Midterm-Larceny Flashcards
1
Q
What are the elements of Larceny
A
- A taking (caption); 2. and carrying away (Asportation); 3. Of tangible personal property; 4. Of another; 5. By trespass; 6. With intent to permanently (or for an unreasonable time) deprive the person of his interest in the property.
2
Q
Larceny may only be committed by…
A
The acquisition of PERSONAL PROPERTY capable of being possessed and of some value
3
Q
What is law regarding larceny realty and severed material?
A
Realty and its fixtures are NOT subjects of larceny. If fixture is severed and then repossessed by the owner and THEN taken, this is larceny. Must not be attached.
4
Q
Are Services Larceny?
A
NO. Obtaining services wrongfully is not larceny, traditionally.
5
Q
What is an exception to the intangible rule?
A
Gas and Electricity ARE considered personal property that may be stolen.
6
Q
What have modern statutes done to larceny and written documents/instruments?
A
Expanded larceny to include written documents embodying intangible rights. Generally written documents were regarded as MERGED with the matter they represented
7
Q
What is required to satisfy the “of another” element?
A
All that is necessary is that the property be taken from someone who has a possessory interest superior to the defendant
8
Q
What is the requirement regarding the taking be from one with “possession”
A
If the defendant is in possession as a bailee then the taking is not larceny, its embezzlement. The property must be taken from someone who is not the defendant.
9
Q
Custody vs. Possession
A
Those in possession have a higher level of authority to deal with the property than does custody
10
Q
When does an employee have custody and when does he have possession?
A
A low-level employee generally has custody of their employers’ property. They have possession, however, if the employer gives them especially broad powers over it or if the property is given to them by a third party directly
11
Q
What is “breaking the bulk?”
A
Breaking the bulk is when a bailee opens a closed container. Misappropriating property after breaking the bulk is guilty of larceny–>if she had the intention to steal
12
Q
What does a bailee have?
A
Generally, Possession.
13
Q
Can an owner be guilty of larceny for taking her own property?
A
Yes, If she was not in lawful possession “at the time of the taking.” Example: Taking back a car you leased to someone for a year 3 months into the lease
14
Q
What is rule on stolen property
A
Stolen property can be the subject of larceny. Second thief steals it from the first thief
15
Q
What is the rule on joint property
A
At common law, larceny could not be committed by the taking of jointly held property by one of the joint owners
16
Q
Is destruction or movement of property considered larceny?
A
NO
17
Q
Is obtaining control by way of an innocent agent considered larceny?
A
YES
18
Q
What is required for asportation?
A
That all the parts or portions of the property be moved and that this movement–which only need be slight–be apart of the carrying away process.
19
Q
What type of movement satisfies the asportation element of larceny?
A
Any movement–even slight movement
20
Q
What does trespassory element require?
A
That the property the defendant is taking is being taken WITHOUT THE CONSENT of the owner
21
Q
Define Larceny By Trick
A
If the victim consents to the defendant’s taking custody or possession of the property, but this consent has been induced by MISREPRESENTATION then the consent is INVALID
22
Q
What is sufficient intent for larceny?
A
Intent to create substantial risk of loss–>If D intends to deal with the property in a manner that involves substantial risk of loss, this is sufficient for larceny.
Intent to pledge goods or sell them to owner–>It is larceny to take goods with the intent to sell them back to the owner or to pledge them, because this involves a substantial equivalent of permanent loss or high risk of permanent loss.
23
Q
What is insufficient intent for larceny?
A
Intent to Borrow–>If the defendant intends to return the property in a reasonable amount of time and has a substantial ability to do so,[This does not work for cars–>that is called joyriding, though. Not larceny
Intent to Obtain Repayment of Debt–>It is not larceny to take money or goods of another if the defendant honestly believes that she is entitled to them as repayment for a debt of the other–[if the same $$ amount, not more]. In this situation the defendant believes the property is “hers” and therefore lacks the requisite mental state to “deprive someone else of HIS property.”
24
Q
What are the possible sufficient mental states for larceny?
A
Intent to pay for property–>If the property taken is not for sale–>Larceny, if the property is for sale–>NOT
Intent to Claim Reward–>If the defendant takes goods, intending to return them for a reward this is not larceny because she does not plan on keeping it. Unless she ONLY plans on giving back IF there is a reward because it creates a substantial risk of loss.
25
What are the requirements for lost or abandoned property?
If it is abandoned, owner gives up possession-->cannot be larceny. If it is lost--> it is larceny
1. The finder must know or have reason to believe she can find out the identity of the owner; AND
2. The finder must, at the moment she takes possession of the lost property, have the necessary INTENT for larceny
26
How may a person establish ownership of lost property without committing larceny?
If the finder takes custody of the lost property without the intent to steal, but later formulates this intent, she has not committed larceny OR embezzlement because no trust relationship was created between the finder and the owner.
27
What are the larceny requirements for misdelivered property?
One to whom property is delivered to by mistake, may by accepting the property, commit larceny of it.
1. The recipient, at the time of the misdelivery REALIZE THE MISTAKE that is being made; AND
2. The recipient must, at the time she accepts the delivery, have the INTENT required for larceny.
28
What are the container situations?
1. Whether Defendant already has possession when she appropriates the item-->if yes, then no larceny because she is in lawful possession
2. May depend on whether parties intended to transfer container-->box container was mailed in, is the overall container and once in the possession of the wrong recipient, if they do not mean to keep the mailing container but do not know where to send it so it is like a lost item, larceny is not committed by keeping what is inside the mailing container.
3. "Continuing Trespass Situations"-->A trespassory taking of the property without the intent required for larceny is not larceny UNLESS the defendant takes the property with a wrongful state of mind and then while still in this state of mind, decides to steal the property. This concept is called "continuing."
29
Embezzlement Elements
1. Fraudulent
2. Conversion
3. Of Property
4. Of another
5. By a person in lawful possession of that property
30
How is Embezzlement different from Larceny on the state of possession?
Short answer-->1.The state of possession at the time of the taking. In Larceny, the misappropriation of property occurs at the time the defendant gains wrongful possession and in embezzlement the misapprop. happen when D is in lawful possession.
31
How is Embezzlement different from Larceny on the manner of misappropriation?
Embezzlement requires intentional conversion and larceny requires caption and asportation
32
What is conversion in embezzlement?
Requires only that the defendant deal with the property in a manner inconsistent with the trust arrangement pursuant to which he holds it. No movement is required. The conversion need not result in direct personal gain to the defendant
33
What is the property rule in embezzlement? And the new general trend?
Often worded "property that may be subject to larceny" which means NOT Real Property and Services
Some expansive statutes hold the embezzlement statute to cover situations in which a person fraudulently transfers the title of another person's house to be embezzlement.
34
"Of another" Requirement for Embezzlement
Cannot embezzle your own property. Must be the property of another.
35
Intent requirement for embezzlement?
Must intend to defraud for a conversion to become embezzlement. Same as larceny's intent to deprive
36
What is the intent to restore?
If D intended to restore the EXACT property taken, it is not embezzlement. But if he intended to restore similar or substantially identical, it IS embezzlement. EVEN if this is MONEY.
37
What is a claim of right?
Embezzlement is not committed if the conversion is pursuant to situations where D honestly thinks they are entitled to reclaim a debt
38
What is the necessity for demand for return?
If it is clear that there has been a conversion of the property, the victim need not make a demand that it be returned. If there is doubt, a demand and subsequent refusal may be required
39
Limitation to property entrusted
Some states do not allow for embezzlement in situations where a person finds lost property and while in lawful possession of it, fraudulently converts it.
40
Is a contract viewed subjectively or objectively?
Objective-->apparent Intention that he manifested to others
41
Three Questions to consider for OFFER
1. Was there an expression of a promise, undertaking, or commitment to enter into a contract?
2. Were there certainty and definiteness in the essential terms?
3. Was there communication of the above to the offeree?
42
What must an offer create?
A reasonable expectation
43
For a promise, undertaking, or commitment was MUST there be?
The INTENT to enter into a contract
44
The criteria to determine whether a communication is an offer include:
1. Language
2. Surrounding Circumstances
3. Prior practice and relationship between the parties
4. Method of communication
5. Industry Custom
45
Two types of communication that qualify as an offer under the method of communication are:
1. Use of broad communications media-->solicitation as an offer
2. Advertisements-->USUALLY construed as invitations for offers-->not an offer itself
46
What is required of the definite and certain terms?
The court first looks to whether or not the contract is "capable of being performed" Typical factors considered are:
a) The identity of the offeree
b) The subject matter
c) the price to be paid
d) Objective standard is used by the courts to fill in the gaps
47
What is required of the identification of the offeree for the offer to be valid
To be considered an offer, a statement must sufficiently identify the offeree or a class to which she belongs to justify the inference that the offeror intended to create a power of acceptance
48
How is a power of acceptance created by the specific identification of the offeree?
A single person or class of persons that may be identifiable at the time the offer becomes valid. Example: First come first serve does not identify an offeree and therefore is not an offer by which performance is deemed acceptance whereas a reward for turning in a fugitive is initially made to an unidentifiable person but this person will be identifiable at the time the reward is due for turning in the fugitive.
49
In definiteness of subject matter, when can a court enforce a promise?
ONLY if it can tell with reasonable accuracy what the promise is
50
Requirements for real estate transactions?
An offer involving realty must identify the land AND the price terms. Land must be described with particularity
51
Requirement for a sale of goods?
The quantity being offered must be certain or capable of being made certain
52
"Requirements and OUTPUT contracts"
In a requirements contract a buyer promises to buy from a certain seller all of the goods the buyer requires, and the seller agrees to sell that amount to the buyer. In an OUTPUT contract a seller promises to sell a certain buyer all of the goods the seller produces, and the buyer agrees to buy that amount from the seller. Although no specific quantity is mentioned the offers are sufficiently definite because the quantity is capable of being made certain by reference to objective-->buyers actual requirements
53
Good faith requirement: Unreasonably disproportionate
Assumed parties will act in good faith, hence there may not be a tender or demand for a quantity unreasonably disproportionate to:
1. Any stated estimate, or in the absence of a stated estimate
2. Any normal or otherwise comparable prior output requirements
54
New Business Enforcement Requirement
Some courts have refused to enforce output agreements with new businesses because they have no basis for making the estimation and therefore the promise is illusory. This may be defended with a good faith showing the figures were approximately reasonable and foreseeable
55
Reasonable Range of Choices
An offer allowing a person to specify an item within a reasonable range of choices may be sufficiently definite to result in a contract if accepted.
56
Employment and Other Service Industry Requirements for Contracts
Employment contract must specify a duration of time or is regarded as an at-will set up and other services must include the nature of the work in the contract to be valid and enforceable
57
Missing Terms in Contracts
One or more terms being left out of or open in a contract does not prevent the formation of a contract if it appears the parties intended to make a contract and there is a reasonably certain basis for giving a remedy. Certain JDX and Article 2 hold that the court can supply reasonable terms for those that are missing.
58
Price in a contract
The absence of price does not negate the contract EXCEPT in contracts for real property. Court will generally say the normal price or the price for the same service or good in the area.
59
Article 2 Gap Filler
Under Article 2, the price will be a reasonable price at the time of delivery if:
a) Nothing is said as to price
b) The price is left to be agreed to by the parties and they fail to agree; OR
c) The price is to be fixed by a third party and is not set
60
Price Fixed by Party under Article 2--lack of good faith
If the parties agree in the contract that one of the two parties will fix the price and later the price is not fixed reasonably and in good faith then the non fixing party may either cancel the contract or fix a reasonable price herself.
61
TIME Requirement under Article 2
If an agreement does not specify the time, the law implies that it is to be performed within a reasonable time
62
Distinguishing Vague Terms
When parties include overly broad terms, an intent is formed that cannot be determined. Too difficult to enforce.
63
Vagueness that can be cured
Part Performance may clear up the vagueness as it illustrates the intent of the parties.
64
Uncertainty can be cured by
Acceptance. The offer becomes definite when the party has chosen between the alternatives offered in the contract.
65
Focus on the Contract
The contract itself must be definite and clear, the offer may be vague in which case you look to the contract for clarification on the intent behind the offer
66
Terms to be Agreed on Later
Sometimes a term is written to be agreed upon at a later date. If the term is a material term, then the offer is too uncertain and will not be enforced. The court cannot sub in a reasonable time because a time is already written in. However Article 2 allows for a price to be subbed in when there is not one and this is how the contract may be formed if the parties so intend
67
Communication to the Offeree
To have the power to accept, the offeree must have knowledge of the offer. Therefore the proposal must be communicated to her.
68
Revocation
A retraction of an offer by the offeror. A revocation terminates the offeree's power of acceptance if it is communicated BEFORE she accepts.
69
Revocation by direct communication
This terminates the offer when communicated directly to the offeree.
70
Revocation by Publication
Offers made by publication may be terminated by publication of revocation through comparable means. Example: offer published in the New York Times must be revoked in the New York Times
71
Revocation by Indirect Communication
The offer may be effectively terminated if the offeree indirectly receives:
a) Correct Information
b) From a reliable source
c) Of acts of the offeror that would indicate to a reasonable person that the offeror no longer wishes to make the offer
72
Revocation Effective when Received
A revocation is generally effective when received by the offeree. Where revocation is by publication, it is effective when published
73
When a communication is received
Under common law communication is considered received when it is dropped in your mailbox or signed for by an authorized third party. The communication NEED NOT BE READ by the recipient to become effective. Under the UCC a person receives notice when:
a) It comes to his attention
b) it is delivered at a place of business through which the contract was made or another location held out by the person as the place for receipt of such communications.
74
Limitations on Offeror's Power to Revoke: OPTIONS
An option is a distinct contract in which the offeree gives consideration for a promise by the offeror not to revoke an outstanding offer. Example: Offeree pays $1000 to keep the option open for 90 days on the purchase of property
75
Limitations on Offeror's Power to Revoke: Timely Acceptance Under Option Contract
An offer must be accepted within the time specified or if none is specified then within a reasonable time.
76
Merchant's Firm Offer Under Article 2
Under article two there are circumstances in which a promise to keep an offer open is enforceable even if no consideration has been paid:
a) If a merchant
b) offers to buy or sell goods in a signed writing AND
c) The writing gives assurances that it will be held open ( will be open for 10 days..)
d) Not revocable for lack of consideration during that time. Must be a reasonable time and may not exceed 3 months.
77
Detrimental Reliance
Where the offeror could reasonably expect that the offeree would rely to her detriment on the offer, and the offeree does so rely, the offer will be held irrevocable as an option contract for a reasonable length of time.
78
Performance as acceptance in a unilateral contract
An offer for a true unilateral contract becomes irrevocable once performance has begun. Note that the unilateral contract will not be formed until the act is complete. However, once the offeree begins to perform, she is given a reasonable time to complete performance, during which time the offer is irrevocable.
OFFEREE IS NOT BOUND TO COMPLETE THE PERFORMANCE AND MAY WITHDRAW AT ANY TIME PRIOR TO COMPLETION OF PERFORMANCE
79
Preparations to Perform
The rules limiting the offeror's power to revoke an offer for a unilateral contract apply only if the offeree has embarked on the performance. They do NOT apply when the offeree is only preparing to perform. SUBSTANTIAL PREP MAY CONSTITUTE DETRIMENTAL RELIANCE.
80
Offeror Refuses to Accept Performance
Offeror is bound to the contract if their cooperation is necessary for performance
81
Bilateral Acceptance by Performance
If the offer is to be considered accepted when performance starts then starting performance constitutes an acceptance of the offer AND binds both parties to the contract. Failure to finish performance or failure to pay for performance constitutes breach of contract.
82
Express Rejection by Termination of Offeree
An express rejection is a statement by the offer that she does not intend to accept the offer. Such a rejection will terminate the offer.
83
Counteroffer as Rejection
A counteroffer is an offer made by the offeree to the offeror that contains the same subject matter as the original offer but differs in its terms. A counteroffer serves as a rejection of the original offer as well as a new offer. This usually happens in two situations:
i) Counteroffer combined with express rejection "not at that price but I'll take it at $200."
ii) Acceptance conditional upon additional terms: "I'll take it at that price, but only if it is also equipped with air conditioning
84
Distinguish--Mere Inquiry
An inquiry will not terminate the offer when it is consistent with the idea that the offer is still keeping the original proposal under consideration. The test is whether a reasonable person would believe that the original offer had been rejected.
85
Rejection effective when received
A rejection offer is accepted when received by the offeror
86
Revival of Offer
If an offer is rejected, the offeror may restate the same offer and create a new power of acceptance. Some courts refer to this as the revival of the original offer. It is more precise to suggest that a new offer, although the same as the original offer, has been made.
87
Rejection of the Option
Because an option is a contract to keep an offer open, a rejection of or a counteroffer to an option does not constitute a termination of the offer. The offeree is still free to accept the original offer within the option period unless the offeror has detrimentally relied on the offeree's rejection.
88
Lapse of Time is Rejection
The offeree must accept the offer within the period specified or, if no time period is specified, within a reasonable time. Otherwise the contract is terminable
89
When Offer is Received by Offeree
The time to accept whether it be 90 days or 3 days, starts when the offeree receives the offer.
90
Termination by death or insanity of parties
Death or insanity terminates a contract. It is NOT necessary that the death or insanity be communicated to the other party.
91
Termination by Destruction of Subject Matter
Contract is terminated upon destruction of the subject matter of the contract
92
Supervening Legal Prohibition
If the contract becomes illegal it is terminated
93
Who May Accept?
Generally, only the person to whom the offer is addressed. May be just one person, the general public, or a special class of persons to which a single member may accept
94
Assigning Power of Acceptance
Cannot be done. Cannot assign a power of acceptance
95
Exception to assigning power of a contract
Option contracts allow for an assignment of power of acceptance
96
Offeree Must Know the Offer
The offeree must know of the offer in order to accept this is true for both bilateral and unilateral contracts
97
Unilateral Contract Acceptance
May be accepted ONLY by performance. NOT accepted until performance is completed and no notice to the offeror prior to performance is required
98
Notice Following Performance in Unilateral Contract
Must notify offeror of completed performance within a reasonable time upon completion. If not informed soon enough then offeror's duties to uphold the contract are discharged. HOWEVER No notice is required for completed performance WHEN:
i) Offeror waived notice
ii) The performance would normally come to the offeror's attention within a reasonable time
99
Unilateral Acceptance Under Article 2
Under article 2 in a Unilateral contract notice must be done at the beginning of the performance to be valid. Otherwise offeror may regard the performance as lapsed before acceptance
100
Acceptance for Bilateral Contracts
Must be communicated to the offeror
101
Waiver Exception to Acceptance of Bilateral Contract
Offer must provide that the acceptance need not be communicated-->Still valid
102
Silence as Acceptance in Bilateral
Taking the offered benefits constitutes acceptance and obligations under the contract
103
Silence Exception for Offered Services
When the recipient of the services knows or has reason to know that the services rendered have the expectation of compensation and by a word could prevent the mistake, he may be held to have accepted the offer if he fails to speak
104
Methods of Acceptance
1. An act--as required by offeror
2. Under article 2 offers to buy goods or for current or prompt shipment are accepted by a promise to ship or current or prompt shipment
3. Clarifying the terms but not changing them
4. Grumbling Acceptance
105
Unequivocality of Acceptance
The terms of the agreement must be mirror images of each other. Additional terms or conditions make the response a rejection and a counteroffer
106
Shipment of Nonconforming Goods
Shipment of nonconforming goods is considered acceptance by the shipment and a breach because of the nonconforming goods.
107
Mirror Image Under Article 2
Article 2 provides that the proposal of additional or different terms by the offeree in a definite and timely acceptance does not constitute rejection and a counteroffer, but is EFFECTIVE AS ACCEPTANCE unless there is an express condition in the acceptance
108
Contracts involving Nonmerchants
If any party to the contract is not a merchant the additional or different terms are considered to be mere proposals to modify the contract that do not become apart of the contract unless offeror agrees
109
Contracts Between Merchants
If both parties to the contract are merchants, additional terms in the acceptance will be included in the contract unless:
i) they MATERIALLY ALTER the original terms of the offer--risk or remedies available
ii) The offer EXPRESSLY LIMITS ACCEPTANCE to the new terms of the offer OR
iii) The offeror has already objected or objects within a reasonable time
110
Knockout Rule
States that conflicting terms in the offer and acceptance are knocked out of the contract because each party is assumed to object to the inclusion of such terms in the contract. Gaps left by knocked-out terms are filled by the UCC. Ex. When the date of delivery differs from the offer to the acceptance--> UCC replaces that with "in a reasonable time"
111
Merchant's Confirmatory Memo
A merchant's memo confirming an oral agreement that contains different or additional terms is also subject to the battle of forms provision
112
What must an offeror do to effect conditional acceptance?
Expressly assent or agree to the new terms provided in the counteroffer in order to make the contract valid
113
Nonformation of Contracts
i) Mirror image rule has not been satisfied
2) In a contract for the sale of goods, the original offeror's form contains a clause objecting in advance to any new or inconsistent term and the offeree sends a response with a new or different terms. BUT IF PARTIES CONTINUE TO PERFORM AS IF THERE WAS A CONTRACT, THERE MAY BE A CONTRACT
114
Mailbox Rule
Acceptance by mail or similar means creates a contract at the MOMENT OF DISPATCH, provided the mail is properly addressed and stamped UNLESS:
a) The offer stipulates that acceptance is not effective until received
b) An option contract is involved (an acceptance under an option contract is effective only upon receipt)
IF THE OFFEREE DISPATCHES ACCEPTANCE BEFORE HE RECEIVES THE REVOCATION, A CONTRACT IS FORMED. REVOCATION NOT SATISFIED UNTIL DELIVERY
115
Offeree sends rejection and then acceptance does mailbox rule apply?
NO. Whichever one is received first applies.
116
Offeree sends Acceptance and then revocation, does mailbox rule apply?
YES. If the offeree sends the acceptance first, the mailbox rule applies. A contract is created upon dispatch of the acceptance. HOWEVER if the offeror receives the rejection first and changed his position in reliance on it the offeree will be estopped from enforcing the contract
117
Acceptance by unauthorized means
An acceptance transmitted by unauthorized means or improperly transmitted by authorized means may still be effective if it is actually received by the offeror while the offer is still in existence
118
Auction Contracts
1. In a sale by auction, if goods are put up in lots, each lot is the subject of a separate sale
2. The sale is complete when the auctioneer so announces by the fall of the hammer
3. An auction with reserve means the auctioneer may withdraw the goods at any time until he announces completion of the sale
4. Except at a forced sale, if the auctioneer knowingly receives a bid on the seller's behalf, or the seller makes or procures such a bid, the winning bidder may at his option avoid the sale or take the goods at the price of the last good faith bid prior to the completion of the sale
119
Consideration
A contract is only enforceable with the presence of valuable consideration on both sides
120
Elements of Consideration
1. There must be a bargained for exchange between the parties
2. That which is bargained for must be considered of legal value or must constitute a benefit to the promisor
3. The detriment element is emphasized in determining whether an exchange contains legal value
121
Bargained-For Exchange
This element of consideration requires that the promise induce the detriment AND the detriment induce the promise. Contract is invalid without this
122
Gift as exception to bargained for exchange
If either parties intended to make a gift he was not bargaining for consideration and this requirement will not be met
123
Act or Forbearance by Promisee
Must be a benefit to promisor. It is not enough that the promisee incurs a detriment; the detriment must be the PRICE of the exchange and not merely fulfillment of certain conditions for making the gift. The test is whether there is a benefit to the promisor. Must be a benefit or it is a gift.
