Personal Property

Question 1

Mislaid property

Answer 1

Property is mislaid when the owner intentionally places an item in a particular spot and subsequently forgets it.

(silver medal put down on seat in a taxi)

Question 2

Lost Property

Answer 2

Property is lost when the owner accidentally and unknowingly loses possession of the item

(wallet falls out of back pocket)

Question 3

Stolen Property (effect on subsequent possessors)

Answer 3

A thief of an item, nor anyone taking title from a thief has title.

Their title is void. It does not matter that subsequent transferees were acting in good faith.

Question 4

Claims to lost/mislaid property where found

Answer 4

The owner of the locus in quo has a superior claim over the finder of mislaid property.

Locus in Quo - owner of the place where mislaid property is found.

Question 5

Employer/Employee rights to mislaid property

Answer 5

If an employee finds an item in the course of their employment, the employer has the right to possess the item.

Employer has superior claim to possession.

Question 6

Inter Vivos Gift Elements

Answer 6

Inter Vivos Gift occurs where there is:
1. Present donative intent,
2. Delivery to the donee, and
3. Acceptance by the donee

Question 7

Once inter vivos gift is valid, absolute title to property …

Answer 7

immediately passes to the donee and the gift is no longer part of the decedent’s estate.

Question 8

Intent to pass title at death ______ establish the intent required for an inter vivos gift.

Answer 8

An intent to pass title at death does not establish the intent required for an inter vivos gift.

A gift intended to take effect at death can only be accomplished by will.

Question 9

Gift Causa Mortis

Answer 9

A gift of personal property given by the donor who is dying.

Elements: Same as inter vivos gift, PLUS gift causa mortis must be made under the clear apprehension of death.

Question 10

Inter Vivos Trust can be created by either

Answer 10

A written instrument or an oral statement.

Question 11

Oral Inter Vivos trust requires

Answer 11

Requires a present transfer of trust property or the intent to create a trust

Question 12

Proof of an inter vivos trust must be established by

Answer 12

clear and convincing evidence

Question 13

Bona Fide Purchaser (generally)

Answer 13

A buyer cannot ordinarily acquire better title than his sellers.

Question 14

BFP who lacks notice of a conversion can acquire good title if:

Answer 14

1. The property is money or a negotiable instrument,
2. The converter acquired title by fraud in the inducement (i.e. true owner intended to transfer title but was mislead as to their identity), or
3. The true owner entrusted goods to a seller of goofs of that kind and the purchaser is a BYOCB.

Question 15

True owner of personal property will be able to recover stolen property even after ..

Answer 15

even after it has been sold off to other persons.

Question 16

Where seller breached an implied warranty that title was good

Answer 16

The innocent buyer will not be liable to the seller nor any of the seller’s creditors that may have a security interest in the seller’s inventory.

Question 17

Innocent Buyer’s methods of recovery

Answer 17

The total amount paid to the seller and ANY payments made to the seller’s creditor on a note to the seller adn the creditor is a lien creditor, PLUS
Incidental and consequential damages

Question 18

Buyer in the Ordinary Court (BIOC)

Answer 18

A person who buys in good faith and without knowledge that the sale to him is in violation of the ownership rights of a third party in the goods.

Question 19

BIOC - UCC Exception

Answer 19

Entrusting goods to a merchant who deals in the goods of the kind sold, givs the merchant power to transfer all rights of the entrustor to a buyer in the ordinary course of business.

Question 20

Gifts of Personal Property left in a will

Answer 20

A will is construed in the light of the circumstances as they existed at its execution, but the will does not take effect until the death of the testator.

Question 21

Ademption

Answer 21

When a testator makes a specific bequest and the identified property is not part of the testator’s estate at her death, the gift is ADEEMED, and the beneficiary receives nothing.

Only in limited circumstances can other property be substituted for the adeemed property.

Question 22

Ademption by Extinction

Answer 22

Can occur by an intentional act of the testator including when an inter vivos gift of property is made to another.

Question 23

Specific Bequest (definition)

Answer 23

Disposes of an identified item of property owned by the testator.

Question 24

Third party intermediary is presumed ..

Answer 24

to be acting for the donee, unless facts show otherwise.

Question 25

Preferred conclusion for asset transfers (defense)

Answer 25

A gift to a descendant / family member in the completion of an inter vivos gift is the preferred conclusion

Question 26

Baliment

Answer 26

A mutually consensual relationship where bailor entrusts bailee with the possession of chattels.

To establish a bailment, P must prove:
1. She delivered the goods to bailee, and
2. The bailee accepted the goods.

Bailee must have physical control over the property AND the intent to exercise that control.

Question 27

2 Types of Bailments

Answer 27

Contractual bailment and Gratuitous bailment

Question 28

Contractual Bailment / Mutually beneficial Bailment

Answer 28

Bailee must exercise ordinary care and is liable for simple negligence.

Question 29

Gratuitous Bailment

Answer 29

Where bailee receives no benefit of the bargain.

They are obligated to exercise slight care and are only liable if grossly negligent.

Question 30

Acceptance of property for purposes of a bailment

Answer 30

To accept delivery of an item, the bailee must know of the object’s presence.

Question 31

Prima Facie Case of Bailments

Answer 31

In VA, P must prove delivery of the item and acceptance by the bailee. Must also show they did not exercise ordinary care.

Question 32

Misdelivery of Goods (bailments)

Answer 32

Bailee is strictly liable for the misdelivery of goods.

Bailee has an obligation to return goods to the bailor.

Question 33

Defenses to Breach of Bailment - express limitation of liability

Answer 33

To be an effective disclaimer or limitation of liability, bailor must know of, or should have known of, and assent to the contractual limitation.

Question 34

Breach of Contract for bailment

Answer 34

Where bailor and bailee enter into an enforceable k, a breach of the terms by failing to take care of the goods as promised will give rise to a claim where the bailor suffers compensable damages.

Ordinary care standard applies.

Question 35

Bailments Negligence Claim

Answer 35

Bailee for mutual benefit is obligated to exercise ordinary care in the possession of another’s chattels.
1. The acts must be the actual and proximate cause of the bailor’s loss.
2. Bailor must suffer compensable damages.

Question 36

Bailments - Conversion Claim

Answer 36

Where bailee sells the chattel of the bailor without permission or legal right, they are depriving the bailor of the entire value of her chattels and liable as a converter.

Question 37

Where bailee misdelivers goods of the bailor, an innocent mistake…

Answer 37

is irrelevant.

Question 38

Authority of a contract created by an agent

Answer 38

To bind a principal to a contract, the agent must act either with actual or apparent authority, or the principal must subsequently ratify the k.

Question 39

Actual Authority

Answer 39

May be express or implied; based on the principal’s communications with the agent and the agent’s reasonable belief that he is authorized.

Question 40

Apparent Authority

Answer 40

Where the third party reasonably believes, based on the manifestations of the principal, that the agent is authorized.

P holding Agent out as authorized to contract.

Employment → NOT ENOUGH

Question 41

Ratification

Answer 41

A subsequent affirmation of an unauthorized k.

To ratify, a principal must know the material terms of the k, or be aware of his lack of knowledge.

Question 42

Silence may constitute a ratification where ..

Answer 42

a person would be expected to speak

Question 43

No bailment relationship is formed where

Answer 43

the bailor is not aware of the duty to watch over an item (either by it being out of sight or not disclosed)

Question 44

Respondeat Superior Defense - Intentional Act by Employee

Answer 44

Where an employee’s actions constitute an intentional acct committed with no purpose to serve the employer’s interest → employer not liable

Question 45

Indemnification (employer/employee)

Answer 45

Where an employer is found liable for an employee’s torts under doctrine of respondeat superior, the employer has an indemnification claim against the tortfeasor employee.

Question 46

Damages for breach of contract, negligence or strict liability - Where the bailor paid in advance for the bailee to hold her goods would be defined as

Answer 46

the value of her possessions, PLUS the unused portion of her prepaid fee (benefit conferred on D)

Question 47

Damages for conversion (bailments)

Answer 47

Under a conversion theory, the recovery would be calculated as the fair market value of the chattels at the time and place of the conversion.

Bailor may also be able to recover the value as sold under the theory of unjust enrichment.