Personal Property

Question 1

What is real property?

Answer 1

All land and its improvements

Question 2

What is personal property?

Answer 2

All property that is not real property

Question 3

What are the categories of found property?

Answer 3

1. Abandoned property
2. Lost property
3. Mislaid property

Question 4

When is property abandoned?

Answer 4

If the owner has voluntarily given up possession with the intent to give up title and control

Question 5

If someone finds abandoned property, doe they have rights in it?

Answer 5

Yes, if the finder has possession with the intent to assert title and control

Question 6

Who are the people who will fight over lost or mislaid property?

Answer 6

1. The finder
2. The owner of the land where it was found

Question 7

What is lost property?

Answer 7

The owner’s parting with the property was both:

• Accidental
• Involuntary

Question 8

What is mislaid property?

Answer 8

Found property where the owner has taken some voluntary act in placing it down, and the owner leaves it behind

Question 9

If property is mislaid, who gets to keep it? The finder or the owner of the land where it was found?

Answer 9

The owner or occupier of the land where it was found

Question 10

If property is lost, who gets to keep it? The finder or the owner of the land where it was found?

Answer 10

The finder, unless:

1. If the finder is a trespasser, the owner/occupier prevails
2. If the finder is a servant of the owner/occupier, the owner/occupier prevails
3. If the lost property is found in a highly private venue that is not open to the public, the owner/occupier prevails
   
   • E.g., home or office

Question 11

What does a gift do?

Answer 11

It passes title

Question 12

What are the different kinds of gifts?

Answer 12

1. Inter-vivos (i.e., while alive)
2. Causa mortis (i.e., made in contemplation of death)

Question 13

What are the requirements for a valid inter-vivos gift?

Answer 13

1. Donative intent
2. Valid delivery
3. Valid acceptance

Question 14

What are the key points regarding donative intent for an inter-vivos gift?

Answer 14

• Easier to find when donor and donee are in a close relationship
• Must be the intent to pass title, not mere possession

Question 15

What are the key points regarding valid acceptance of an inter-vivos gift?

Answer 15

• It may be implied by silence
• The only way it isn’t found is if there is an explicit rejection, either by:
  
  • Words
  • Acts

Question 16

If the recipient of an inter-vivos gift explicitly rejects, but still retains possession, what should the grantor do?

Answer 16

Bring an action for detinue - i.e., to recover for the wrongful taking of personal property

Question 17

What are the key points regarding valid delivery of an inter-vivos gift?

Answer 17

Sufficient delivery includes:

• Physical delivery
• Donee is already in possession
• Delivery of a representative object of the gift

Question 18

When a donor makes out a check or a promissory note to a donee and hands it to the donee, does that satisfy the delivery requirement?

Answer 18

No. Delivery does not occur until:

• The check is cashed
• The note is paid

If it’s the donor’s instrument, delivery when cash received

Question 19

When a donor takes a check or a promissory note that is made out to the donor by a third party, and hands it to the donee, does that satisfy the delivery requirement?

Answer 19

Yes. Even if the donor has not endorsed the check or note to the donee.

If it’s not the donor’s instrument, delivery immediately

Question 20

When a donor hands a donee a stock certificate, is this a valid delivery?

Answer 20

Yes. Even if:

• The donor has not endorsed the stock over to the donee
• The donor has not informed the corporation of the transfer

Question 21

If a donor delivers a gift to the donee using a middlement (i.e., agent), when is the gift delivered?

Answer 21

If the middleman is donor’s agent:

• Delivery is not until the donee receives the gift

If the middleman is donee’s agent:

• Delivery is immediate

Question 22

If the facts are not clear as to whether the middlement delivering a gift is the donor’s or donee’s agent, what should you do?

Answer 22

If donee is an adult:

• Assume the middleman is the donor’s agent, and therefore delivery is not satisfied until the donee receives the gift

If donee is a minor:

• Assume the middleman is the donee’s agent, and therefore delivery is satisfied immediately

Question 23

What are the requirements for a valid gift causa mortis?

Answer 23

1. The donor must face a fair degree of certainty that death is imminent
2. The gift must not be revoked

Question 24

How can a gift causa mortis be revoked?

Answer 24

1. Donor simply revokes before death
2. Donee predeceases donor
3. Donor recovers - i.e., does not die

Note: so long as the donor dies, the gift is valid, subject to the restritions above - it does not matter whether the death is related to the reason the donor made the gift

Question 25

What is a bailment?

Answer 25

When a person _takes custody_ of chattel with _intent_ to serve as a _bailee_ as to the particular chattel, _and anything it would usually include_

Question 26

Are safe deposit boxes bailments?

Answer 26

Yes, even though the bank usually has no idea what's in the box

Question 27

How do you determine whether a car is bailed in a parking lot or garage?

Answer 27

If the attendant takes the person's keys: * Bailment If the person keeps their keys: * No bailment

Question 28

If chattel that is bailed becomes damaged, destroyed, or missing, when is the bailee liable? What is the traditional approach? What is the modern approach?

Answer 28

Traditional approach: 1. If the bailment was for the sole benefit of the _bailor_ * Bailee liable only for _gross negligence_ * E.g., fixing a watch without charge 2. If the bailment was for the sole benefit of the _bailee_ * Bailee liable for even _slight negligence_ * _​_E.g., letting someone borrow your watch 3. If the bailment was for the mutual benefit of the _bailor and bailee_ * Bailee liable if he does not exercise _ordinary care_ Modern approach: * Apply _ordinary care_ standard in all situations

Question 29

When is a bailee strictly liable for damage, destruction, or loss?

Answer 29

1. Bailee engages in _unauthorized use_ 2. Bailee _misdelivers_ chattel to the wrong person, even if based on forgery * Exception: * If someone in a parking garage presents a valid ticket, bailee is not strictly liable

Question 30

Can a bailee limit his liability for damage to the chattel?

Answer 30

Yes, but: * Only for _ordinary negligence_ (i.e., not gross, reckless or intentional conduct) * Provided that: * Bailor received _notice_ of the limitation

Question 31

Is a bailment included in the bailee's bankruptcy estate?

Answer 31

No. Bailed items remain property of the bailor.

Question 32

What is a common carrier? What are the requirements to be one?

Answer 32

Definition * Someone who undertakes _for hire_ to transport _persons_ or _goods_ from place to place Requirements 1. Must be a _holding out_ to perform the service to all who apply 2. Service must be _for hire_ 3. Service must be _for carriage_

Question 33

When is a common carrier liable for damage or loss?

Answer 33

Anytime, unless: 1. Damage or loss was due to _act of nature_ 2. Damage or loss was due to _fault of_ shipper 3. Damage or loss was due to good being _perishable_

Question 34

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

Answer 34

* Through _money and negotiable instruments_ * When the owner _intended to transfer title_ * When the owner _represented that the possessor has authority to sell_

Question 35

What is treasure trove? Who does it belong to according to common law?

Answer 35

Treasure trove is any gold or silver in coin, plate, or bullion found concealed (e.g., in the earth, in a house, in a bureau, etc.), the owner of which is unknown. Treasure trove has been held to include paper representatives of gold and silver. Treasure trove, according to the common law, belongs to the finder as against everyone in the world except the true owner. In addition, the fact that the finder was a trespasser would not deprive him of his possessory rights.

Question 36

The burden of proving that a gift has been made is on the donee, who must establish donative intent and delivery of the subject of the gift:

Answer 36

By clear and convincing evidence

Question 37

Which type of gift delivery occurs when a donor hands over some object other than the gift itself, even if the subject matter of the gift was capable of being manually or physically transferred?

Answer 37

Symbolic delivery _Note_: Constructive delivery occurs when it would be impossible or impracticable to manually deliver an item because of its size or location.

Question 38

What is constructive bailment?

Answer 38

It is an _involuntary_ bailment that arises by operation of law in a few situations where the agreement of the parties is _implied_.