Personal Property/Conflicts

Question 1

When is PP considered abandoned?

Answer 1

if the owner has VOLUNTARILY given up POSSESSION with INTENT to give up title and control

Question 2

When does a finder acquire rights in abandoned property?

Answer 2

If the finder has POSSESSION with the INTENT to assert title.

Question 3

Who get found property between an owner/or occupier of land vs. a finder, if the property is MISLAID?

Answer 3

Owner prevails over finder

Question 4

Who get found property between an owner/or occupier of land vs. a finder, if the property is LOST?

Answer 4

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)

Question 5

What is Gift Inter Vivos?

Answer 5

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

Question 6

What is Gift Causa Mortis?

Answer 6

Gifts given when donor is facing GRAVE PERIL (FAIR DEGREE OR CERTAINTY THAT OF IMMINENT DEATH, and DEATH LIKELY TO OCCUR)….REVOCABLE

Question 7

What is a bailment?

Answer 7

When an alleged bailee has taken over CUSTODY of a chattel with INTENT to serve as a bailee

Question 8

Who is liable if chattel is damaged or destroyed during a bailment?

Answer 8

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

Question 9

When is a bailee STRICTLY LIABLE?

Answer 9

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

Question 10

What is a common carrier?

Answer 10

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)

Question 11

What is needed to make a domicile of choice?

Answer 11

Legal CAPACITY (ability to fend for yourself)

1) physical PRESENCE in the state
2) INTENT to remain for forseeable future

Question 12

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.

Answer 12

Rendering;

Recognizing

Question 13

When are sister state judgments entitled to Full Faith and Credit?

Answer 13

1) must meed 3 FFC requirements AND

2) no valid defenses

Question 14

What are the three FFC requirements?

Answer 14

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

Question 15

What are the FFC defenses?

Answer 15

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

Question 16

What are non-defenses to FFC? (not valid defenses, but you MUST discuss in the essay question if appear in the facts)

Answer 16

1) judgment violates public policy
2) mistake by the judge (appeal would be apporpriate remedy here)
3) inconsistent judgments

Question 17

WHen are foreign country judgments recognized?

Answer 17

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)

Question 18

Family law JDX in a nutshell:

for divorce, SMJdx =

for property awards, PJ=

FOr child custody, PJ=

Answer 18

• 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.

Question 19

What are the constitutional limitations of Choice of Law - 1 test to determine both FFC and Due Prorcess:

Answer 19

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)

Question 20

Virginia follows the__________to choice of law rules.

What is this?

Answer 20

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)

Question 21

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 ______

Answer 21

state;
sits;
transferor

Question 22

One who does not have title to goods cannot pass title to even a bona fide purchaser, except in the following circumstances:

Answer 22

(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.

Question 23

Title to abandoned property is acquired by actual or constructive ________ AND _______ over the property, and an intent to assert ownership over it.

Answer 23

DOMINION; CONTROL; INTENT

Question 24

Treasure trove, according to the common law, belongs to the finder as against everyone in the world except the__________

Answer 24

TRUE OWNER

Question 25

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.

Answer 25

A
It is an involuntary bailment that arises by operation of law in a few situations where the agreement of the parties is implied.

Question 26

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.

Answer 26

Virginia; Virginia

Question 27

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 _____________.

Answer 27

performance

Question 28

If the UCC does not specify the applicable law, the parties’ ____________governs.

Answer 28

choice of law

Question 29

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.

Answer 29

limited the ability

Question 30

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.

Answer 30

contrary to the public policy

Question 31

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 _______________________________________

Answer 31

valid provision providing that the contract be governed by the law of the second state.

Question 32

What are the three replacement theories a Virginia court will look to when deciding which law to use in a contract case?

Answer 32

1) choice by the parties
2) special UCC rule
3) the rule of validation

Question 33

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.

Answer 33

Place of the wrong

Question 34

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.

Answer 34

C If acceptance is by telephone, where the party offering speaks.

Question 35

Which is NOT governed by the law of the place of contracting?

A Performance.
B Interpretation.
C Validity.
D Formalities.

Answer 35

Perfromance

Question 36

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.

Answer 36

nature and extent of duty to perform

Question 37

Ordinarily, statutes of limitations are regarded as ____________________ and governed by ____________________ .

Answer 37

procedural; law of the forum

Question 38

The finder of lost property is treated as a _____for the sole benefit of the _________ and thus Bailee can be liable for ____negligence

Answer 38

Bailee; bailor; gross

Question 39

A bailment requires________and_____________

Answer 39

Physical possession; intent to exercise control

Question 40

“Bailments for hire” require what type of care from the Bailee?

Answer 40

Ordinary due care, bailment a for hire are considered for the mutual benefit of the Bailee’s

Question 41

In what situations would the courts not apply a contracts choice of law provision?

Answer 41

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

Question 42

ALWAYS START WITH _____________IN CoL QUESTIONS THAT ARE BROUGHT IN FEDERAL COURT. FED DISTRICT COURT MUST APPLY THE SUBSTANTIVE LAW OF THE STATE _____________.

Answer 42

Erie Doctrine;

in which the Fed court Sits

Question 43

IN VA, tort actions are governed by the law applying “place of the wrong” what is this?

Answer 43

the state in which the LAST EVENT NECESSARY to make the ACTOR LIABLE for tort took place.

Question 44

Under a more moder theory, treasure trove is treated as_________

Answer 44

LOST PROPERTY. owner of RP possesses all that which lies beneath the surface of his land.

Question 45

What is the exception to treasure trove?

Answer 45

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.

Question 46

When stolen or converted property is found by a third party,____________

Answer 46

a CONSTRUCTIVE, or INOLVUNTARY BAILMENT arises. There is not transfer of title

Question 47

What is the “special delivery requirement” for intervivos gifts that are personal checks?

Answer 47

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

Question 48

Gift Causa Mortis does not apply to ________.

Answer 48

Real Property, only personal property. Thus a transfer of real property under the fear of impending death is not revocable.

Question 49

What are the different methods of delivery?

Answer 49

Actual Physical
Constructive
Symbolic

Question 50

If a donor retains some rights in a gift, the gift can still be :

Answer 50

presumed valid.