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Formalizing Gratuitous and Contractual Transfers: A Situational Theory

68 Pages Posted: 15 Oct 2013 Last revised: 15 Aug 2014

Adam J. Hirsch

University of San Diego

Date Written: August 14, 2014


By tradition, gifts, wills, and contracts are formalized according to protocols established within each legal category. This Article examines the policies that underlie these "formalizing rules" and concludes that the utility of those rules depends fundamentally on the background conditions under which a gift, will, or contract occurs. Those background conditions, rather than the category into which the transfer falls, dictate the optimal formalizing rule for a transfer. In light of this observation, the Article proposes an integrated approach to formalizing rules that varies the required formalities for a transfer on the basis of situational criteria rather than the prevailing categorical ones.

Keywords: gifts, wills, contracts, formalities, statute of frauds, statute of wills, nuncupative wills, gift causa mortis, will contract, contracts to make wills, will substitutes

JEL Classification: K11, K12, K19, K30, K39

Suggested Citation

Hirsch, Adam J., Formalizing Gratuitous and Contractual Transfers: A Situational Theory (August 14, 2014). Washington University Law Review, Vol. 91, No. 4, 2014; San Diego Legal Studies Paper No. 13-134. Available at SSRN:

Adam Jay Hirsch (Contact Author)

University of San Diego ( email )

5998 Alcala Park
San Diego, CA 92110
United States

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