004 04 Property--Personalty; Bailments; Gifts

Front 1

Replevin--2

Back 1

1.The action or remedy to recover the converted asset itself
2.plus money damages for injury to the asset

Front 2

Trover--2

Back 2

1. Seeking Monetary damages for converted asset
2. Effectively a forced sale
jus tertii defense:
action to protect possession of property cannot be defeated by setting up a superior title in a third party.

Front 3

Types of personal Property--4

Back 3

1. Lost
2. Mislaid
3. Abandoned
4. Treasure Trove

Front 4

1.Lost Property
2.whose?
3.exceptions

Back 4

1. true owner loses it unknowingly and unintentionally
2. Belongs to finder
Armory v. Delamirie

Front 5

$ Mislaid Property
2.whose?
3.exceptions

Back 5

1. true owner intentionally left it never to return or with an intent to return.
2. Belongs to owner/possessor of the premises--public policy that true owner will likely return to pick it up.

Front 6

$ Abandoned Property
2.whose?
3.exceptions

Back 6

1. true owner intentionally and voluntarily relinquished; no intent to own; no transferral of rights to another
2. Finder
3. If finder is a trespasser, the owner of the premises where the property is found prevails over the finder.

Front 7

Treasure Trove

Back 7

gold, silver, or posibly currency intentionally concealed underground so long concealed that the owner has long since died--carries a sense of antiquity
2. Belongs to finder except in England where it belongs to the crown.

Front 8

Finders's Exceptions

Back 8

1. Trespassers--unless trivial
2. Where the finder is on premises for a limited purpose
-i.e. employee, guest
3. Hannah v. Peel--truly lost.
4. Whether embedded in soil.

Front 9

Bailment-2 part Definition

Back 9

1. rightful possession of goods by one who is not the owner
2. Can arise from consensual arrangements or involuntary possession.

Front 10

Examples of Voluntary Bailment (3

Back 10

1. Appliance repair
2. Coat Check

Front 11

Bailor

Back 11

person on whose behalf the goods are held

Front 12

Bailee--

Back 12

Person holding goods for the bailor

Front 13

Bailment--Creation (2 parts)

Back 13

1. Bailee must assume actual physical control (via delivery)
with (2) an intent to possess

Front 14

Bailment--Creation--actual control--exceptions

Back 14

Custody --person who has custody but not possession is not a bailee.

Front 15

Bailment--Creation--intent defined

Back 15

bailee must have intent to exercise physical control and bailor must intend to relinquish possession to bailor

Front 16

Bailment-Declaring value

Back 16

Owner need not declare the value of the parcel, bailment is still created.

Front 17

Involuntary Bailment

Back 17

When bailment arises even though bailor and bailee have not consented to the bailee's possession i.e. finder

Front 18

Bailee--Standards of Care (4)

Back 18

linked to who gets the benefit of the bailment
1. Solely for Bailor--slight care, liable only for gross negligence.
2. Mutual Benefit--ordinary negligence standard of care.
3. Solely for bailee--extraordinary care
4. Absolute Liability--failure to deliver--exception an involuntary bailee is only liable if negligent in redelivery--see Cowen v. Pressprich.

Front 19

Examples of various Standards of liability

Back 19

1. X leaves car at Y's gas station for a free carwash
2. Mutual Benefit--where bailee charges for service, leave car with mechanic for service.
3. Bailee--borrow lawnmower
4. Failure to deliver--strict liability--burden of proof on bailee Defendant

Front 20

Contractual Modification of Liability--exception

Back 20

permitted but must be (1) consented to by bailor and (2) still will not relieve from gross negligence
-sign not sufficient; claim check not sufficient. unless bailor knew or should have known about the provision

Front 21

Bailment--Delivery (3) Ways

Back 21

1. Actual
2. Constructive--i.e. a key b/c/ actually delivery is impracticable
3. Symbolic--receipt by bailee of something representing the chattel
[usually written instrument]

Front 22

Bailment--Acceptance

Back 22

like delivery, can be actual, constructive (involuntary)

Front 23

Bailment--Misdelivery--Public Policy behind strict liability for failure to deliver--5 reasons

Back 23

1. bailee is more aware of the history
2. bailee has legal right to sue thieves and converters
3. bailee is in best possession to secure recovery of the chattel
4. risk of damage or misdelivery is best borne by bailee bc it can spread the risk to its customers.
5. Prevents the bailee from engaging in fraudulent misdelivery.

Front 24

Definition: Gift

Back 24

Voluntary transfer of property without any consideration

Front 25

$ Gift: Elements

Back 25

1. Intent by donor
2. Delivery--usually the most important
3. Acceptance

Front 26

Definition: Gift inter vivos

Back 26

gift made "during life" while not under threat of impending death

Front 27

Def: Gift causa mortis

Back 27

gift made in contemplation of immediately approaching death
-revoked if donor recovers from illness that prompted the gift
cannot revive if illness "relapses"
--substitute for a will

Front 28

Distinction between gift inter vivos and gift causa mortis

Back 28

hinges on INTENT. did donor intend for gift to be irrevocable? or was it made in contemplation of death and to be revoked if death did not ensue.

Front 29

$ Gift: INtent defined

Back 29

must intend to pass title presently and not merely transfer possession.
A promise to give property in the future is not a gift[gratuitous promise therefore no considerache
--donee bears burden of proving donative intent

Front 30

Delivery via third person

Back 30

depends on who has control of the third person. control usually determined by the intent of the donor. If gift granted to donee's or an independent agent, then it is delivery, but if gift is in hands of an agent controlled by donor, delivery has not been performed.

Front 31

Revocable Gifts--exception

Back 31

not gifts because there is no surrender of dominion and control
Exception--if delivered in written trust, then donor may be able to revoke

Front 32

Goods already in possession of donee

Back 32

are considered gifts if the intent of the donor clearly demonstrates that the donee/bailee's status has moved from bailee to donee

Front 33

Gifts--Acceptance

Back 33

takes effect immediately upon delivery, subject to the right of the donee to repudiate the gift.