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Personal Property > Personal Property Essay Rules > Flashcards

Personal Property Essay Rules Flashcards

1
Q

Bailment

A

A relationship created by the transfer of possession of an item of personal property by one called the bailor to another called the bailee for the accomplishment of a certain purpose

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2
Q

There is no bailment unless the bailee obtains

A

Physical custody over the property coupled with the intent to exercise control

Physical custody (left rug)
Intent to exercise control (agreed to clean it)
Consent + knowledge (of presence) (ticket)

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3
Q

The bailee’s ________ to possession is required, and the bailee must have ________ or ________ knowledge of the article’s presence

A

Consent; actual; constructive

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4
Q

The specific degree of negligence upon which liability rests varies with the type of bailment

A

Sole benefit of bailor - gross negligence

Sole benefit of bailee - slight negligence

Mutual benefit of parties - ordinary due care

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5
Q

Sole benefit of bailor

A

Gross negligence

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6
Q

Sole benefit of bailee

A

Slight negligence

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7
Q

Mutual benefit of parties

A

Ordinary due care

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8
Q

Bailment breach - burden of persuasion

A

Where the bailor seeks to recover for the bailee’s negligence, the bailor has the burden of persuasion that the bailee was negligent

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9
Q

Who has the burden of persuasion of the bailee’s negligence?

A

Bailor

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10
Q

The bailor can make out a p/f case of negligence by

A

Showing delivery of the goods to the bailee and the bailee’s failure to redeliver the goods, or redelivery of damaged goods

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11
Q

Limitation of liability - prof bailee

A

Public policy prevents a professional bailee from exempting herself from liability for her own negligence, although, she may, under proper circumstances, limit her liability. However, a professional bailee’s limitation is not valid unless the bailee knows, or should know, of the limitation and assents to it

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12
Q

Most courts hold that a claim check does not

A

Evidence a contract between the parties

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13
Q

A claim check is generally issued for

A

Purposes of identification, and the mere fact that a would-be contract provision is contained on the claim check is not sufficient proof that the bailor actually knew, or should have known, of this term

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14
Q

BFP of stolen goods versus true owner

A

A BFP of stolen goods is not protected against the claim of a true owner

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15
Q

Even a BFP can be held liable as

A

A converter

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16
Q

Negligence action

A

Where the bailor seeks to recover for the bailee’s negligence, the bailor has the burden of proving that the bailee was negligent. The standard of care for a bailment for the mutual benefit of the bailor and the bailee (for example, a bailment for hire) is ordinary due care

However, the bailor can make a p/f case of negligence merely by showing delivery of the goods to the bailee and the bailee’s failure to redeliver the goods or redelivery of damaged goods

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17
Q

Breach of contract action

A

Where the bailor seeks to recover under a breach of contract theory, the modern rule places the duty on the bailor to show that there was a bailment contract and that the bailee failed to perform on the contract by failing to return the goods or returning them damaged

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18
Q

T/F A delivery without acceptance by the bailee will not create a bailment, and the mere custody of a chattel is not sufficient in law to constitute possession

A

True

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19
Q

T/F It cannot be said a person is in possession of an article as a bailee unless she has knowledge or can be charged with knowledge of possession of the article

A

True

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20
Q

In VA, the right to appeal a decision to the CC is fairly broad. The ground applicable is that a decision of the GDC may be appealed to the CC within the same geographical area when the amount in controversy exceeds

A

$20

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21
Q

Lost property

A

When the owner has accidentally and involuntarily parted with its possession and does not know where to find it

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22
Q

A person who reduces lost property to possession becomes

A

It’s finder

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23
Q

Generally, the finder is entitled to possession of the property as against all except

A

The true owner

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24
Q

The true owner retains title unless

A

A sufficient time has run for the goods to be deemed abandoned and the possessor has a duty to find the owner

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25
Q

Although the normal bailment is consensual, a constructive bailment is created when

A

A person lawfully acquires possession of another’s personal property, other than by a bailment contract, and holds it under such circumstances that the law imposes on him the obligation to keep the property safe and redeliver it to its owner

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26
Q

A constructive bailment is created when

A

A person finds the lost property of another

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27
Q

Final judgment and decrees in cases originating in circuit courts can be appealed directly to the supreme court except when

A

1) The amount in controversy is purely pecuniary and the amount involved on appeal is less than $500, or

2) Appellate jurisdiction is assigned to the court of appeals, which includes cases involving circuit court review of administrative decisions, domestic relations cases, workers’ compensation cases, and some criminal cases

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28
Q

Abandoned property

A

Owner voluntarily relinquishes ownership with intent to give up both title and possession/control

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29
Q

Title to abandoned property acquired if

A

Finder has possession w intent to assert title and control

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30
Q

Lost property

A

Owner accidentally and involuntarily parted w possession

Owner doesn’t know where to find property

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31
Q

Mislaid property

A

Intentionally placed but thereafter forgotten

Owner took some voluntary act in placing property down, and then left it behind

32
Q

Who gets property if mislaid?

A

Owner/occupier of premises on which property is found prevails over finder

33
Q

Who gets property if lost?

A

Generally, finder prevails over owner/occupier of premises

Exceptions:

Trespasser - if finder of lost property is trespasser, owner/occupier prevails

Employer/employee - if employee

Highly private locus - if found in place not open to public, owner/occupier prevails over finder

34
Q

Requirements for gift inter vivos

A

Donative intent, delivery, and acceptance

35
Q

Donative intent

A

Present mental capacity and intent to pass title now

[Easier to find when donor/donee are closely related]

36
Q

Delivery - actual physical delivery

A

Donor hands gift over to donee

[If donee already in possession - donor doesn’t need to repossess and return article to donee]

37
Q

Delivery - symbolic/constructive delivery

A

Donor hands over some object that’s symbolic of the gift or surrenders as much control over the subject matter of gift as they presently possess

38
Q

Requirements for gift causa mortis (gift made in contemplation of death

A

Nature of peril must be fair degree of certainty or likelihood of death that is imminent or likely to occur

39
Q

Revocation of gift causa mortis

A

1) Donor can revoke by affirmative act

2) Donee predeceases donor, or

3) Donor recovers

40
Q

Bailor’s rights in bailed chattel - actions against bailee where, due to bailee’s wrongful act, goods were lost or damaged

A

1) Damages in tort or contract

2) Detinue

3) Conversion

41
Q

Bailee’s duty with respect to bailed goods: contract limits on liability - exculpatory clauses

A

Bailee can limit liability for ordinary negligence if bailor has received effective notice of limitation

42
Q

Bailee’s duty with respect to bailed goods: strict liability if

A

Unauthorized use - any intentional authorized use of goods or departure from terms of bailment that results in loss or damage

Misdelivery - bailee fails to deliver or misdelivers chattel
[Exception: Misdelivery of vehicle in parking garage to someone w forged claim check]

43
Q

Common carrier requirements

A

1) Holding out to perform service for those who apply

2) Carriage must be for hire

3) The service must be one for carriage

44
Q

What liability does a common carrier have for loss or damage?

A

Common carrier is generally insurer of goods and is liable for loss/damage under any circumstances

Exceptions:
- Act of God
- Act or fault of shipper
- Inherent nature of goods (e.g., perishable goods)

45
Q

Liability of common carrier commences when goods are

A

Delivered to and accepted by carrier for immediate transportation

46
Q

Special bailment situations - safe deposit boxes

A

Generally regarded as bailment, even though bank usually has no idea what’s in box

47
Q

Special bailment situations - parking lots and garages

A

If lot/garage keeps keys - car is bailed

If self-park where driver keeps keys - car not bailed

48
Q

Special bailment situations - bankruptcy

A

Items on consignment are bailed

[Bailed items can’t be included in bankruptcy estate of bailee]

49
Q

Where an employer is found liable for his employee’s torts under the doctrine of respondeat superior, the employer may to then recover that amount in a lawsuit against the employee

A

False

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

50
Q

Where parties enter into a commercial relationship and there is a bailment of mutual benefit, the bailee will be liable for damage or loss only if:

A

His actions constitute ordinary or gross negligence

Virginia follows the common law approach of basing the standard of care upon a determination of who benefits from the bailor-bailee relationship. In a commercial relationship such as this one, the benefit is typically considered to be mutual, and an ordinary standard of care applies. Thus negligence or gross negligence will incur liability, but slight negligence likely will not

51
Q

A principal subsequently ratifies the contract signed and entered into by someone claiming to be his lawful agent when:

A

Principal takes no action to repudiate or dispute the contract

Principal knows the material terms of the K or is aware of his lack of knowledge of the specific terms

[Principal does not have to hold agent out as his representative]

The principal knows the material terms of the contact, or is aware of the contract’s existence and his lack of knowledge of the specific terms, and takes no action. In other words, a principal cannot avoid ratification by relying on his ignorance of the contract terms where he was deliberately ignorant of those terms. Additionally, silence may constitute ratification where a person would be expected to speak

52
Q

T/F An agent acts with actual authority where a third party reasonably believes, based on manifestations of the principal, that the agent is authorized, even if the agent has not actually been authorized

A

False

An agent acts with apparent authority where the third party reasonably believes, based on manifestations of the principal, that the agent is authorized.

53
Q

In order to bind a principal in a contract, the agent must act with either

A

Actual or apparent authority, or the principal must subsequently ratify the contract

54
Q

Actual authority may be either

A

Express or implied

55
Q

Actual authority may be either express or implied, and it is based on

A

The principal’s communications with the agent and the agent’s reasonable belief that he is authorized

56
Q

T/F An agent acts with apparent authority where the third party reasonably believes, based on manifestations of the principal, that the agent is authorized

A

True

57
Q

T/F In order to ratify the actions of the agent, the principal must know the material terms of the contract, or be aware of his lack of knowledge.

Additionally, silence may constitute ratification where a person would be expected to speak

A

True

58
Q

In order to ratify the actions of the agent, the principal must know ________, or ________

A

The material terms of the K; be aware of his lack of knowledge

59
Q

Implied authority (versus apparent authority)

A

When agent reasonably believes principal authorized him

In fact, authority to act on behalf of principal

60
Q

Apparent authority (versus implied authority)

A

Involves someone else (neither agent or principal)

Agent entering into K with third party

*Third party has to believe this person is an agent not based on the agent’s own statements or representations but because of the principal’s representations to him

61
Q

T/F Even if express, implied, or apparent authority is absent, the principal might ratify actions of agent if he knows material terms of the transaction or K or aware of the transaction or K and willfully blind, and does not object

A

True

62
Q

In order to bind a principal in K, the agent must act with either

A

Actual or apparent authority, or the principal must subsequently ratify the K

63
Q

T/F Actual authority may be either express or implied and it is based on the principal’s communications with the agent and the agent’s reasonable belief that he is authorized

A

True

64
Q

T/F An agent acts with apparent authority where the third party reasonably believes, based on manifestations of the principal that the agent is authorized

Apparent authority arises out of the principal’s holding out of the agent as authorized

A

True

65
Q

T/F Apparent authority arises out of the principal’s holding out of the agent as authorized

A

True

66
Q

T/F Merely holding Elmer out as an employee is not manifestation that Elmer had authority to contract for the repairs nor was there a sufficient basis for Fred to reasonably believe that Elmer was authorized

[Thus, Elmer did not act with apparent authority]

A

True

67
Q

T/F Ratification is a subsequent affirmation of an unauthorized contract

A

True

68
Q

Ratification is

A

A subsequent affirmation of an unauthorized contract

69
Q

T/F In order to ratify, the principal must know the material terms of the K, or be aware of his lack of knowledge

In other words, a principal cannot avoid ratification by relying on his ignorance of the K terms where he was deliberately ignorant of those terms

Additionally, silence may constitute ratification where a person would be expected to speak

A

True

70
Q

In order to ratify, the principal must

A

Know the material terms of the K, or be aware of his lack of knowledge

In other words, a principal cannot avoid ratification by relying on his ignorance of the K terms where he was deliberately ignorant of those terms

Additionally, silence may constitute ratification where a person would be expected to speak

[Alvin’s nod was not ratification bc he did not yet know the material terms of the K]

[Stronger argument that his subsequent silence, or failure to object, constituted ratification. However, he clearly did not have actual knowledge of the K terms, as he did not read the work order closely. Fred will argue that he should have read the work order, but it doesn’t seem from the facts that Alvin was even aware of his lack of knowledge]

71
Q

Silence or failure to object may constitute ratification where

A

A person would be expected to speak

72
Q

T/F In a commercial bailment relationship, the benefit is mutual, so an ordinary standard of care applies

A

True

73
Q

T/F A bailment relationship requires delivery by the bailor and consent by the bailee

A

True

74
Q

T/F VA follows the common law approach of basing the standard of care upon who benefits from the relationship

A

True

75
Q

T/F In a commercial relationship the benefit is typically considered mutual, and an ordinary standard of care applies

A

True

76
Q

Under the doctrine of respondeat superior, an employer is liable for the torts of his employee that are committed

A

Within the scope of employment

77
Q

T/F Courts generally hold the employer liable for the employees’ minor deviations, often referred to as a “detour”

A

True

Personal Property (1 decks)

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