of Reinach’s discussion of acceptance of promises, I argue that, although a gift need not be accepted, to refuse it blocks its completion. Section 10.4 critically examines Austin’s intuitive view of a gift as always involving a “gesture”, in the usual form of a handing over of something. This view, I argue, misguidedly focuses on the things that are gifted, whereas it is in fact the ownership over these things that is in all cases transferred to the giftee. Relying on Reinach’s insights on transfers and ownership, I put forth the “Ownership View of Gifts”, as I call it. I then consider the alternative view of charity-gift proposed by Waldron in Section 10.5. According to Waldron, a gift can be made by waiving property rights.Footnote ¹⁰ While I show that Waldron’s view does not withstand scrutiny, I also show how a gift can be made by an act of waiving one’s claim over someone else’s property rights. It is the main result of the present Reinachian inquiry that most of the puzzles raised by gifts dissolve once attention is redirected from its physical aspects – from the gestures, the thing that is gifted, its change of location – to the metaphysical underpinning of the speech act that is performed.

10.2 Does the Gifter Need to Secure Uptake?

The present inquiry focuses on those gifts that are made in the performance of a locutionary act.Footnote ¹¹ Relevant examples of the latter are “I hereby give you my bike”, “Here is a gift for you”, “Look what I got for you!”, “Have some wine”, or simply “My gift!” while pointing at the thing thus being gifted. The act done in each of these utterances is a gift.Footnote ¹² Giving birthday presents, giving cash gifts, writing a will, making a bequest, distributing grants, bestowing prizes, donating money, almsgiving, etc. are commonly taken to be instances of gifts. Are they all genuine instances of the kind? The nature of gifts – what a gift fundamentally is – is a question that has been largely neglected.Footnote ¹³ It is also one that need not be resolved for the purpose of the present inquiry. Nothing should be presumed about the genus of gift, not even that the alleged instances of gifts listed above have any common properties in virtue of which they are gifts. It suffices that certain utterances have the social/illocutionary force of a bequest, of a birthday gift, of almsgiving, etc., and that the latter are commonly described as “gifts” in ordinary language.

As a social/illocutionary act, a gift depends on the linguistic competencies of its two parties. I focus on the illocutionary acts of making a gift, in contrast to requesting one (“Will you give me your bike?”), to promising to make one (“I pledge to give 10 percent of my income to the poor”), to discouraging (“No tipping”) or to encouraging one (“Give What You Can”). Verb-terms and expressions commonly spoken to express the making of a gift are “to give”,Footnote ¹⁴ “to bring something as a gift” or simply “to gift”.Footnote ¹⁵ Some clarifications are in order. First, the utterance through which a gift is made need not contain the term “gift” nor any similar expressions. “Take it!”, “Have it!”, “I bought it for you!” are efficient alternatives.Footnote ¹⁶ Moreover, the same utterance can serve different illocutionary acts. In some context, someone may say “The pen is yours!” to give it to you, to order you to grab it, to warn you against the risk of losing it, etc. Reinach admits that a social/illocutionary act can be performed silently as long as it is “expressed in mien, gestures”.Footnote ¹⁷ In some circumstances, nodding, raising one’s eyebrows, smiling while pointing at the bike are the outward signs of the illocutionary act. Finally, let us note that the verb give can serve other illocutionary acts than a gift. If I say: “I am giving a party next Saturday”, “giving” means “organizing”, so it is correct to understand what I say as me announcing the event.

Both for Reinach and Austin, a social/illocutionary act must be heard and understood. Austin speaks of the “need to secure correct understanding”Footnote ¹⁸ of the audience. According to Reinach, an uptake is a necessary condition of a social/illocutionary act. “The turning to another subject”, he claims, “and the need of being heard [by that subject] is absolutely essential for every social act”.Footnote ¹⁹ Social acts need “to be announced or communicated” in contrast to “internal acts” (such as forgiving, deciding) which “can lack any announcement to others”.Footnote ²⁰ However, Strawson wonders if securing uptake applies to the case of a bequest that remains undisclosed to its recipient:

The case of a will that is never read is not meant to refute, but merely to downplay, the need to secure uptake. The latter, as Strawson grants, remains “essentially a standard, if not an invariable”Footnote ²² element of all social/illocutionary acts.

Against Strawson, one may insist that making sure the utterance is understood is not a mere desideratum, but an essential aspect of illocutionary acts. As Reinach argues, the utterance “is not something that is added thereto as an incidental extra; rather, it stands in the service of the social act and is necessary in order that this should fulfill its announcing function”.Footnote ²³ That announcing function is precisely not satisfied in Strawson’s case of the will that will never be read. However, merely restating the necessity of being read (heard, understood, having an uptake, etc.) of all social/illocutionary acts does not suffice to rule out Strawson’s case. Indeed, isn’t the point of that example to cast doubt on the necessity of uptakes that both Austin and Reinach take to be necessary to social/illocutionary acts: to suggest that unbeknownst gifts really are gifts?

There is an ambiguity in the act of making a will which may have mislead Strawson into thinking that it qualifies as an illocutionary/social act. The ambiguity is between the act of writing a will and the outcome of that act in the form of a legal document named “a will”. The suggestion here is that the need to secure uptake is true about that document, but not about the act of writing that document. Reinach’s subtle distinction between acts that are “other-directed” and acts that are “addressed” is relevant to capture Strawson’s confusion. Reinach defines “other-directed acts” as acts that are “essential[ly] directed to a subject other than the originator”.Footnote ²⁴ For instance, to forgive or to envy are always to forgive and to envy someone. By contrast, acts that are addressed to someone require the participation of another person who “consciously takes in” the act: who hears and understands the utterance through which the act is made. While all social/illocutionary acts are thus “addressed” according to Reinach, they are not all other-directed. Indeed, “other-directedness” characterizes certain “internal acts” such as forgiving you and being afraid of you. The addressed/non-addressed distinction and the directed/non-directed distinctions are hence orthogonal. Promises are both other-directed and addressed. Declarations and enactments are addressed (therefore social/illocutionary acts) but are not other-directed.

These distinctions may have eluded Strawson and led him to mistakenly assume the other-directedness of the act of writing a will makes it a social/illocutionary act. However, once one rather focuses, as Reinach invites us to, on the need to be addressed, it becomes clear why the act of writing a will is not an instance of the social/illocutionary kind. The writing of a will, like any other act of writing, is fully completed before it is read by anyone. “A good thing done”, the testator may think once she is (indeed) done with the task. However, the mere writing of the will, while a crucial step in the making of a gift, is not (yet) a gift. It is only when the outcome of the writing – the written document – is read and understood by the court and the heirs at the testator’s death that the latter really are gifted what is left to them in the will. Until then, the document has not fulfilled its purpose: no gift has been effectively made. In short, the will qua a document must be addressed to the heirs and taken in by them. The sheer act of writing is not addressed in the related Reinachian sense of the term but also does not count as a gift, either legally or from an a priori point of view.Footnote ²⁵

The necessity of hearing and understanding the utterance by which gifts are made (discussed and defended in this section) is different from the necessity or the mere conceptual possibility of accepting them, which is discussed in the next section.

10.3 Do Gifts Require Acceptance?

In How to Do Things with Words, John Austin asks: “Are you required to accept the gift if I am to give you something?”, then notes that “in formal business, acceptance is required”,Footnote ²⁶ but then wonders if it also features in casual gifts. If so, what appears to be the act of one person – a “unilateral act” as Austin names it – turns out to be the act of two, namely, a “bilateral act”. In the latter case, the giftee participates in the act in a more demanding form than by simply hearing and understanding the utterance in which it is made. He would have to accept the act.Footnote ²⁷ The question is not whether gifts can be refused (of course, they can). The question is whether a gift has been made in the circumstance where it is refused. If a gift is a bilateral act, refusing it prevents it from being brought into completion. Austin then ponders if the seeming bilaterality of gifts is a defining feature of all social/illocutionary acts: “The question here is how far can [illocutionary] acts be unilateral. Similarly the question arises as to when the act is at an end, what counts as its completion?”Footnote ²⁸

Is acceptance of a gift essential to its making? If the gift causes trouble to its recipient (think of a dog), it seems that the giftee must have the option to do something to prevent the act. The other intuition relates to the contrary case where the giftee, being wholly pleased with what she is gifted, would rightly consider accepting it as unneeded. The asymmetry between the cases of the unwanted gift and that of the welcome gift is not well accounted for if gifts are (merely) thought of as either unilateral or bilateral acts.

Reinach’s insights on acceptance, I submit, provide a way to reconcile the two intuitions. Reinach clarifies the term by distinguishing between five different meanings of acceptance, among which is the “purely inner experience, an inner ‘saying yes’ an inner assent”Footnote ²⁹ to some social/illocutionary act. Accepting a gift is just the experience of the internal act of approving of it, of finding it to one’s taste. Alternatively, accepting can itself be “a social act in its own right”.Footnote ³⁰ To accept is, in this other sense, always to accept or express a response to another social/illocutionary act (an invitation, to take a bet, an offer, etc.). Three possibilities can be distinguished in this regard. Accepting a social/illocutionary act can either be:

1. (i) a possible response to that act

2. (ii) an impossible response to that act

3. (iii) necessary to the completion of that act.Footnote ³¹

Let us look at the related three cases more closely with the view to figuring out which one, if any, is relevant to the cases of accepting the gift. First, acceptance is a possible response vis-à-vis those social/illocutionary acts which do not depend on it for being done. Nominations and invitations are cases in point. While you do have the option to either decline or accept my invitation to dinner, I have invited you regardless. Not so, it seems, as far as gifts are concerned, if it is true that a gift has not been made in the case its recipient refuses it. Unlike refusing an invitation, refusing a gift does stop its completion.

Secondly, acceptance is impossible vis-à-vis certain social/illocutionary acts which are such that to either accept or decline does not make sense. Reinach holds commands and requests to be examples of acts that are not meant to be accepted nor declined. Reinach writes that “with [commands and requests] it is a question of imposing an obligation on the addressee of the social act, and this of course really does not need some acceptance”.Footnote ³² For example, a teacher who commands a late student to arrive on time next time imposes an obligation on that student. The teacher should not worry about securing the student’s acceptance although she might not be indifferent as to whether the student takes her command seriously or whether she internally assents to it. Obligations created by commands and requests are such that the option to accept, or, for that matter, to decline them, is just not there. To be sure, commands can be obeyed or disobeyed, and requests can be answered or left unanswered. However, to disobey is to not act as one is commanded to act, but the important point is that the command has been fully made independently of whether it is obeyed or not. Unlike a command, however, a gift is such that the option to refuse it is there.

A third way acceptances relate to illocutionary/social acts is by being a necessary component of such acts. Acceptance is here required for the completion of the illocutionary/social act of which it is the necessary response. According to Austin, a bet is a relevant instance of the latter. “For a bet to have been made”, Austin notes, “it is generally necessary for the offer of the bet to have been accepted by a taker (who must have done something, such as to say ‘Done’)”.Footnote ³³ A bet is an instance of a “bilateral act”, and the question is whether a gift is, as Austin also suggests, another bona fide instance of the kind. The idea is that it takes two for one to make a gift, the giftee playing his part of the act by accepting the gift, either explicitly or implicitly.

Michael Hancher concurs with this hypothesis.Footnote ³⁴ The bilaterality of certain social/illocutionary acts, Hancher argues, is brought to light by the redundancy of adding “and he accepted the act” to any description of the related act. In particular, the bilaterality of appointment is underlined by noting that, in the following two sentences, “the extra clause [in (b)] goes without saying”:Footnote ³⁵

1. [a] Smith appointed Jones to the committee.

2. [b] Smith appointed Jones to the committee and John accepted it.

Applying Hancher’s argument to gift, one may note the same stylistic awkwardness in:

1. [c] Julie gave her bike to Paul, and Paul accepted it.

Acceptance is already featured in (what is misguidedly described as) Julie’s act. Julie’s act is a bilateral act, one may further argue, because, unlike declining an invitation, declining a gift prevents it from being made. And this is in accordance with the intuition, previously described, about how the refusal of gifts which carry obligation results in their cancellation.

However, construing gifts as bilateral acts fails to account for the asymmetry underlined previously between the cancelling effect of refusing unwelcome gifts and the superfluity of accepting wanted gifts. The related asymmetry may be explained, I shall argue, in light of Reinach’s view about how the acts of accepting and declining respectively relate to promises. Reinach holds acceptance to be an unnecessary component of promises. Acceptance is not required “for the efficacy of the promise” according to Reinach and “can at most serve to confirm” it.Footnote ³⁶ It is “not necessary to a promise that it be accepted.” The addressee of the promise, Reinach claims, only needs to “take cognizance of the act of promising”.Footnote ³⁷ Acceptance is therefore a possible response to a promise (akin to acceptance being a possible response to an invitation). However, Reinach also holds conversely that “an act of declining [a promise] prevents both claim and obligation from coming into being”.Footnote ³⁸ For example, if you decline my promise to invite you to play tennis with me once a month, you prevent me from incurring the obligation to invite you to play. The option of blocking a promise toward oneself seems important to secure when the promise gives rise to an obligation to act in some unwanted way. In the contrary case, accepting a promise appears as a superfluous addendum. Reinach’s view about the distinct jural effects of accepting and of declining promises points toward the following fourth hybrid case in which:

1. (iv) on the one hand, accepting a social/illocutionary act is an impossible response to that act and, on the other hand, declining the same social/illocutionary act brings its performance to a close.

The asymmetry previously outlined regarding accepting and refusing gifts, I submit, is another instance of these fourth hybrid cases. While it is not necessary for a gift to be accepted, declining a gift prevents its completion. The underlying explanation for the related asymmetry could be analogously related to the importance of not imposing on the recipient of a gift any potentially unwanted obligations. In particular, when a gift entails the transfer of certain obligation(s),Footnote ³⁹ the option to prevent the gift from being made by refusing it should be at the giftee’s disposal.

The important point to retain is that whereas a gift does not require acceptance for being done, refusing a gift does block its completion. The distinct roles of accepting and refusing gifts, to which Reinach draws our attention through his analysis of acceptance of promises, seem to have been overlooked by Austin and Hancher. Having resolved the questions of the essential role of uptake (Section 10.2), and of the unessential role of acceptance (Section 10.3), I shall now emphasize the deontic dimensions of gifts.

10.4 Gifting by Transferring Ownership

A gift is intuitively visualized as someone handing something over to someone else. Austin has done a lot to show what is wrong with that view, redirecting our attention from the physical actions – here the handing – to the utterance. The latter, as Austin claims, is “a, or even, the leading incident in the performance of the act”.Footnote ⁴⁰ However, Austin also remains faithful to the intuitive view by granting a key role to the gesture. “It is hardly a gift if I say ‘I give it you’ but never hand it over”.Footnote ⁴¹ The gesture associated with a gift need not be a handing. It can be a passing, a pointing, etc. In all cases, the intuitive idea seems to be that whatever is gifted to someone must be put at her disposal. To be sure, as it has certainly not escaped Austin, certain giftables (cars, houses, lands, etc.) are not liable to be handed over.Footnote ⁴² Implicit in the received view are therefore metaphysical limits as to what can be gifted. Only entities that are liable to be held and relocated are “giftables”.Footnote ⁴³ These properties appropriately disqualify concepts, feelings, numbers, weddings as possible objects of gifts. However, the view also restricts “giftables” to “movables”, unduly ruling out gifts of things that are too heavy for being handed to anyone (cars) or gifts of things that by their nature (lands) remain where they are.Footnote ⁴⁴ Be that as it may, it is tempting, following Austin, to assume that the handing, or some cognate gesture, is necessary to most other central cases of giftsFootnote ⁴⁵.

In this section, I show why that intuitive view is not correct, and not even an accurate account of the restricted range of cases of movable gifts (flowers, rings, etc.) it is supposed to be. The main problem of the intuitive view is that it targets the things (the bike, the flowers, the glass of wine) involved in gifts as what is given to the giftee, whereas it is in fact their ownership that is fundamentally targeted by the act. When I give you my bike, what I fundamentally do is to convey to you the ownership I have over it. The revision suggested here is meant to be commonplace. Still, the change of focus from the object of gift to its ownership also has important implications, as I intend to show, which speech act theorists have disregarded as the result of their focus on the things that are gifted instead of the change of ownership that these things undergo when they are brought to someone as gifts.

Let us remark, first, that the distinction between the thing that is owned and the ownership that someone has over that thing is sometimes hidden in ordinary talk. French people refer to what they own as “ma propriété” (“my ownership”) as if ownership was a generic category that comprises all the things that someone owns. Likewise, one commonly hears of “someone having ownership over something”. This misleadingly suggests that ownership can be had by someone, therefore being itself liable to enter into another ownership relation, in a regressus ad infinitum inasmuch as this new ownership relation would also be liable to be owned, etc.

Reinach’s theory of ownership, to which I now turn, scrupulously prevents the confusion.Footnote ⁴⁶ This is because Reinach conceives ownershipFootnote ⁴⁷ as a dyadic relation between someone (the owner) and a thing.Footnote ⁴⁸ To have the ownership of a bike is to relate to that bike in a particular way. Reinach further qualifies the ownership relation as a “thoroughly ‘natural’ relation which is no more artificially produced than is the relation of similarity or of spatial proximity”.Footnote ⁴⁹ Reinach also holds ownership to be a prelegal relation, one that “comes into being even where there is no positive law”.Footnote ⁵⁰ The island on which Crusoe is shipwrecked provides the fictitious law-free environment in support of that view. “When Robinson Crusoe produces for himself all kinds of things on his island, these things belong to him”.Footnote ⁵¹ The ownership relation is further qualified as a primitive relation, that is, as one that “cannot be further resolved into elements”.Footnote ⁵² Moreover, but no less crucially, it is, Reinach claims, ownership over a thing which confers to the owner “the right to deal in any and every way with the thing”.Footnote ⁵³ Against the proponents of the bundle of rights theory of ownership, Reinach urges us not to conflate the ownership relation with “the absolute right [of the owner] to deal in any way he likes with the thing which belongs to him”.Footnote ⁵⁴ These absolute property rights, while distinct from the ownership relation, are also “grounded” in the latter. Reinach subscribes to the view that ownership “is itself not a right over a thing, but rather a relation (Verhältnis) to the thing, a relation in which all rights over it are grounded”.Footnote ⁵⁵ As Olivier Massin suggests, the grounding relation between the absolute property rights and ownership is an essential relation.Footnote ⁵⁶ It is in virtue of the essence of ownership that whoever owns a thing also has the absolute right to use that thing in whichever way she desires.

The ownership relation between an owner and what she owns stands in contrast to other kinds of relations between persons and things. In particular, the ownership relation differs from the relation of possession that someone has over the thing he has at his disposal. If the ownership/possession distinction sounds otiose, it is because often the owner of a thing also possesses it. However, it is among the sophistications of Reinach’s theory of ownership to accommodate the cases where possession is dissociated from ownership. The dissociation occurs when someone steals something. While the thief now has possession of the bike, he has not acquired its ownership.

Once ownership, so defined, is recognized as the targetFootnote ⁵⁷ of gifts, it becomes clear why the gestures (the handing over, passing, putting forth, etc.) included in the intuitive view are not relevant to the act. Ownership occupies no space, has no weight, nor has the three-dimensions of its two relata. If so, while the thing that is gifted may be liable to be grasped, handed over to the giftee and be thus relocated, its ownership moves nowhere, and, in fact, is nowhere. And yet, it is really the ownership over the thing – being conveyed, as it were, from the gifter to the giftee – that undergoes the crucial ontological change in all cases. The complexity of gift as a “four-legged act” (involving a gifter, a thing that is gifted, the ownership of that thing, and the giftee) is revealed. We may accordingly redescribe a gift as an act by means of which someone (namely, the gifter) makes someone else (namely, the giftee) the new owner of a thing.

The alternative and presumably refined view of gift here outlined – the Ownership View of Gift (hereafter “OVG”), as I name it – differs from the intuitive view in several respects. First, the intuitive view, because it focuses on the thing that is gifted, is attentive to what now appear to be contingent features (the change of location, the episodic nature of the act). The OVG focuses on the ownership over that thing as the necessary target of gifts. From this perspective, a gift is an instantaneous act (while it takes time for a thing to be handed over to someone, the change of ownership undergone by that thing takes no time).

Secondly, whereas the intuitive view ascribes a central role to the physical gestures by which the gift is carried to the giftee, the OVG urges the neglect of these gestures and puts forth the (implied or explicit) utterances through which gifts are made as essential to their performance.

Thirdly, whereas, on the intuitive view, a gift is one by which the gifter gives a good to someone, the OVG offers a different view of the nature of the illocutionary of the act – one that makes someone the new owner of somethingFootnote ⁵⁸ – that is performed when a gift is made.

Fourthly, whereas the intuitive view of gift, focusing as it does on the thing that is being gifted, is prone to identify the “commissive” aspect of gift (i.e., the fact that the speaker is committed to bring that thing to the giftee), the OVG, emphasizing the underlying ontological change of ownership, redirects attention to the power of gifts to change reality. As Reinach insists, the ontological change taking place when “a thing is conveyed ‘into the [ownership]Footnote ⁵⁹ of another’ […] is more than a linguistic turn of phrase. It is really the case that the supporting member of the relation of owning (i.e. the owner) modifies the relation by his own act in such a way that he drops out of the relation and someone else takes his place, though for the rest the thing and the relation remain identically the same”.Footnote ⁶⁰ To understand the nature of the power of the transfer of ownership, Searle’s distinction between speech acts with a “word-to-world” and those with a “world-to-word direction of fit”Footnote ⁶¹ is helpful. The typical utterances (“this is yours”) through which gifts are made have both directions of fit. Their propositional content not only “represents the reality as being so changed”,Footnote ⁶² it also modifies the reality to make it match the content. The distinctive power of gifts to change reality is one the intuitive view, fixed as it is on the contingent changes of location sometimes undergone by the thing that is gifted, cannot properly register. Uttering “I hereby transfer to you the ownership of the bike”Footnote ⁶³ is more truthful, even if admittedly clumsy, to the ontological changes involved in gifts than “I hereby give you my bike”.

Fifthly, the two views differ in their conception of the illocutionary force of the utterances (how that utterance should be interpretedFootnote ⁶⁴) through which gifts are made. Whereas the intuitive view refers to the illocutionary force of the utterance as to give, the OVG takes it to be to make someone the new owner of something. To my knowledge, there is no single English term for that illocutionary force – a noteworthy lacuna given the use of “appropriation” for the act of making oneself the new owner of a thing.

While all these differences vindicate the OVG, indeed revealing its greater accuracy, a proponent of the OVG also faces additional challenges from which advocates of the intuitive view are spared. In particular, if the illocutionary force of a gift is, as the OVG has it, the making of someone else the owner of a thing, it is presumably an act that has the effect of altering the deontic status of both the gifter (who loses the ownership of the thing and property rights over that thing) and the giftee (who correlatively acquires both). Following Reinach, we may refer to “the jural power to produce, modify, etc. rights and obligations through his own social acts” and the “natural ability” to, say, hand over something to someone.Footnote ⁶⁵ The proponent of the OVG is expected to specify who has the related jural power to make someone the owner of a thing, and also which social/illocutionary act that person has to perform to that jural effect. The OVG will readily provide the requested clarifications as follows. For X (the gifter) to have the jural power to make Y (the giftee) the new owner of a, it needs to be the case that:

1. [1] X is the owner of a.

2. [2] X transfers ownership of a to Y.

Both requirements are commonsensical. In his entry “Speech Act” of the Stanford Encyclopedia of Philosophy,Footnote ⁶⁶ Mitchell Green gives voice to [1] when he points to the “preparatory conditions” that must be met for the speech to not misfire, illustrated by the case of a person who “cannot bequeath an object unless she already owns it”.Footnote ⁶⁷ As far as the role of transfer in gift, it is widely recognized among legal theorists.Footnote ⁶⁸ However, although scholars correctly point to the role of transfer in gifts, they fail to notice, let alone think through, as Reinach does, the ontological change and deontic aspects that transfers of ownership have the power to bring about.

First, the ontological change realized by a transfer of ownership is “to change the relation of belonging by changing its bearer”.Footnote ⁶⁹ The content of the transfer – what is transferred – need not be an ownership relation. A transfer can, alternatively or additionally, bear on property rights, on a relative obligation, on a claim or on a jural power. In each case, however, the act of transfer is such that, as Edmund Husserl puts it, “through it” an entity “passes from one person to another”.Footnote ⁷⁰ In other words, a transfer unfolds in such a way that at the beginning the transferor has the entity and the transferee does not have it, whereas at the end, the transferee has the entity and the transferor does not.Footnote ⁷¹

Secondly, both legal scholars and speech act theorists who reflect on gifts fail to register that “[t]he transferring of [ownership] also presupposes a power to transfer insofar as owning essentially implies the right to deal in any and every way with the thing, the power to transfer the thing into the ownership of others is contained in this right”.Footnote ⁷² The power (or right) to transfer ownership is just one of the “absolute rights” that the ownership relation, in virtue of its nature, confers to owners. “It is grounded in the essence of owning”, Reinach claims, “that the owner has the absolute right to deal in any way he likes with the thing which belongs to him”.Footnote ⁷³ The jural powers grounded in ownership stand in contrast to the jural powers that have their source “in the person as such”.Footnote ⁷⁴ Following Kevin Mulligan, the distinction between those jural powers that are grounded in ownership and those that have their source in personhood may be further explicated as follows. While being a person is all that is needed for having the jural power to “apologize, promise, accept promises, order, ask questions, answer questions, inform, grant, request, submit himself, thank”,Footnote ⁷⁵ merely being a person does not suffice for being endowed with the jural powers to condemn, to declare (war), to baptize, to dissolve the government or to petition for bankruptcy. Likewise, I submit, being a (thin) person does not suffice for having the jural power to transfer to someone the ownership of a thing. Only those (thick) persons who have the ownership of that thing in the first place have the jural power to transfer its ownership to someone else. By extension, one may say that gifters do not have the power to make a gift of a thing they do not own. Speech act theorists, such as Hancher, point to the “commissive” dimension of gifts,Footnote ⁷⁶ suggesting that utterances such as “Have some wine” commit the gifter to making what is gifted readily available. However, it may now appear that the March Hare’s misfired gift to Alice could instead be a matter of the March Hare not having the jural power of gifting the wine to Alice.

Because the OVG confines the category of gift to the transfer of ownership, it conceptually rules out the gifts of stolen things. Approached in consideration of Reinach’s distinction between ownership and possession, the gifts of stolen things would correspond to the case where what is transferred is the possession of a thing. Someone who has stolen a bike possesses the bike without owning it. She can transfer the possession of the bike to someone else without thus transferring the ownership of the bike. If Julie steals John’s bike, Julie possesses it while John still owns it although he has lost the power to use it. Julie can then transfer her possession of John’s bike. Paul is now the new possessor of the motorcycle, while John remains its owner. Now the pressing question is: Has Julie gifted John’s bike? The answer to that question is not entirely clear and depends on whether a transfer of possession that is dissociated from a transfer of ownership can have the illocutionary force of a gift. I shall point to two implausible implications as decisive considerations in support of ruling out the related case. First, it would entail that the recipient of the gift possesses that which she is gifted without being further endowed with its ownership or with the property rights to use the thing. While the recipient would be able to make use of the thing, she would not have the property rights to act accordingly.

It is time to recap the sequences that, on the OVG, unfold in many central cases. For X (a gifter) to gift her a to Y (the giftee), it needs to be the case that:

1. (i) X initially owns a.

2. (ii) X utters, either implicitly or explicitly: “I hereby transfer the ownership of a to Y”.

3. (iii) Y hears and understands X’s utterance.

4. (iv) Y does not decline the transfer of ownership.

5. (v) As the result of (i)–(iv), Y becomes the new owner of a.

The OVG, as it is outlined here, may appear to achieve generality at the cost of being at odds with the intuitive understanding of the act. One may object that it is at odds with the ordinary use of the term “gift” which does bear on things, not on their ownership, let alone a relation between someone and a thing. However, the OVG does not conflict with the widespread view that the objects of gifts are things. It really is the bike (not its ownership) that I bring to you as a gift. The rectification that the OVG urges to make regards technical aspects of gifts. In particular, the OVG presses for reconsidering the illocutionary act by which a gift is done in terms of a transfer of ownership from oneself to the recipient of that gift. The OVG also presses for reconsidering the illocutionary force of a gift as making someone the new owner of a thing.

10.5 Jeremy Waldron’s Encounter: How to Make Gifts by Waiving Ownership

Jeremy Waldron also purports to define “what charityFootnote ⁷⁷ is and what it involves”.Footnote ⁷⁸ Waldron intends to refute both the view “that charity involves a positive act of assistance”Footnote ⁷⁹ and the correlated claim that “withholding charity can be seen as an omission – a mere failure to act”.Footnote ⁸⁰ As he notes, “[t]his image of charity derives from the old biblical story of the Good Samaritan”, the latter being usually seen as actively doing what is needed to rescue the man. In the biblical story, “charity means putting oneself out, actively intervening for someone else’s benefits”.Footnote ⁸¹ As a plausible alternative, Waldron proposes “a different image of charity” as being achieved “by doing nothing”Footnote ⁸² (or almost nothing, as I will shortly explain).

Waldron tells two variants of the biblical story. In the first, two bad Samaritans actively prevent some weary travelers from helping themselves to the foods displayed on a table in their house. In the second version, one good Samaritan inactively lets weary travelers help themselves to the food. What the latter version reveals, Waldron argues, is that charity can consist in “passively allowing another to help himself to the resources”:Footnote ⁸³

The central claim here is that waiving property rights over something (in the present case, a typewriter) suffices for giving it to someone just in case the latter is able to help himself to, or is already in possession of, the thing. The conception of gift defended here advances two requirements. One is the “waiving of property rights”, which Waldron correctly conceives as being performed in the mere uttering “Keep it – it’s yours”. The other requirement is on the recipient of the gift, who is expected all by herself to enter into possession of that which is gifted.

According to Waldron, the originality of this conception is that it dispenses with the physical acts (such as “putting myself out for your sake”) which, on a more conventional conception, are necessary for making a gift. From this perspective, Waldron seems to endorse a version of the OVG presented in Section 10.4. However, Waldron’s view does depart from the OVG when, instead of a transfer of property rights,Footnote ⁸⁵ it puts forth a waiving of these property rights as the act by which the change of ownership is brought about.

Waldron is right to note that the mere waiving of property rights does not suffice for making anyone the bearer of these property rights. Waiving property rights over a leaves a un-owned. Waldron is also right to claim that entering into a relation of possession with something can in itself create an ownership relation with that thing. However, Waldron is wrong to infer that the performance of these two amalgamated acts – a waiving on one side matched by an act of appropriation on the other – amounts to the making of a gift. Reinach’s insights about the social/illocutionary act of waiving can be mobilized to explain why it is so. Waiving, as Reinach notes, is “a social act which lacks the moment of other-directedness. Waiving refers merely to that which is waived, in this case to the claim; it is not directed to a person”.Footnote ⁸⁶ Waiving, like declaring, revoking and enacting, belongs to the sub-category of social acts which are not other-directed. In support of that observation, one may note that the following sentence:

1. [d] “I hereby waive my property right over that thing to you.”

does not sound correct. The important point is that if a waiving is not other-directed, the act fails to display the other-directedness that is essential to gifts: the fact that the propositional content of the sentence through which a gift is made always refers to the recipients of that gift.

Although a gift cannot be done by merely waiving a property right over a thing, the social/illocutionary act of waiving can be involved in genuine cases of gift. Consider the case of Julie who promises to give Paul her bike if he gives her CHF100. Julie’s conditional promise is a defining feature of economic exchanges.Footnote ⁸⁷ Suppose that Paul gives to Julie the requested amount and then changes his mind: he no longer wants to buy Julie’s bike and is also willing to not ask Julie to give him back the CHF100 that he transferred to her. Maybe Paul has been told that Julie put her bike on sale because she urgently needs the money. Because Paul wants to be kind to Julie, he is now disposed to gift her the CHF100 which he initially transferred in exchange for the bike. What Paul can do (and this is, in fact, the only thing he can do) so that Julie has the right to keep both his money and her bike is to waive his claim over Julie’s bike.

The fictitious example described here illustrates a way of making a gift other than by transferring the ownership of the thing that is gifted. Paul has already transferred the CHF100 to Julie, but the transfer was done in the context of an economic exchange between the two. The ownership of the CHF100 was shifted to Julie when she and Paul were still engaged in buying and selling each other’s goods. What makes the case tricky is that Paul makes Julie the new owner of his CHF100 not by transferring to her his ownership over the money, but by waiving his claim over Julie’s bike. The money is what Paul gifts to Julie. But the social/illocutionary act that Paul performs in order to gift the money to Julie is to waive his claim over Julie’s bike. It is a case of an economic exchange that evolves into a case of gifts as the effect of a social/illocutionary act, namely a waiving of a claim, that modifies the nature of the interaction. It is a case in which a buyer (Paul) takes the role of a gifter while the seller (Julie) becomes ipso facto the beneficiary of a gift.

10.6 Conclusion

This chapter is a follow-up to dispersed and occasional remarks on gifts that speech act theorists have made. Far from having the ambition to be a speech act theory of gifts, the upshots of the present inquiry can nonetheless be assembled in the form of a (non-exhaustive and provisional) list of conditions for the (illocutionary-)making of gifts. It is time to recap the main findings and also to gesture at some of the issues that a full-blown speech act theory of gifts would have to tackle.

I have first shown that a gift has not been made if the giftee has not grasped the utterance through which it is made. Strawson may have been misled by the other-directedness of the writing of a will that is never read into supposing that it is a bona fide instance of a speech act. While the orthodox view about the utterance being essential to the illocutionary act remains unchallenged, it is not entirely clear, as Maryam Ebrahimi Dinani rightly points out, what from Reinach’s perspective “the general requirement of grasp” precisely means.Footnote ⁸⁸ In the case of gifts, it is an interesting question to ask the extent of the understanding that is implied in the grasping. While it seems reasonable to require that the addressee understands the nature of the act (as an instance of a gift) as well as the role (that of its recipient) she is ascribed in the act, it is less clear whether the addressee is also further expected to grasp the nature of the social/illocutionary act (an act of transfer) performed and also the illocutionary force of the utterance (making her a new owner) through which the act is made. What knowledge of these various hidden aspects of the gift should be expected on the part of the addressee? The level of understanding that the general requirement of grasp presupposes needs to be specified to avoid a theory of gift that is too cognitively demanding, because it is at odds with the intuitive, pre-theoretical understanding of the act that manifestly suffices for its successful performance.

A second result of the inquiry is that a gift may not be the “bilateral act” that Austin has in mind if its acceptance, in the form of a social/illocutionary act, is superfluous, as I have argued. Granted: the intended recipient of a gift has the option to prevent the act from being completed. However, if this is what is at stake, the option can be chosen simply by declining the gift in the relevant circumstance. It seems unnecessary, I have argued, that the recipient also does her part of the act, as it were, by accepting the gift in the alternative circumstance where she wants it.

There is another reason for rejecting the requirement of acceptance. It tends to confound what is fundamentally a single act with a collective one. The way the giftee is essential to the act of gifting is not by co-performing the act, but simply by uptaking it. The utterance through which the gifter makes a gift has to be heard and understood by the giftee, but the gifter is the only agent making that gift.Footnote ⁸⁹ Thus, although a gift involves two persons, it remains the act of one person only. There is no we-gift, only an I-gift matched by a You-uptake.

Finally, it is a third result of the inquiry to press for a shift of focus from the thing that is the object of the gift to the ownership over that thing that is transferred to the giftee. The merits of the shift of attention are threefold: to lay bare the metaphysical underpinning of the act, to confront us with its conceptual boundaries, and to accommodate a greater range of cases. The unexpected variety of gifts is maybe the most striking result of the present inquiry. To gift my bike to you, I can either transfer its ownership to you, grant you the right to revoke your promise to pay for it or waive the right I have over the amount of money you owe me. One can also suppose that the actual diversity of the act is not fully laid bare by these three sub-cases, and therefore the subject matter warrants further exploration.Footnote ⁹⁰