Subsequent Possession: Acquisition by Find

Question 1

What is the law of find?

Answer 1

The title of the finder is good against all the world, but the true (or prior) owner.

Question 2

How does the “law of find” change when an item is found in a private place? (Parker v. British Airways)

Answer 2

When an owner is in possession of a private place, the court may imply intent to possess all that is contained there (even without the owner’s knowledge of the item).

The owner of a private place is a “constructive” possessor.

Question 3

What property on a man’s land does he possess? (Hannah v. Peel)

Answer 3

A man possesses everything which is attached to or under his land, but does NOT necessarily possess a thing which is lying unattached on the surface of his land, even though the thing is not possessed by someone else.

Question 4

What is the locus in quo?

Answer 4

The location in which an item was found.

Question 5

What is a bailment?

Answer 5

The rightful possession of goods by a person who is not the true owner

Question 6

What is a bailor?

Answer 6

The person (likely the owner) who delivers the chattel to someone else.

Question 7

What is a bailee?

Answer 7

The person who receives the chattel from the bailor. They have possession of the chattel, but not ownership.

Question 8

To create a bailment, what is required of the bailee?

Answer 8

1. Intent to possess the property
2. Physical control over the property - to the exclusion of the bailor - during the term of the bailment

Question 9

What is a voluntary bailment?

Answer 9

When the owner intentionally transfers the possession, but not the ownership, of an item to another person

Question 10

What is an involuntary bailment?

Answer 10

When possession of an is transferred to another person, without the intent of the owner to do so.

Ex: when one party finds something that belongs to another party.

Question 11

What are the types of bailments?

Answer 11

1. Bailments for the bailor’s benefit (gratuitous bailments)
   Ex: the bailee fixes their neighbor’s (bailor) lawnmower as a favor
2. Bailments for the bailee’s benefit
   Ex: the bailee borrows the bailor’s lawnmower (with permission)
3. Bailments for mutual benefit
   Ex: the bailor takes their lawnmower to a professional repairman (the bailee)

Question 12

What is the standard for liability in a gratuitous bailment?

Answer 12

Gross negligence.

Question 13

What is the standard for liability in a bailment for the bailee’s benefit?

Answer 13

Slight negligence

Question 14

What is the standard for liability in a bailment for mutual benefit?

Answer 14

Ordinary negligence

Question 15

What is the liability for mis-delivered property with a voluntary bailment?

Answer 15

The bailee has absolute liability.

Ex: you drop a jacket at the dry cleaners and when you return for it, they no longer have it

Question 16

What is the liability for mis-delivered property with an involuntary bailment?

Answer 16

The bailee’s liability is measured by the ordinary negligence standard.

Ex: a cat takes refuge in your garage. You post photos around the neighborhood and online. Someone claims the cat as their own, so you give it to them. The next day, the true owner comes for the cat with proof that the cat is his.

Question 17

How is liability determined when the bailed property is returned in damaged condition?

Answer 17

Res Ipsa Loquitor (the thing speaks for itself)

The burden is on the bailee to prove that due care was used and that the damage occurred regardless of the adequate level of care.

Question 18

What is a “container case” in a bailment? How is liability determined?

Answer 18

Whether the bailee’s duty of care extends to the items contained within the bailed property.

Liability depends on whether the item is the TYPE of property that would be REASONABLY FORESEEN to be left with the property.

Question 19

What are the steps for analyzing bailment questions?

Answer 19

1. Was there a bailment?
2. Was the bailment voluntary or involuntary?
3. What was the type of bailment?
4. What was the duty of care?
5. Can the bailee rebut res ipsa loquitor?

Question 20

What is mislaid property?

Answer 20

When the owner intentionally placed the items in some location, then forgot to retrieve it.

Question 21

What is lost property?

Answer 21

When the owner inadvertently loses possession of an item.

Question 22

What is abandoned property?

Answer 22

When the owner intentionally relinquishes all legal right to the item with no intention to confer rights on any particular person.

Ex: leaving something in the trash

Question 23

Who receives ownership of mislaid property?

Answer 23

The owner of the locus in quo.

Rationale: it aids the return of the item to the true owner, who will likely retrace their steps to where they last left the item.

Question 24

Who receives ownership of lost property?

Answer 24

The finder.

Rationale: the true owner, who likely does not know the item’s whereabouts, is unlikely to retrace their steps to find it.

Question 25

Who receives ownership of abandoned property?

Answer 25

The finder.

Question 26

What are the steps of analysis for determining if an item is lost, mislaid, or abandoned?

Answer 26

1. What is the item?
2. Where was the item found?
3. Is this the type of place where it’s reasonable to assume the owner intentionally left that type of item?