Personal Property

Question 1

Difference between real and personal property

Answer 1

Real property: all land and everything attached to the land w/ the intent that it be a part of the land (fixtures)
Personal property: all property that is not real property

Question 2

What are the three categories of found property?

Answer 2

Abandoned property
Lost property
Mislaid property

Question 3

What is the test for abandoned property?

Answer 3

1) Is the property abandoned i.e. has the owner voluntarily given up possession w/ intent to give up title and control?
2) If yes to 1, has someone acquired rights in the property? A finder acquires rights in the abandoned property if the finder has possession w/ intent to assert title and control.

Question 4

Who are the two people who will be fighting over title to found property?

Answer 4

1) The finder who found the property
2) The person on whose land the chattel was found i.e. land owner or occupier.
* *True owner won’t be involved because they win.

Question 5

Lost v. mislaid property

Answer 5

Lost property: found property where owner took no voluntary affirmative act in placing the property where it is found i.e. parting w/ property was accidental and involuntary.
Mislaid property: found property where owner took some voluntary affirmative act in placing it down and leaves it behind.

Question 6

Who gets title to property turns on whether it has been lost or mislaid:

Answer 6

If mislaid, the owner or occupier of premises on which property is found prevails over the finder.
If lost, the finder wins and owner or occupier of premises loses.

Question 7

What are the three exceptions for when the finder does not get title to lost property?

Answer 7

1) Finder is a trespasser
2) Master/employer prevails over the servant/employee
3) If lost property is found in a highly private locus (a place not open to the public) the owner or occupier of property prevails over the finder. EX of 3: home or private office.

Question 8

What are the two kinds of gift?

Answer 8

1) Inter vivos

2) Gifs causa mortis made in contemplation of death.

Question 9

What are the three requirements for gifts inter vivos?

Answer 9

1) Donative intent
2) A valid delivery
3) A valid acceptance

Question 10

What is donative intent requirement?

Answer 10

1) Easier to find when donor and donee are closely related.

2) Means intent to pass title now (but possession doesn’t need to pass).

Question 11

What is the valid acceptance requirement?

Answer 11

Acceptance is implied by silence. Only way there is no acceptance is if you have explicit rejection by words or deeds.

Question 12

What is valid delivery?

Answer 12

1) handing something to someone
2) when donee is in possession of item when gift is attempted
3) where donor hands over something that is representative of the object of the gift i.e. keys

Question 13

What are the odd nit-picky delivery requirements for gifts?

Answer 13

1) Donor making out a check or promissory note to donee: no delivery until check is cashed or note is paid.
2) Donor gives donee a check or note made out to donor by a 3d party: valid delivery even if donor has not endorsed the check or not to donee.
3) Donor gives donee a stock certificate: Valid delivery even if donor hasn’t endorsed to donee or told corp of transfer.

Question 14

What if donor uses a middle person to get a gift to the donee?

Answer 14

If the middle person is donee’s agent, valid delivery when donor hands item to the middle person. If middle person is donor’s agent, delivery not good until middle person hands item to donee.
*If facts aren’t clear, construe middle person to be donor’s agent UNLESS the donee is a minor in which case agent is presumed to be donee’s agent.

Question 15

What is special about gifts causa mortis?

Answer 15

Worried about donors who make gifts in these stressful situations. Therefore, additional rules apply in addition to those that apply to inter vivos gifts.

Question 16

What kind of peril must the donor be contemplating to support a gift causa mortis?

Answer 16

Donor must be facing grave peril. Must be a FAIR DEGREE OF CERTAINTY OF LIKELIHOOD OF DEATH that is imminent and likely to occur.

Question 17

How may a gift causa mortis be revoked?

Answer 17

1) Donor can revoke at any time
2) Donee predeceased donor
3) Donor recovers i.e. gift causa mortis only valid if donor dies.

Question 18

What is the situation that used to cause a revocation of gift causa mortis (that no longer causes revocation)?

Answer 18

Where donor dies from something other than the peril that prompted the gift.

Question 19

When is there a bailment?

Answer 19

When the alleged bailee has taken over custody of a chattel w/ intent to serve as a bailee. If there are a lot of items involved, you may have to determine which items are bailed and which aren’t.

Question 20

What are the two special cases where the bailment requirements are relaxed?

Answer 20

1) Safe deposit boxes are generally regarded as bailment even though banks usually don’t know what is in them. Contents are bailed even if the bank doesn’t know they are there.
2) If it’s a parking lot or garage and the person parking the car gives up the keys, the car is bailed. If the driver keeps the keys, the car is not bailed.

Question 21

What is the standard of care of the bailee?

Answer 21

1) If bailment for sole benefit of bailor, bailee liable only for gross negligence.
2) If bailment for sole benefit of bailee, bailee liable for even slight negligence.
3) If bailment for mutual benefit, bailee must use ordinary care.
* MODERN TREND* apply ordinary care to all bailments.

Question 22

What are the two situations in which a bailee will be strictly liable?

Answer 22

1) Unauthorized use: bailee liable for anything that happens during unauthorized use.
2) Misdelivery: even if bailee misdelivers to someone using a forged instrument the bailee is strictly liable UNLESS the misdelivery is for a care in a parking garage to someone who has a forged claim check.

Question 23

What exculpatory clauses may a bailee use to limit liability for damage to the chattel?

Answer 23

Can limit liability for bailee’s ordinary negligence so long as bailor received effective notice of the limitation. Bailee cannot limit liability for gross negligence, recklessness, or intentionally tortious conduct.

Question 24

Bailments and bankruptcy?

Answer 24

Items on consignment are bailed. Bailed items cannot be included in a bankruptcy estate of the bailee and remain the property of the bailor.

Question 25

What is a common carrier?

Answer 25

One who undertakes for hire to transport persons or goods from place to place.

Question 26

What are the three requirements to be a common carrier?

Answer 26

1) must be a holding out to perform the service to all who apply
2) carriage must be for hire
3) service must be for carriage

Question 27

When is a common carrier liable?

Answer 27

A common carrier is an insurer of the goods given by the shipper and is liable for any damage or loss.

Question 28

What are the three exceptions to the rule of common carrier liability?

Answer 28

Goods are damages or destroyed by:

1) an act of nature
2) faulty packaging by the shipper
3) because goods are perishable and nature took its course