W & M Rule Statements Flashcards
What is mislaid property?
Property is mislaid when the owner intentionally places it in a particular spot and subsequently forgets it.
What is lost property?
Property is lost when the owner accidentally and unknowingly loses possession of the item.
What is stolen property?
Property a person takes from the rightful owner.
Who has title to stolen property?
The owner only
What kind of title does a thief have in stolen propety?
Void title
Can a thief sell the stolen property to a subsequent individual?
No - the subsequent individuals title will also be void because the thief did not have ownership to pass on.
Inter vivos gift occurs when there is:
(1) present donative intent;
(2) delivery to the donee; and
(3) acceptance by the donee.
Delivery of an inter vivos gift may be…
actual or constructive delivery
When an inter vivos gift is made, when does absolute property to title pass?
Absolute title to property passes to the donee and the gift will no longer be part of the estate.
Can a gift intended to take effect upon the donor’s death be an inter vivos gift?
No, an intent to pass title at death does not establish present intent.
A gift intended to take effect at death can only be accomplished by….
a will, which must be in writing
Gift Causa Mortis
A gift causa mortis is a gift of personal property given by a donor who is dying.
The elements for a gift causa mortis
(1) donor’s mental capacity and present intent,
(2) delivery,
(3) and acceptance), and
(4) must be made under the apprehension of death.
Present donative intent is not the same as…
future donative intent - (i.e., cannot say “I intend to give A the medal”)
Delivery of a causa mortis to the donee
Delivery requires more than a deathbed utterance
When the issue involves whether a certificate given to a 3rd party for the donee, the 3rd party must deliver the certificate to the donee
What is a third party intermediary?
A person who is presumed to the acting for the donee.
Can a third party intermediary accept the gift on behalf of the donee?
If the donee herself does not accept the gift, the issue is whether a third party can accept a gift that the donee is unaware of.
Inter Vivos Trust
An inter vivos trust can be created either by a written instrument or an oral statement.
Inter Vivos Trust requires….
resent transfer of trust property or the intent to create a trust (i.e., testamentary intent)
An oral inter vivos trust must be shown by…
clear and convincing evidence
Who takes ownership of a gift made to the donee that was part of the will?
The donee will be the owner.
What happens to the gift that was identified in the will?
When the testator makes a specific bequest, and the identified property is not part of the testator’s estate at her death, the gift is adeemed and the beneficiary receives nothing.
What is ademption by extinction?
can occur by an intentional act of the testator including when an inter vivos gift of the property is made to another
Where a valid gift is made before the decedent’s death, the bequest is…
adeemed by extinction and the beneficiary in the will is not entitled to the item that was gifted.
The donee has ownership of the gift.
For mislaid property, the true owner….
retains title to the property and has superior claim to the property over a finder.
With regard to mislaid property, an employer will have a superior claim to possession over the…
finder - typically an employee who finds the mislaid property
If an employee finds an item in the course of employment, the employer has the right to….
possess the item until the true owner comes forward
Can a buyer acquire title from a seller who did not have title in the first place?
Generally, a buyer cannot ordinarily acquire better title than his seller’s.
Active conversion
occurs when someone who does not have good title transfers it to another.
A bona fide purchaser who lacks notice of a conversion can acquire good title if:
(1) the property is money or a negotiable instrument;
(2) the converter acquired title by fraud in the inducement;
(3) the true owner entrusted goods to a seller of goods of that kind and the purchaser is a buyer in the ordinary course of the seller’s business.
When does a the converter acquire title by fraud in the inducement?
the true owner intended to transfer title to the wrongdoer but was fraudulently misled as to the identity of the wrongdoer or the purpose for which the money was used
What are the two elements of conversion?
i) The plaintiff must have clear legal ownership or right to possess the property at the time of conversion; and
ii) The defendant must have obtained the property through a wrongful act or by disposition of the plaintiff’s property rights.
Will the innocent buyer be liable to the seller or any of the seller’s creditors who have an interest in converted property?
NO
Does the innocent buyer have a remedy?
Yes:
The total amount paid to seller and any payments made to the seller’s creditor on a note to the seller and the creditor is a lien creditor.
Incidental and consequential damages are permitted.
Buyer in the Ordinary Course of Business
a person who buys in good faith and without knowledge that the sale to him is in violation of the ownership rights of a third party in the goods.
A Buyer in the Ordinary Course of Business - ownership rights even when seller does not have good title to sell
under the UCC, entrusting goods to a merchant who deals in goods of the kind gives the merchant power to transfer all rights of the entruster to a buyer in the ordinary course of business
A contractual bailment is…
A mutually consensual relationship where a bailor entrusts bailee with possession of chattels.
What is a gratuitous bailee?
a bailee who receives no benefit of the bargain
Establishing a Bailment, P must prove:
The bailor, P, delivered the goods to the bailee;
Bailee accepted the goods.
For a bailee to accept the goods the bailee must have:
physical control over the property and intent to exercise that control
Prima Facie for Breach of Contractual Bailment
P must prove a bailment as to the property and a breach by the D.
T prove a contractual bailment, P must prove:
(1) Delivery of the item
(2) Acceptance by the bailee
**The bailee must have knowledge of the bailment’s presence in order to accept it.
Breach of Bailment for Negligence
To establish a breach of bailment, P must prove that the particular standard of care was breached → standard of care depends on the nature of the bailment
The bailee’s standard of care depends on the…..
nature of the bailment
Standard of care for a bailee of contractual bailment for consideration
Contractual bailment for consideration, or a mutually beneficial bailment, the bailee must exercise ordinary care & will be liable for simple negligence
Standard of care for a gratuitous bailee
they are obligated to exercise slight care → only liable if grossly negligent.
Bailee’s obligation regarding returning the goods
a bailee is obligated to return the bailed goods to the bailor, and the bailee is strictly liable for misdelivery of the goods
Action in Detinue
Elements and allegations that need to be proved by P:
(1) P has a current right in the property,
(2) P has a right to immediate possession,
(3) The property is capable of possession,
(4) The property has value, and
(5)The D had possession of the property prior to filing.
In a detinue action, if P seeks pretrial seizure, she must…
post a double bond
Damages when the bailor paid in advance for the bailee to hold her goods:
the value of her possessions PLUS the unused portion of the prepaid fee
Damages when the bailor paid in advance for the bailee to hold her goods are available under what theories?
Breach of contract
Negligence
Strict Liability
Damages under conversion theory
Recovery would be calculated as the fair market value of the chattels at the time and place of the conversion
Under conversion theory, a bailor may be able to recover….
bailor may be able to recover the value as sold under the theory of unjust enrichment
4 different theories of recovery against an aggrieved bailor
- Breach of contract
- Negligence for Mutual relationship
- Conversion
- Strict Liability
Breach of contract
Where the bailor and bailee enter into an enforceable contract, a breach of the terms by failing to care for the goods as promised will give rise to a claim where bailor suffers compensable damages.
Negligence for Mutual Relationship
A bailee for mutual benefit is obligated to exercise ordinary reasonable care in the possession of another’s chattels. Breach gives rise to claim of negligence.
**The breach must be the actual and proximate cause of the bailor’s loss
**Bailor must suffer compensable damages
Conversion
Where a bailee sells the chattel of bailor without permission or legal right, they are depriving the bailor of the entire value of her chattels. They are liable as a converter.
Strict Liability
A bailee which misdelivers (returns the goods to someone other than the bailor or the bailor’s authorized agent) is strictly liable to the bailor.
***Innocent mistake by bailee is irrelevant
Respondeat Superior
An employer is liable for the torts of his employee committed within the scope of his employment, and NOT liable for any frolics.
Under Respondeat Superior, an employer will not be liable when:
Where the theft was an intentional act committed with no purpose to serve the employer’s interest → employer not liable
Under Respondeat Superior, the employer is liable for…
Minor Deviations / Detours - the employer is liable for the employees’ minor detours or deviations.
A principal may have a defense that an agent lacked….
authority to bind the principal to a K.
To bind a principal in contract
the agent must act either with actual or apparent authority, or the principal must subsequently ratify the contract.
Actual Authority →
may be express or implied; based on the principal’s communications with the agent and the agent’s reasonable belief that he is authorized
Apparent Authority →
where the third party reasonably believes, based on manifestations of the principal, that the agent is authorized.
Apparent authority may arise out of the principal holding out the agent as….
authorized.
NOTE: holding an individual out as an employee is NOT a manifestation that the employee has the authority to contract
Ratification →
a subsequent affirmation of an unauthorized contract.
In order to ratify,
the principal must know the material terms of the contact, or be aware of his lack of knowledge.
Principal cannot avoid ratification by….
by relying on his ignorance of the contract terms where he was deliberately ignorant of the terms
Silence may constitute ratification….
where a person would be expected to speak
Waiver of Liability
Contractual waivers of liability are disfavored and generally unenforceable in VA.
Limiting liability - to be an effective disclaimer or limitiation on liability:
to be an effective disclaimer or limitation of liability, the bailor must know of, or should have known of, and assent to the contractual limitation.
NOTE - If bailee writes a limited liability on the back of a receipt that the bailor did not see, this defense is not likely to succeed
Defense - No Bailment Exists
A bailment relationship requires delivery by the bailor and consent by the bailee.
Where the bailee is not aware of the duty to watch over an item (either by it being out of sight or not disclosed) there is no bailment and thus no liability
Defense - no breach of the standard of care
Common law approach to standard of care - based on who benefits from the relationship.
In a commercial relationship the benefit is typically considered to be mutual, and an ordinary standard of care applies.
Must be guilty of ordinary negligence in the care of other’s property in order to be liable for the loss.
Indemnification
Not technically a defense but instead a way to recover from employee.
Where an employer is found liable for an employee’s torts under the doctrine of respondeat superior, the employer has an indemnification claim against the tortfeasor employee.
