personal property Flashcards
A bailment is defined as
a person’s (the bailor’s) delivery of her goods to another person (the bailee) to hold for a period of time.
For a bailment to occur, the bailee must
(i) physically possess the property with the intent to exercise control over it,
(ii) consent to the bailment (mere custody of the property is insufficient), and
(iii) be aware that the article exists.
The duties of the bailee vary based on
the reason for the bailment.
When a bailor receives the sole benefit from the bailment, the bailee has
1) lesser duty to care for the property
2) and is liable only if he has been grossly negligent.
In a bailment for mutual benefit, the bailee must
take reasonable care of the bailed property.
If the bailed goods have been damaged due to the actions of the bailee, the bailor has the right to
bring a tort or contract action for breach of bailment.
A bailment requires that the bailee
physically possess the property with the intent to exercise control over it, consent to the bailment, and be aware that the property exists.
a company can can be a bailee through
its agents
A bailee may limit its liability as long as
the bailor knows or should know of the limitation and expressly consents to it.
Most courts hold that a claim check is
not a contract between the parties.
any limitation of liability placed on a claim check is not valid unless
it can be proven that the bailor knew or should have known of the limitation.
A bailment generally is
the transfer of possession from one person to another with a specific purpose.
In a bailment, the bailor
relinquishes possession to a bailee for that purpose.
Depending on the mutuality of benefit between the bailor and the bailee
the duty of care owed, and the standard for liability for damage to the bailor’s personal property will vary.
Where the bailment is solely for the benefit of the bailor
the bailee owes a duty of slight diligence, and will only be liable for damage to the property for gross negligence that results in loss/damage.
Where there is mutual benefit between the bailor and the bailee
the bailee owes an ordinary duty of care, and the bailee will be liable for negligent conduct.
Where the bailment is for the sole benefit of the bailee
the standard of care is one of extraordinary care, and the bailee will be liable for slight negligence
Most commercial bailment arrangements, where it’s a professional bailee are
presumptively construed as a mutually beneficial bailment
most courts hold that while a bailment for the sole benefit of the bailor, when the bailee is common carrier, innkeeper, or the like, the standard of care owed is one of
ordinary care
most courts view hospitals in similar light as
common carriers, and innkeepers with respect to personal property, and impose a higher duty of care.
With respect to bailments, complete waiver of liability are
against public policy and will be strictly construed by courts
professional bailee’s are not permitted to waive all liability for loss, unless
the waiver is expressed to the bailor, and the bailor consents to the waiver.
limitations on liability must be so apparent to the bailor that they either
notice the limitation or should have noticed it because of the size and placement of the limitation, so that no reasonable person wouldn’t have noticed it.
professional bailee, a higher standard of care applies when
the bailee exceeds the scope of the bailment as expressed in the terms of the bailment.
if a professional bailee exceeds the scope of the bailment as expressed in the terms of the bailment,
bailee will be strictly liable for all damage when the scope is exceeded.
Personal property is abandoned when
the owner has the full intention to leave the property and give up title and possession to it.
An owner who abandons his property loses
title to that property.
Unowned property is “captured” and becomes a possession when
an individual manifests the intent to own by exercising actual or constructive dominion and control.
Owners who unintentionally lose or misplace their property
do not lose title to their property.
The question of who claims possession against all the world except the true owner may depend on
where the property is found, by whom, and whether a reasonable person would believe that the property was truly lost or merely mislaid.
The finder of lost property is entitled to keep it, unless
the finder was trespassing or the true owner is identified.
When items are found in a highly private location where the public is not invited, then
the owner of that location will retain possessory rights over the find.
Misplaced property is property that
reasonably seems to have been intentionally placed in a particular location, but then appears to have been forgotten.
The finder of misplaced property
does not obtain possession of the property, and the finder’s right to the misplaced property falls after that of the true owner and the owner of the property on which the misplaced item was found.
The finder of misplaced property’s claim to possession is inferior to
that of the original owner and the owner of the property on which the misplaced item was found.
The finder of lost property is only entitled to keep it until
the true owner is identified.
A person taking an instrument, other than a person having rights of a holder in due course, is
subject to a claim of a property or possessory right in the instrument or its proceeds
a person wrongly deprived of personal property may file an action for
detinue, trespass, trover
detinue is an action taken to recover
the actual property or chattel
in order to succeed in a a claim for detinue, the plaintiff must establish
1) plaintiff has a property right recognized by the law in the property
2) plaintiff has an immediate right to possession
3) property is capable of identification
4) property has some value
5) defendant has, or had prior to suit, possession of property
theories to base a claim for damages due to lost personal property against a profesional bailee
1) breach of contract
2) negligence
3) conversion
4) strict liability
breach of contract by bailee where
1) bailor and bailee entered into an enforceable contract for such bailment purpose
2) bailee breached the contract by failing to safeguard bailor’s belongings
3) causing bailor to suffer damages
claim of conversion against a bailee requires
using the property in a way that is not described in the bailment constitutes conversion
conversion is
the unauthorized act over the property of another of such nature as inconsistent with the right of the owner
when conversion by the bailee takes place, a bailor can maintain an action based on trover to
recover the value of property or chattel in addition to damages for lack of possession
bailees are absolutely liable if they:
1) stray from the conditions of the bailment (use of goods for a different purpose than agreed-outside scope of bailment)
2) move the property from an agreed place of storage, or
3) fail to redeliver the goods in the condition in which they were bailed after expressly/impliedly agreeing to insure the goods and failing to do so
absolute liability of the bailee, for conversion, also applies to
non-delivery and mis-delivery- if the bailee delivers to the wrong party
general measure of damages whether in tort or contract is
compensatory damages
compensatory damages are calculated as
compensation to make the victim whole, as if she had not suffered the injury
under a conversion action, the plaintiff may recover damages in the amount of
the full value of the converted property at the time of the conversion
where a bailee unlawful sells the bailors property, and profits considerably above market value of the price of the goods, the bailor/plaintiff should be entitled to
the excess amount the bailee profited as it would be unjust to allow the converting party to be unjustly enriched.
A person who does not have title to goods cannot
pass good title
a person without title to goods can pass good title to a bona fide purchaser in these exceptions:
1) transfers of money and negotiable instruments;
2) where owner intended to transfer title to a wrongdoer, and bona fide purchaser received goods from wrongdoer
3) where bona fide purchaser has relied in good faith upon the true owners representations that the possessor is the owner or has authority to sell.
common law rule of treasure trove
1) where any gold or silver is found concealed, and the owner is unknown.
2) the treasure trove is deemed to belong to the finder as against everyone in the world except the true owner.
where a treasure trove is found under the modern view of constructive possession
the owner of the land or premises possess all that lies beneath the surface of the land
When the property is mislaid, the finder does not
acquire right to possess it
the owner of the property where the mislaid property is found (locus in qou) is entitled to
possess the mislaid property
In a bailment relationship, there is no transfer of
title to the bailee
The bailee possesses the property and is obligated to return or dispose of the property in accordance with
the terms of the bailment.
In order to determine if a bailment relationship exists, the bailee needs to
possess the property by having physical custody over it and an intent to exercise that control over the property.
Additionally, the bailee must
consent to possession, and must have knowledge of the property being in their possession.
finder of lost property is treated as a
1) bailee for the sole benefit of the owner of the lost goods,
2) can only be held liable for failing to exercise slight care.
A bailment exists when
the owner of personal property (bailor) delivers that property to another person (the bailee) to hold for a period of time.
if bailed property is completely destroyed, the measure of damages is
the fair market value of the bailed property at the time of the destruction.
In order for a bailment to exist with respect to personal property, the bailee must be aware that
the personal property exists.
a bailee may not be liable with respect to
concealed property within property over which the bailee has agreed to serve as bailee, such as a cell phone in the glove box of car
When a bailment is for the sole benefit of the bailor, the bailee is liable if he acts with
gross negligence.
When a bailment is for the mutual benefit of both the bailor and the bailee, the bailee is liable if
he fails to act with ordinary care.
The statute of limitations for bringing an action to recover personal property that has been adversely possessed is
five years
since the five-year period for bringing an adverse possession expired while the mother was still alive
she did not retain an enforceable property interest in the necklace that she could devise to her older daughter.
tacking is permitted in Virginia with respect to
adverse possession of personal property as well as real property.
Personal property is abandoned when
the owner of the property has the intent to abandon the property and manifests that intent.
Once personal property has been abandoned, a person acquires ownership rights in the property when they
take possession of the abandoned property by exercising dominion and control over it
When a person comes into possession of chattel and exercises physical control over it, a ___________ is created by operation of law.
bailment
a bailment created by operation of law is known as
a constructive or quasi-bailment
a constructive or quasi-bailment, differs from a true bailment in that
the chattel has not been delivered by or with the permission of its owner to the bailee.
Typically, the bailee is a gratuitous bailee because
the bailee is not compensated for serving as bailee.
A gratuitous bailee is required to act with
slight diligence
the gratuitous bailee is liable only if he acts with
gross negligence
Owners who unintentionally lose or misplace their property
do not lose title to the property.
The question of who claims possession against all the world except the true owner, however, may depend on
1) where the property is found,
2) by whom, and
3) whether a reasonable person would believe that the property was truly lost or merely mislaid.
Misplaced property is property that reasonably seems to have been
intentionally placed in a particular location, but then appears to have been forgotten.
Treasure troves include property that is
concealed and is anticipated to be recovered at a later time.
A treasure trove is usually
gold or silver that is found hidden and the owner is not known.
Regardless of whether the court determines the coins were lost, misplaced, or constitute a treasure trove
the owner of the location where the coins were found will have the right of title against the finder.
Today, most states apply the rules that are associated with ________ property to treasure troves.
lost property
Someone who finds lost property is entitled to keep it, unless
the finder was trespassing or the true owner is identified.
When items are found in a highly private location where the public is not invited- who will retain possessory right over the find?
the owner of that location
The finder of misplaced property does not obtain
possession of the property
finder’s right to the misplaced property falls after that of
the original owner and the owner of the property on which the misplaced item was found.
Tortious conversion generally cannot deny
a true owner title to his property
Someone who does not have good title cannot
transfer it to another.
a bona fide purchaser of the property who lacks notice of the conversion can acquire good title if:
(i) the property is money or a negotiable instrument;
(ii) the converter acquired title by fraud in the inducement; or
(iii) the true owner entrusted goods to a seller of goods of that kind and the purchaser is a buyer in the ordinary course of the seller’s business.
Someone who abandons his property
loses title to that property.
Personal property is abandoned when
the owner has the full intention to leave the property and give up title and possession to it.
Unowned property is
captured
when unowned property is captured, it becomes a possession when
an individual manifests the intent to own by exercising actual or constructive dominion and control.
Accession is the process of
adding value to property by the expenditure of labor or adding new materials.
Generally, the accession of materials to an owner’s goods, whether in the course of repairs or otherwise
transfers ownership of the materials accessed to the owner of the original goods on which the work was done.
In cases of a trespasser, the original owner
retains title.
The trespasser cannot bring an action for compensation against the owner, but the owner can seek damages for
conversion or detinue
In cases when the property has been completely changed or greatly increased in value by an innocent trespasser, however, the innocent trespasser may
claim title to the goods.
In cases when the property has been completely changed or greatly increased in value by an innocent trespasser, The original owner thus may not recoup the chattel, but can
sue for damages.
The finder of lost property is entitled to keep it, unless
the finder was trespassing or the true owner is identified.
The finder of misplaced property does not obtain possession of the property, and the finder’s right to the misplaced property falls after that of
the original owner and the owner of the property on which the misplaced item was found.
A quasi-bailee is someone who
has obtained possession of property against everyone but the true owner.
The quasi-bailee even has the right to
sue someone who may have wrongfully taken the property from him, as long as it is not the true owner.
A quasi-bailee has a duty to
locate the true owner if he might know or have a reasonable means of finding out the identity of the true owner.
If the quasi-bailee neglects to find the true owner, then he may be
brought up on criminal or civil charges.
the quasi-bailee must keep the goods with
due care and failure to do so will render her liable in negligence.
If there has been confusion by one party about who owned either the base goods or the goods used for repair, and if the newly added chattel cannot be detached from the property, then there is a question as to
who owns the improved chattel.
The decision is determined by whether the trespasser (i.e., the party who was wrong about original ownership) was acting in
good faith
There is no way a willful trespasser can gain rights to title by
accession.
where theres an accession to personal property by a willful trespasser, The original owner is entitled to keep the property in its
1) enhanced state regardless of how much added value the accession may have created
2) original owner can also sue the trespasser for damages for conversion or detinue if the value of the goods to the owner is impaired by the accession.
an innocent trespasser can obtain title to an accessed chattel, but must
compensate the original owner for damages.
an innocent trespasser who completely transforms and increased the value of the chattel, would be entitled to title and possession of the chattel; but would have to
pay the true owner the value of the chattel (before transformation and increase in value) as damages for conversion.
Misplaced property is property that
reasonably seems to have been intentionally placed in a particular location, but then appears to have been forgotten.
The finder of misplaced property
does not obtain possession of the property
The finder’s right to the misplaced property falls after that of
1) the original owner and
2) the owner of the property on which the misplaced item was found.
misplaced property is
property that reasonably seems to have been intentionally placed in a particular location, but then appears to have been forgotten
For misplaced property, the owner of the property on which the misplaced item is found is entitled to it when
its cant be returned to the rightful owner
generally, an employee who finds property while engaged in employment duties is
not entitled to keep the property
when an employee finds property while engaged in employment duties, who has rights above immediately above the employee to the property?
the employer
For personal property to be adversely possessed, the possession must be
(i) actual, (ii) open and notorious, (iii) hostile and adverse (without consent), and (iv) exclusive and continuous throughout the entire statutory period.
While the library acquired possession of the books with the collector’s consent, this possession became hostile when
the librarian refused the collector’s demand to return the books
In Virginia, the maximum statute of limitations period for bringing a detinue action is
5 years
while the period for adverse possession of real property is fifteen years, the maximum period for a detinue action to regain possession of personal property is
5 years
while there is a recognized prohibition on the adverse possession of real property owned by a government, that prohibition does not apply to the adverse possession of
privately owned property held by a public institution.
A lease of real property for any period of time is considered
personal property
Under the doctrine of emblements, a former tenant may
enter land to cultivate and harvest crops that had been planted or were maturing at the time of the termination of the tenant’s lease, provided (i) the tenancy was for an undetermined period of time or was a life estate, and (ii) the tenancy was terminated under conditions other than the tenant’s fault.
The general rule is that the finder of lost property is
entitled to possession of the lost property against anyone except the true owner of the property
An employee who finds lost property while engaged in employment duties is
not entitled to keep the property; rather, his employer is entitled to possession of the property
When there has been a confusion of goods making it impossible to ascertain the share of each contributor in the confused goods, each contributor is treated has having
an equal share of the goods if the confusion was innocent.
If the confusion was wrongfully caused, the contributor who wrongfully caused the confusion has the burden of establishing
her share of the goods
if the contributor who wrongfully caused the confusion cant establish her share in the goods,
then the portion of the goods that cannot be allocated is divided equally among the innocent contributors.
A bailee who delivers the property that is the subject to the bailment to the wrong party is
strictly liable for conversion
when a bailee permits a person other than the bailor to take the bailed property, the bailee is
strictly liable
even if the seller was a gratuitous bailee, the seller as a bailee is nevertheless
strictly liable to the buyer in a conversion action for giving the kit to the imposter.
A bailment is created when
a chattel is lawfully delivered by or with the permission of its owner (the bailor) to a person (the bailee) who accepts possession of the chattel.
When the bailment is solely for the benefit of the bailee (e.g., a gratuitous loan), the bailee is
a gratuitous bailee
The holder of a gratuitous bailment is required to act with
great diligence, and will be liable for even slight negligence
when a bailment is gratuitous, the bailor must
inform the bailee of defects in the goods of which the bailor is aware. However, there is no duty to disclose defects the bailor should have known about but did not.
even a gratuitous bailee, is generally not
an insurer of the chattel that is the object to the bailment unless the bailee assumes that role
A gift is
a voluntary transfer of property without payment or consideration
Promises to make gifts in the future are
not binding
the gift occurs when
the actual transaction takes place
Inter vivos gifts (while the donor lives) require
(i) the donor’s present intent and mental capacity to make the gift,
(ii) delivery, and
(iii) acceptance.
The delivery requirement exists to provide
clear manifestation of the donor’s intention to immediately divest herself of title and possession
The decisive factor in determining whether a gift has been adequately delivered is whether
the putative donor has the power to reclaim the property
If a donor:
1)clearly expresses written intent to give a gift,
2) clearly describes the subject being gifted,
3) signs the document, and
4) passes the writing out of her control
5) with the intent that the deed of gift reach the grantee
that is a sufficient method of delivery.
Acceptance of a gift is
presumed
Refusal of a gift must be by
an express affirmative act.
When stocks are transferred with donative intent, a valid gift has been completed even if
the donor continues to receive dividends until the time of her death.
equal access to the safe deposit box does not equate with
equal title to its contents
After obtaining ownership, Staci could not transfer title back to Mary without
all three elements of an inter vivos gift—intent, delivery, and acceptance
