Midterm Flashcards
The stages in Evolution of Rights (4)
The Evolution of Rights
- The Rise of English Jurisprudence
- Social Contract Theory
- Definition of Right
- John Locke and the Pronouncement of Property Rights
Elements of the rise of English Jurisprudence (4) (from the evolution of property rights)
Stage 1: The Rise of English Jurisprudence
- Roman Law
- The Development of English Common Law
- The Magna Carta
- Clerical Philosophy and the Recognition of Natural Law
Elements in the Clerical Philosophy and the Recognition of Natural Law (5) (from the rise of English Jurisprudence)
Stage 4. Clerical Philosophy and the Recognition of Natural Law
- Magna Carta
- 4th Lateran Council
- St. Thomas Aquinas
- William Ockham
- John Wycliffe
John Locke’s Treatise and what he declared:
Two Treatises on Government
- Natural law provides 3 rights: Life, Liberty and the Pursuit of Property.
Where and when was the Magna Carta signed, and by who?
The Battle of Runnymede (1215), signed by John I
What was the Magna Carta foundational for? (2)
- Modern British Law
2. US Constitution and its Amendments (Bill of Rights)
What did the Magna Carta achieve?
Limited power of government and expanded rights and liberties of people
How many clauses in the Magna Carta, and which are highlighted?
63 clauses, highlighted:
Created a council to the King (a forerunner to parliament);
- Freemen access to courts and a fair trial
- Specified many property rights (like infringement by the king and his agents)
- Eliminated unfair fines and punishments
- Gave legal powers to the Catholic Church
- Addressed many lesser specific issues
What did the Magna Carta not achieve?
abolition of slavery
def: Sovereignty
Power of rule
def: postulate
a statement that is taken to be true (synonym: axiom)
Postulates of Property law (4)
E-PUT
1. Rights vs. Things - Property viewed as a collection of “Rights”
not a collection of “Things”
2. “Intertwined” - Property Rights are those recognized by Law
and the Law evolved from Property Rights
3. Endowed - Our Foundations of Law recognized
that we are endowed with Property Rights
4. E-PUT
Elements in the 4th postulate of property law (acronym)
E-PUT E - Exclude P - Possess U - Use T - Transfer
Types of Property
- Real (Rights in Land) - Real Estate
- Personal (Rights in Objects) and/or Chattels – Tangible, visible “things”
- Intellectual (Rights in Ideas).
- Patents – Idea for Product or Process
- Trademarks – Logo, Identification or Distinction
- Copyrights – Written or Performed Works
[C4-1] Why Do We Recognize Rights in Property? (5)
- First in Time First in Right - Method to allocate resources not yet owned
- Labor - Entitled to fruits of your labor
- Utilitarianism - People respond to incentives - Private Property maximizes overall happiness
- Economics - Society responds to incentives - Private Property maximizes overall wealth of society
- Liberty and Personhood - Private Property is essential to the development of a free society and individuals
[C4-1] Property Rights Cases
One who wrongfully deprives of another’s’ possessory rights is liable to recovery.
[C4-1] Election of Remedies (theories of recovery) in Property Cases (3)
- Replevin - an action to recover the chattel itself
- Trespass - action to recover money damages incurred by reason of the dispossession
- Trover - action to recover the value of the chattel along with damages for dispossession
[C4-1] Escheatment - def: escheat
Return to the State
[C4-2] Rights to personal property are acquired or lost by (8)
- Transfer – Sale
- Occupancy
- Adverse Possession
- Accession
- Confusion
- Judgment
- When the chattel is lost, mislaid, or abandoned
- Gift
[C4-2] Property law concerning fructus naturale
Plants that grow spontaneously on land considered to be real property (a part of the land) and therefore real.
Therefore, title to the land includes
[C4-2] def: Fructus Naturale
natural fruits of the land
[C4-2] Property law concerning fructus industriales
As a general rule, regarded as personal property not real property
[C4-2] def: Fructus Industriales
crops produced by labor on the part of man
[C3-2] Who was Jeremy Bentham and what was he known for?
- Famous positivist legal commentator
- Linked property rights and the law
- Quoted in worksheet “Property and the Law are born together and die together.”
[C4-2] Lost Property can be kept: (2)
If:
- Under $20 in value
- Reasonable attempt made to find owner
[C4-2] Abandoned Property can be kept: (1)
Kept by the finder no matter what its value
[C4-2] Domesticated Animals are considered what type of property and why?
Personal property - They are moveable
[C4-2] Wild Animals - In natural state are considered:
Unowned
[C4-2] Wild animals - When do they become private property?
Upon being reduced to possession by a person exercising dominion and control over it
[C4-2] Wild animals - What must a person do to be the owner of a wild animal, protected under the law?
Must ESTABLISH that they have exercised dominion and control over the animal
[C4-2] Wild animals - What case was famous regarding possession of a wild animal? What animal was involved?
Pierson v Post
- a fox
[C4-3] Wild animals - How can one establish they have possession?
Constructive Possession - Animals caught in trap (or net) belong to the owner of trap
[C4-3] Wild animals - Mere Pursuit and it’s exception
Does not constitute sufficient exercise of dominion and control to establish it as personal property
Exception: Property right is vested to the person who mortally wounded the animal even if someone else does the final blow.
[C4-3] Wild animals - Violation of Statute
Violating a statute (fails to have a hunting license) forfeits title to animals caught or killed
[C4-3] Wild animals - Trespass and the reason
Kill animal on another’s land forfeits title in favor of the landowner.
Reason - In order not to promote trespassing
Note: This rule does not change the fact that the animal is unowned (by either person) until reduced to possession
[C4-3] Wild animals - Escape
Animal escapes and resumes its natural liberty owner loses their property right in it and the animal is again unowned
[C4-3] Wild animals - Escape exception
Habit of Return (if any of the following are met) proves title is not lost
- Can prove an escaped animal has a habit of return to master’s home
- Pursued by the owner
[C4-3] Wild animals - Marked animals
Courts will allow title to be retained in the former possessor as long as the owner exercises all possible effort to recapture the animal
[C5-1] Gifts - Types (2)
- Inter Vivos - During life
2. Causa Mortis - Contemplation of death
[C5-2] def: Lien (the what and why)
What: A charge, claim, right to retain, security or encumbrance on property
Why: For payment of some debt, obligation or duty
[C5-2] Classes of Liens (2)
General and special (special superseded in issues of choosing)
[C5-3] Bailment - Non-Dispensable Issues
- Transfer of Possession
2. Intent of the bailee to take control of item
[C5-3] Bailment - Elements (acronym)
DAPPER D- Delivery A - Acceptance P - Purpose P - Personal Property E - Entered into for benefit (of at least one party) (motive) R - Redelivery of property
[C5-2] Liens - Special Notes (2)
- Cannot be levied against someone else’s property (must be the owner giving right)
- Can be waived by:
- Contract
- Acceptance of other security
- Demand for unlawful charges
[C5-1] Gifts - Elements (3)
- Donor’s Intent
- Delivery
- Acceptance
[C5-1] Gifts - Elements (3) (acronym)
IDA
I - Intent
D - Delivery
A - Acceptance
