Midterm-Larceny Flashcards
What are the elements of Larceny
- 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.
Larceny may only be committed by…
The acquisition of PERSONAL PROPERTY capable of being possessed and of some value
What is law regarding larceny realty and severed material?
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.
Are Services Larceny?
NO. Obtaining services wrongfully is not larceny, traditionally.
What is an exception to the intangible rule?
Gas and Electricity ARE considered personal property that may be stolen.
What have modern statutes done to larceny and written documents/instruments?
Expanded larceny to include written documents embodying intangible rights. Generally written documents were regarded as MERGED with the matter they represented
What is required to satisfy the “of another” element?
All that is necessary is that the property be taken from someone who has a possessory interest superior to the defendant
What is the requirement regarding the taking be from one with “possession”
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.
Custody vs. Possession
Those in possession have a higher level of authority to deal with the property than does custody
When does an employee have custody and when does he have possession?
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
What is “breaking the bulk?”
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
What does a bailee have?
Generally, Possession.
Can an owner be guilty of larceny for taking her own property?
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
What is rule on stolen property
Stolen property can be the subject of larceny. Second thief steals it from the first thief
What is the rule on joint property
At common law, larceny could not be committed by the taking of jointly held property by one of the joint owners
Is destruction or movement of property considered larceny?
NO
Is obtaining control by way of an innocent agent considered larceny?
YES
What is required for asportation?
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.
What type of movement satisfies the asportation element of larceny?
Any movement–even slight movement
What does trespassory element require?
That the property the defendant is taking is being taken WITHOUT THE CONSENT of the owner
Define Larceny By Trick
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
What is sufficient intent for larceny?
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.
What is insufficient intent for larceny?
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.”
What are the possible sufficient mental states for larceny?
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.
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
- The finder must know or have reason to believe she can find out the identity of the owner; AND
- The finder must, at the moment she takes possession of the lost property, have the necessary INTENT for larceny
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.
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.
- The recipient, at the time of the misdelivery REALIZE THE MISTAKE that is being made; AND
- The recipient must, at the time she accepts the delivery, have the INTENT required for larceny.
What are the container situations?
- Whether Defendant already has possession when she appropriates the item–>if yes, then no larceny because she is in lawful possession
- 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.
- “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.”
Embezzlement Elements
- Fraudulent
- Conversion
- Of Property
- Of another
- By a person in lawful possession of that property
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.
How is Embezzlement different from Larceny on the manner of misappropriation?
Embezzlement requires intentional conversion and larceny requires caption and asportation
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
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.
“Of another” Requirement for Embezzlement
Cannot embezzle your own property. Must be the property of another.
Intent requirement for embezzlement?
Must intend to defraud for a conversion to become embezzlement. Same as larceny’s intent to deprive
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.
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
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
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.
Is a contract viewed subjectively or objectively?
Objective–>apparent Intention that he manifested to others
Three Questions to consider for OFFER
- Was there an expression of a promise, undertaking, or commitment to enter into a contract?
- Were there certainty and definiteness in the essential terms?
- Was there communication of the above to the offeree?
What must an offer create?
A reasonable expectation
For a promise, undertaking, or commitment was MUST there be?
The INTENT to enter into a contract
The criteria to determine whether a communication is an offer include:
- Language
- Surrounding Circumstances
- Prior practice and relationship between the parties
- Method of communication
- Industry Custom
Two types of communication that qualify as an offer under the method of communication are:
- Use of broad communications media–>solicitation as an offer
- Advertisements–>USUALLY construed as invitations for offers–>not an offer itself
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
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
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.
In definiteness of subject matter, when can a court enforce a promise?
ONLY if it can tell with reasonable accuracy what the promise is