Finders/Gifts Flashcards
What does the plaintiff want when suing for trover?
the value of the item in cash
What does the plaintiff want when suing for replevin?
the item back in his/her possession
Original Armory Rule
The title of the finder is good against the whole world except the true owner
If the defendant cannot give the item back to the plaintiff (because he/she sold it), what does the defendant owe the plaintiff?
Fair market value
If person A finds a bracelet, then loses it, and person B finds it, can person A sue person B for the bracelet? Why or why not?
yes, because first finders have title against all others except the true owner
New Armory Rule (as it applies to multiple finders)
Finder’s title is good against the whole world except the true owner as well as anyone who discovered it first.
Explain the Winkfield Rule
If person A finds an item and sells it to person B, true owner C cannot due person B. Person B has an answer to an action by the true owner
define bailor
an individual who temporarily gives possession of an item to a bailee under a bailment
define bailee
an individual who temporarily gains possession, but not ownership, of a good or other property under a bailment
Rule of Thieving Finders
even though the thief was the possessor before the finder, the courts will rule for the finder because he/she is the honest subsequent possessor
Why do we not protect thieving finders?
because we don’t want to condone or protect thieves.
define constructive possession
legal possession of an object even when its not in their physical control
What is the best way to tell the difference between lost and mislaid property?
location of the item
What is the English rule of an employee finding lost items in a public place?
the servant finds in behalf of the master, the employer wins
what is the American rule of an employee finding lost items in a public place?
finder wins
Who wins in a treasure trove situation? Finder or OLIQ?
finder, unless the finder is a trespasser
define lost property
property that is unintentionally lost or neglectfully dropped
define mislaid property
property that is intentionally placed, unintentionally left
define abandoned property
property that is voluntarily and intentionally placed and walked away from. The owner has no intentions to come back for it
define treasure trove property
intentionally placed, usually buried, for safekeeping with intent to return
for lost property, who usually wins? (no true owner known)
finder, unless finder is a trespasser
for lost property, who wins if the finder is a trespasser?
OLIQ
for lost property, who ALWAYS wins?
true owner
for mislaid property, who ALWAYS wins?
true owner
for mislaid property, who always wins, if no true owner is located?
OLIQ
for treasure trove, who usually wins?
finder
why wouldn’t a finder win in a treasure trove situation?
if the finder is a trespasser
what are the three requirements for a valid gift?
intention, delivery, and acceptance
define manual delivery
handing over the actual object
define constructive delivery
handing over a key or some subject that will open up access to the subject matter
define symbolic delivery
handing over something symbolic of the property given (usually a note)
define disclaimer (as it pertains to accepting a gift)
refusing a gift
give a reason why someone might refuse a gift
they don’t want to pay taxes on it, they don’t need it, or if refused, will go to the next of kin who needs it more
what is a donatio causa mortis?
deathbed gift
what is an inter vivos gift?
lifetime gift
what type of delivery, if possible, must occur?
manual
in what situation is manual delivery not required?
when the item is too big or heavy to manually deliver
when is symbolic delivery not valid?
for gifts causa mortis (unless that symbolic delivery is in the form of a will)
define testator
someone who dies with a will
define intestator
someone who dies without a will
for gifts causa mortis, what is the only way a gift is guaranteed?
when it is in a legal will
