Personal Property/Conflicts Flashcards
When is PP considered abandoned?
if the owner has VOLUNTARILY given up POSSESSION with INTENT to give up title and control
When does a finder acquire rights in abandoned property?
If the finder has POSSESSION with the INTENT to assert title.
Who get found property between an owner/or occupier of land vs. a finder, if the property is MISLAID?
Owner prevails over finder
Who get found property between an owner/or occupier of land vs. a finder, if the property is LOST?
Finder prevails (unless 1) finder is a TRESPASSER- or 2) the finder is a SERVANT in a master/servant relationship or 3) the lost property is found in a HIGHLY PRIVATE location)
What is Gift Inter Vivos?
1) Donative Intent (intent to pass title)
2) valid delivery (1) not required if donee is already in possession) - 2) with checks, no delivery until cashed
3) valid acceptance (implied by silence) - have EXPICITLY REJECT by words or deeds) - if it benefits the donee, acceptance is presumed
What is Gift Causa Mortis?
Gifts given when donor is facing GRAVE PERIL (FAIR DEGREE OR CERTAINTY THAT OF IMMINENT DEATH, and DEATH LIKELY TO OCCUR)….REVOCABLE
What is a bailment?
When an alleged bailee has taken over CUSTODY of a chattel with INTENT to serve as a bailee
Who is liable if chattel is damaged or destroyed during a bailment?
1) if for the sole BENEFIT of the BAILOR, bailee liable only for GROSS NEGLIGENCE
2) if for the sole BENEFIT of the BAILEE, bailee liable only for SLIGHT NEGLIGENCE
3) Mutual benefit, standard is ORDINARY CARE
When is a bailee STRICTLY LIABLE?
1) any unauthorized use
2) misdelivery (unless forged claim check in a parking garage)
*bailee can limit liability for ordinary negligence as long as bailor is notified - still liable for gross negligence or recklessness
What is a common carrier?
undertakes for HIRE to transport PERSON or THINGS from place to place.
1) must be a holding out to perform the service to all who APPLY
2) must be for hire
3) must be for carriage
* considered an INSURER and liable for ANY damage or loss with some excpetions (a) act of god, b) destroyed by fault of shipper, c) perishable goods and nature took its course)
What is needed to make a domicile of choice?
Legal CAPACITY (ability to fend for yourself)
1) physical PRESENCE in the state
2) INTENT to remain for forseeable future
The state handing down the judgment is the ______________state. The state called upon to recognize and enforce the judgment is the ___________________ state, also called the forum state.
Rendering;
Recognizing
When are sister state judgments entitled to Full Faith and Credit?
1) must meed 3 FFC requirements AND
2) no valid defenses
What are the three FFC requirements?
1) Valid jdx in the rendering court over both parties and SMJ of the litigation
2) must be final judgment (not modifiable) (if mondifiable may be entitled to COMMITY though)
3) judgment rendered on the merits (default and consent judgments are on the merits)
* rendering state law controls
What are the FFC defenses?
1) judgment is PENAL (judgment renderd for an offense AGAINST the public) - winner must be gov, not provate person or entity
2) Extrinsic Fraud (fraud that could not have been coped with in the earlier trial) I.e. bribing a judge
What are non-defenses to FFC? (not valid defenses, but you MUST discuss in the essay question if appear in the facts)
1) judgment violates public policy
2) mistake by the judge (appeal would be apporpriate remedy here)
3) inconsistent judgments
WHen are foreign country judgments recognized?
can be recognized and enforced under principles of fairness, PROVIDED that a two part COMMITY test is satisfied:
1) JDX must have been proper
2) fair procedures must have been used (use recognizing state’s law to determine if due process exists to make jdx fair)
Family law JDX in a nutshell:
for divorce, SMJdx =
for property awards, PJ=
FOr child custody, PJ=
- valid domicile of at least one party
- pjdx over spouse whose rights are being determined
- pjdx over the child - that is, the child’s home state.
What are the constitutional limitations of Choice of Law - 1 test to determine both FFC and Due Prorcess:
The state chosen must have a SIGNIFICANT CONTACT (or contacts) with the parties or the subject matter of the litigation which give it a LEGITIMATE INTEREST in seeing its law applied.
(no weighing of the states interests)
Virginia follows the__________to choice of law rules.
What is this?
Vested Rights Approach:
law to be applied is the law where the RIGHTS of the P VESTED,
Torts (where tort occurred), Contracts (law of place of execution), Property (situs where located-except PP passed thoruhg intestate succession - where decedent last domiciled)
A Federal court sitting in a diversity case must use the choice of law rules of the ______ in which it. If transferred apply the law of the state of the ______
state;
sits;
transferor
One who does not have title to goods cannot pass title to even a bona fide purchaser, except in the following circumstances:
(i) through MONEY and NEGOTIABLE INSTRUMENTS;
(ii) when the owner INTENDED to transfer title; or
(iii) when the OWNER REPRESENTED that the possessor has AUTHORITY to sell. Where the owner of goods is induced by fraud or misrepresentation to sell the goods and the vendee subsequently transfers the goods to a bona fide purchaser, the latter retains the goods as against the original owner where the original owner intended to transfer title to the goods to the defrauder.
Title to abandoned property is acquired by actual or constructive ________ AND _______ over the property, and an intent to assert ownership over it.
DOMINION; CONTROL; INTENT
Treasure trove, according to the common law, belongs to the finder as against everyone in the world except the__________
TRUE OWNER
Which of the following is true about a constructive bailment?
A
It is an involuntary bailment that arises by operation of law in a few situations where the agreement of the parties is implied.
B
It is a voluntary bailment that arises by operation of law in a few situations where the agreement of the parties is implied.
C It is an involuntary bailment that arises by operation of law in a few situations where the agreement of the parties is by contract.
D
It is a voluntary bailment that arises by operation of law in a few situations where the agreement of the parties is by contract.
A
It is an involuntary bailment that arises by operation of law in a few situations where the agreement of the parties is implied.
A Virginia court will use ________ law to decide whether a matter is substantive or procedural, and it will apply _________law if the matter in question is procedural.
Virginia; Virginia
Where the place of contracting and the place of performance are not the same, the governing law will always be the law of the place of _____________.
performance
If the UCC does not specify the applicable law, the parties’ ____________governs.
choice of law
Virginia court will not follow the parties’ choice of law provision if the Virginia legislature has_______________ of parties to select the law that will govern contracts involving the subject matter of the parties’ contract.
limited the ability
A Virginia court will not apply an express choice of law provision in a contract if the law of the state chosen is __________________ of the state whose law otherwise would govern.
contrary to the public policy
A Virginia court will apply the law of a second state even if the parties are Virginia residents and the contract was drafted, executed, and performed in Virginia, if the contract contains a _______________________________________
valid provision providing that the contract be governed by the law of the second state.
What are the three replacement theories a Virginia court will look to when deciding which law to use in a contract case?
1) choice by the parties
2) special UCC rule
3) the rule of validation
A Virginia court will apply the state law of the________________where the last event necessary to make the actor liable for the tort took place.
Place of the wrong
Which rule defining the place of contracting is NOT true?
A If acceptance is by mail, where the acceptance is posted.
B If the contract is effective upon delivery, the place of delivery.
C If acceptance is by telephone, where the party offering speaks.
D If the issue is renewal, where the new document is when the old one expires.
C If acceptance is by telephone, where the party offering speaks.
Which is NOT governed by the law of the place of contracting?
A Performance.
B Interpretation.
C Validity.
D Formalities.
Perfromance
Under the First Restatement approach, the details of performance are governed by the law of the place of performance. Which of the following is NOT a detail of performance?
A Sufficiency of performance.
B Nature and extent of duty to perform.
C Excuse for nonperformance.
D Manner, time, and locale of performance.
nature and extent of duty to perform
Ordinarily, statutes of limitations are regarded as ____________________ and governed by ____________________ .
procedural; law of the forum
The finder of lost property is treated as a _____for the sole benefit of the _________ and thus Bailee can be liable for ____negligence
Bailee; bailor; gross
A bailment requires________and_____________
Physical possession; intent to exercise control
“Bailments for hire” require what type of care from the Bailee?
Ordinary due care, bailment a for hire are considered for the mutual benefit of the Bailee’s
In what situations would the courts not apply a contracts choice of law provision?
1) the choice is obtained by unfair means, such as duress
2) the contract does not have a “reasonable relation” to the state law chosen OR
3) the state law chosen is contrary to the public policy of the other state
ALWAYS START WITH _____________IN CoL QUESTIONS THAT ARE BROUGHT IN FEDERAL COURT. FED DISTRICT COURT MUST APPLY THE SUBSTANTIVE LAW OF THE STATE _____________.
Erie Doctrine;
in which the Fed court Sits
IN VA, tort actions are governed by the law applying “place of the wrong” what is this?
the state in which the LAST EVENT NECESSARY to make the ACTOR LIABLE for tort took place.
Under a more moder theory, treasure trove is treated as_________
LOST PROPERTY. owner of RP possesses all that which lies beneath the surface of his land.
What is the exception to treasure trove?
If it is found in a HIGHLY PRIVATE LOCUS, like a house, belongs to owner.
Or if found in the course of employment, would belong to employer.
When stolen or converted property is found by a third party,____________
a CONSTRUCTIVE, or INOLVUNTARY BAILMENT arises. There is not transfer of title
What is the “special delivery requirement” for intervivos gifts that are personal checks?
Checks are not deemed delivered until they are cashed. If the donor dies before the check is cashed, VA statute allows a bank to honor a check 10 days after it learns of the customers death.
Special delivery requirement does not apply to checks of another that are endorsed to another party. DELIVERY IS VALID UPON TRANSFER
Gift Causa Mortis does not apply to ________.
Real Property, only personal property. Thus a transfer of real property under the fear of impending death is not revocable.
What are the different methods of delivery?
Actual Physical
Constructive
Symbolic
If a donor retains some rights in a gift, the gift can still be :
presumed valid.
