Personal Property Flashcards
Bundle of legal rights
- To exclude
- To possess
- To use or
- To transfer
Personal Property
everything but land and fixtures, including: IP and cultivated property
Found Property
Abandoned, lost, mislaid
Abandoned Analysis
- Unowned property
- When owner has relinquished all rights to property
- Ask:
1) IS the property abandoned? If yes
2) Has some acquired legal rights in the property
Rule - Property is abandoned when the owner has voluntarily given up possession with the intent to give up both title and control.
- Action + mental state
- Human tissue: Henrietta Lacks- Dr’s have fiduciary duty the tissue was abandoned but she still had rights
Has Someone Acquired Rights
- Title is acquired by actual or constructive dominion and control
- A finder acquires rights if they have possession with the intent to assert title and control.
- Intermediator: if abandoned property is held by an intermediary with no property interest, state may assume title through escheat- unclaimed funds in bank
Lost Property
- Lost Property: key factor is the place where it is found. The test is whether a reasonable person would judge that the owner had accidentally and involuntarily parted with possession of the property and does not know where to find it.
- Generally the finder wins
- Exceptions: to the finder winning over lost property
1) Trespasser: will not be allowed to secure the property over the landowner
2) Employer/Employee: the employer prevails if the employee finds it by an act directed by the employer
3) Highly Private Locus: in a place not open to the public, the landowner will win even if buried property- home and private office
Mislaid Property
- Mislaid: judging from the place found, it can reasonably be determined that it was intentionally placed there and thereafter forgotten.
- The landowner will prevail
Duty of Possessor - One who acquires property is a quasi bailee with a duty to find the true owner if known or reasonably discoverable
Intervivos Gift
Requirements:
- Donative intent
- *Valid delivery and
Valid acceptance
Donative Intent
- Intent is to pass title (ownership not physical) now, not in future
- Presumed if closely related- parent child or spouses
Delivery
- Actual physical delivery
- Already in Possession- as soon as donative intent- do not have to transfer back
- Symbolic of gift- donor transfers something in place of- usually large- car keys
- Constructive Delivery: impossible to deliver, proper where the donor surrenders as much control over the subject matter as they can
- Delivery by Written Instrument: bank account
- **Watch for:
1) Donor makes check or promissory note until cashed
2) Third party instrument: donor hands a donee a check or promissory note that’s made out to donor by a third party. Here, when the check of another is physically delivered, the delivery requirement is satisfied even if the donor has not endorsed the check or note to the donee.
3) Stock Certificate: Valid even if not signed
4) Agency: messenger delivers gift- third party delivery situation who does not deliver- depends on who’s agent is the middle person- if donee’s agent valid delivery, if donor’s agent: not valid until donee receives *If donee is minor the middle person is the donee’s but still not gift until minor receives
Acceptance
- Implied by silence
- Must refuse by affirmative act
Causa Mortis Gift
Special rules in addition to Intent, Acceptance, and delivery, trying to protect donors because it is given in contemplation of death, ask:
1) What kind of peril must the donor be contemplating to support a gift causa mortis? (In other words, what’s the danger they must be facing?)
2) How is a gift causa mortis revoked?
Nature of the Peril
- Grave Peril: Fair degree of certainty or likelihood of death likely to occur- like dying declaration
- Not mere abstract fear of death from some future cause
- Example: terminal illness in hospital, hit by car
Revocation
1) Donor can simply revoke by affirmative act
revocation by donor
2) Donee predeceases the donor or
revocation by law- happens without action
3) Donor recovers
Only valid if person dies, if they do not die it is automatically revoked except for realty in some jurisdictions
If donor dies from something else before action that caused the gift but that is not current law
Bailment
- Relationship created by the transfer of personal property for a reason
- Key questions:
1) Is the relationship a bailment
2) If it is a bailment, what is a liability of the bailee if the chattel is damaged, destroyed or missing
Bailment - Exists if the alleged bailee possesses the property, physical custody + an intent to exercise control and serve as a bailee
- Consent Required
- Knowledge of Presence
- Example: car check with diamond necklace in glove compartment- need intent to exercise control, coat- yes, necklace-did they know the necklace was in the pocket probably not
- Expected contents: bailment will be found for expected content- they will be liable for the spare tire and tire jack because that is an expected content of a car
Bailment: Special Situations
- Safe Deposit Boxes: bank is usually a bailment even though they do not know what is in there
- Parking Garages and Lots: if the car driver gave up the keys, it is a bailment, if you do not give up keys- no bailment
Bailment: Standard of Care
- Sole Benefit of Bailor: gross negligence: sent watch to friend to fix for free- gratuitous bailee
- Sole Benefit of Bailee: slight negligence: Jane borrows friend’s watch
- Mutual Benefit: ordinary care/negligence- Jack takes watch to store to fix
- Modern trend: merge and give ordinary care on all
Exceptions
Strict Liability is - Unauthorized use: bailee is held strictly liable
- Misdelivery: if bailee misdelivers even if someone uses a forged instrument, they have strict liability; unless vehicle in a parking lot with a claim check
Limitations - Exculpatory clauses: attempts by a bailee to limit liability for damage to the chattel, can limit liability only for ordinary liability
- Must have effective notice for any liability- not small print or odd place not seen
Bankruptcy - Bailed Items are not part of bankruptcy of bailee, still owned by bailor
Termination - Conduct that ends the bailment
Accession
- Someone takes the property of another, wrongfully or not, and makes the property more valuable
- What rights if any, does the person who made the chattel more valuable have
- Answer: based on Innocence
1) If wrongfully took- they have no rights
Can sue and get chattel back and get replevin
2) Innocent: may pay them for time and effort to prevent windfalls
Forced transfer of property by law, if very valuable they can keep, but must pay for value of the property in the original condition - Special Situation: entire nature of the chattel completely changed by the accession, the one doing the accession does not have to give the item back to the owner. Mistakenly took corn from other field and turned it into liquor, hops into beer, oranges into juice- will get value of corn in original condition
Wild Animals
- Dominion and control over the animal is considered possession
- Wild animals is not owned by landowner, whomever captures gets ownership- mere pursuit is not onwership
