Chapter 48 - The Nature of Property, Personal Property, and Bailments Flashcards
Real Property
1) Land and anything attached to the land
2) Fixtures - property that is initially movable but becomes attached to land
Personal Property
1) All property not land or permanently affixed to land
2) tangible - can be identified by the senses
3) Intangible - cannot be seen or touched, not a physical object, bank accounts, stocks, and insurance policies
4) Primary issues: a) means of acquiring ownership of the property and b) the rights and duties arising out of a bailment
Voluntary Transfer of Property
1) Can be purchase or a gift
2) most common means for acquiring prop
Transfer by Purchase
1) Buyer gives some consideration to seller for title (ownership of the property)
2) title may require registration with govt agency – cars, boats, houses etc – cert of title must be signed by selle, taken to agency and transferred to buyer
Gifts
1) sole promise to make a gift is unenforceable
2) Three necessary elements to make a gift
a) Delivery - may be:
actual - physical presentation of the gift
constructive - entails delivery of gift, gives access to the gift, or represents it
b) Donative Intent to make an immediate gift- donor makes delivery with the purpose of turning over ownership at the time of the delivery
c) acceptance - willingness of the donee to take the gift from the donor
3) Inter vivos gifts - gifts made during donor’s lifetime
4) gift causa mortis - gift made after death of donor (3 elements must occur before death)
5) gifts CAN be conditional
Conditional Contracts
1) Obligations under a contract do not arise until the happening of a certain event
Involuntary Transfer of Personal Property
1) occurs when property has been lost, abandoned, or mislaid
2) finder may acquire property rights
Abandoned Property
1) property that original owner has discarded
2) finder becomes owner via possession
Lost Property
1) Property owner has unknowingly or accidentally dropped or left somewhere.
2) no way of knowing how to retrieve it
3) finder has title to the lost goods against all but the original owner (most states)
Mislaid Property
1) Owner has intentioOnally placed the property somewhere but has forgotten its location
2) The owner of the realty where property was mislaid has rights to hold it
3) Some states must put on an ad for mislaid property
4) finder has title against all but true owner
Other Means of acquiring property
1) Creation - owned by creator (unless paid to create)
2) court order
3) confusion – fungible goods (identical units) - each party rights to percentage of contributed good
Bailement
1) occurs when one party (bailor) transfers possession of property to another (bailee) to be used by the bailee in an agreed-on manner for an agreed-on time period
2) Liability
a) if bailment only benefit bailor - bailee liable dor property damages bc of gross negligence
b) if bailment solely benefit bailee - bailee responsible for slightest lack of care for property
c) both bailee and bailor benefit - bailee liable for damages cause by ordinary or gross negligence
3) “act of god” neither responsible
4) liability can be modified via contract i.e. not responsoble for items stolen from lockers
Rights of the Bailor
Right to expect the bailee to
1) take reasonable care if the baailed property, repairing it and maintaining as necessary
2) use the property only as stipulated in the bailment agreement
3) not alter the property in any unauthorized manner
4) return the property in good condition after the bailment
Duties of the Bailor
1) provide the bailee with any agreed-on compensation for the bailment
2) reimburse the bailee for any necessary costs incurred by the bailee during the bailment
3) provide baulee with property free from defects that could harm bailee
if mutual benefit – must warn of defects discoverable through resonable investigation
onle bailee benefit – only warn on known defects
4) violation of duties = sued for negligence or breach
Rights of the Bailee
Right to
1) possess the prop during term of bailment
2) use prop as consistent with terms of bailment
3) receive compensation for bailment unless bailment is gratuitous
4) retain bailed property until payment is received, may sell if no payment w/ bailee’s lein
Duties of the Bailee
1) take reasonable care of the bailed property, repairing and maintaining it as necessary
2) use bailed property as stipulated in agreement
3) not alter in any unathoried manner
4) return prop in good condition
Documents Related to Bailments
Bailment agreements
1) can be expressed or implied
2) written or oral unless bailment > 1 year –> statute of frauds
Document of title
1) Art VII UCC – houses, cars, boats, etc
2) “bearer” “to the order of” is negotiable
Bill of Lading
- document issued by a person engaged in business of transporting goods verifies reseipt of goods for shipment
A Wharehouse Receipt
- receipt issued by a person engage din the business of storing goods
Delivery order
- written order to deliver goods directed to a party issues lading wharehouse recepits
Common Carriers
1) licensed to provide transportation servises to public (not private)
2) cannot refuse business if inside routes
3) acceptance of package = mutual benefit bailment BUT bailee (carrier) has strict liability in protecting the bailed property even if no negligence
4) liable unless: cause by act of god, act of public enemy, shippers actions, nature of good (interpreted narrowly)
5) more than one carrier = througgh bill of lading
Inn keepers
liabillity similar to common carrier
