From Chapter XI, Promised Gifts in the Third Edition of A Legal Primer on Managing Museum Collections:
A. Obstacles to Enforcement
"If an object (or money) has been promised to a museum and if the gift is not completed, does the museum have any resource? Enforcing such promises is usually difficult because of a lack of what is called 'consideration'. If all the elements of a valid gift (donative intent, delivery, and acceptance) cannot be accepted, then a promise, to be enforceable, must be shown to have the requisites for a valid contract. Contracts require a demonstration of 'consideration' on the part of both parties [...]
To put this another way, for a valid gift one must have the following elements:
1. Evidence of intent to make a gift
2. Delivery by the donor with intent to pass the title
3. Acceptance by the donee (the museum)
If these elements have not taken place and if the donor is unwilling or unable (because of death or change in fortune, for example) to complete the gift, the donee (the museum) has no legal cause of action unless it can prove that the issue is not just an incomplete gift but rather an unfulfilled contract. (A contract is enforceable; a promise of a simple gift, one without consideration, is not.)
To prove a contract, the donee (museum) must show the following elements:
1. A definite promise
2. An agreement between the parties as to what the promise is (a 'meeting of the minds')
3. Consideration on the part of both parties
Consideration is 'an act or forbearance or the promise thereof done or given by one party in return for the act or promise of another'. Both parties to a contract must proffer consideration. In the typical promised-gift situation, the prospective donor has already made a promise to act (the donor's consideration). So to argue that the gift situation is actually a contract, the donee (the museum) must show some form of consideration."
I hope this helps! The only other advice I have is to get your museum's attorney involved before you make any promises to the donors.
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Claire Aldenhuysen
Museum Education Specialist
National Model Aviation Museum, Academy of Model Aeronautics
Muncie IN
Original Message:
Sent: 10-14-2016 11:54 AM
From: Katie Edwards
Subject: Fundraising Controversy
As a fundraising tool, donors of a certain amount are recognized with a small plaque on a bench in our sculpture garden. Recently, we were approached by a woman who wanted to surprise a friend in honor of her birthday. She rallied the woman's friends and collected checks of around $250 each from more than forty people and a plaque was installed that read "In Honor of Name, <name>Happy Birthday From Your Friends." We all thought it was very sweet. </name>
Unfortunately the recipient of this gesture did not. She was VERY upset that someone had solicited funds using her name, accused the lady who planned the surprise of "trying to look like a big shot donor" and asked us to take her name off the bench because she found the whole thing embarrassing. Apparently there have been tears, phone calls, and much drama amongst this group of friends; for our part we apologized for any distress and agreed to remove her name from the bench.
But now one the forty or so friends who contributed has asked for her portion of the donation back and I fear that others will follow. Has anyone dealt with a situation like this and how did you handle it? About half of the people gave are existing donors to our organization but some have never been involved and I guess are viewing it purely as a birthday gift and not a charitable donation. The person who requested a refund indicated she felt misled by the person who organized everything but I've seen a copy of the email that was sent out soliciting the checks and there is nothing misleading (except the presumption that this would be a welcomed birthday present.)
I don't want to make this situation any more awkward than it already is and if possible want to engage the new donors in a way that will get them interested in coming to our events and exhibits. Any best practices or words of wisdom?
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Katie Edwards
Director of Communications & Development
The Society of the Four Arts
Palm Beach FL
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