Personal Property

Front 1

Gift--Definition

Back 1

A present voluntary transfer of property without any consideration or compensation.

Front 2

Is a gift binding?

Back 2

Yes.

Once made, a gift is binding and cannot be withdrawn by the donor.

*Unlike a gratuitous promise to make a gift in the future, which is not binding because it lacks consideration.

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Gifts Inter Vivos--Definition

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A gratuitous transfer of real or personal property that takes effect immediately.

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Gifts Inter Vivos--Three Requirements

Back 4

(1) donative intent;

(2) valid delivery

(3) valid acceptance

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Donative Intent

Back 5

intent to presently transfer title to donee

Front 6

Gifts Inter Vivos: Valid delivery?

Back 6

requires some act to demonstrate intent to transfer or relinquish dominion and control

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Delivery of Gift--Forms of Delivery (Mnemonic)

Back 7

SAC-WAD

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Delivery of Gift--Forms of Delivery (SAC-WAD)

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S: symbolic delivery

A: actual physical delivery

C: constructive delivery

-

W: delivery by written instrument

A: delivery through agent

D: donee already in possession

Front 9

Acceptance of Donee

Back 9

When a gift is beneficial to donee, acceptance is presumed...

BUT, donee may refuse to accept a gift by an affirmative act.

Front 10

Uniform Transfers to Minors Act

Back 10

See p. 9 CMR

Front 11

Abandoned Property: Definition

Back 11

(1) intention by owner to voluntarily relinquish personal property; and

(2) external act of putting intent to abandon into effect

Front 12

Abandoned Property: A finder acquires rights in abandoned property if:

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(1) finder has possession

(2) with intent to assert title and control

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Abandoned Property: Special Rule for Safe Deposit Boxes

Back 13

All personal property that goes unclaimed for 3 years after expiration of the lease is presumed abandoned and turned over to the state.

If owner doesn't claim within 3 years, property sold and proceeds revert to general fund of State.

Front 14

The Lost and Unclaimed Property Act: Who wins between true owner and finder of personal property?

Back 14

General Rule: True owner always wins over finder of personal property.

Front 15

The Lost and Unclaimed Property Act: Who wins between finder of personal property and landowner on whose land the chattel was found?

Back 15

finder of personal property has right to possess property against all but true owner if true owner not found within 6 months

Front 16

The Lost and Unclaimed Property Act: Can finder keep found property?

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Yes, but only after following steps:

(1) report and deliver property to local enforcement authorities;

(2) provide name and current address; and

(3) if not claimed within 6 months, property returned to finder.

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Liens: A lien is:

Back 17

The right or claim by a person (lienor) to possess and retain personal property of another (lienee) because lienor has improved or enhanced in value or otherwise performed a service on.

*The lien operates as security for payment by lienee for all charges related to improvement or service.

Front 18

Liens

(1) A general lien gives the right to retain:

(2) A special lien give the right to retain:

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(1) all of the property of another as security for a general balance that is due.

(2) specific property as security for charges due for services to that specific property that adds value to it. [*lienor must have possession]

Front 19

Garage Keeper's Lien Act

Back 19

...

Front 20

Self-Storage Facility Act

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Grants owner of self-storage facility statutory lien on all personal property held within unit and permits owner to sell personal property as exclusive remedy of enforcing lien, provided property procedures are followed.

Front 21

Self-Storage Facility Act: Proper procedures to sale of personal property remedy?

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(1) written demand for payment made to owner in person or by certified mail, giving no less than 14 days to pay debt owed; and

(2) publication of advertisement of sale of property once a week for 2 consecutive weeks in a newspaper in the general area where facility located.

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Gifts: A valid gift passes:

Back 22

title

Front 23

Gifts: Three kinds of gifts:

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(1) gifts inter vivos

(2) gifts causa mortis

(3) gifts in contemplation of marriage

Front 24

Gift Causa Mortis--Definition

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A gift made in contemplation of imminent death.

Front 25

Gifts Inter Vivos: Donative Intent?

Back 25

Donor must have present mental capacity and intent to pass title (now, not later) gratuitously to donee.

Front 26

Gifts Inter Vivos

Valid Delivery: Special Rule for Checks & Promissory Notes

(1) If donor makes out check or promissory note to donee and gives it to donee:

(2) If donor gives donee check or note made out to donor by third party:

Back 26

(1) there is no delivery until check cashed or note paid.

(2) there is valid delivery, even if donor has not indorsed check or note to donee.

Front 27

Gifts Inter Vivos

Valid Delivery: Special Rule for Stock Certificates

(1) If donor hands donee stock certificate, representing shares in corporation:

Back 27

(1) there is valid delivery, even if donor has not indorsed stock over to donee nor told corporation of transfer.

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Gifts Inter Vivos

Valid Delivery: Special Rule for "Middle Person" Situation

(1) If middle person is donee's agent:

(2) If middle person is donor's agent:

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(1) there is valid delivery when donor hands item to that middle person.

(2) there is valid delivery when middle person hands it over to donee.

*IF facts unclear, construe middle person to be donor's agent.

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Gifts Inter Vivos: Valid Acceptance?

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Acceptance implied by silence; only no acceptance if explicit rejection, by words or deeds.

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Gifts Causa Mortis: Requirements

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(1) donative intent with present mental capacity

(2) valid delivery

(3) valid acceptance

(4) donor's belief: facing imminent death

(5) gift is personal property

*real property cannot be conveyed as gift causa mortis

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Gifts Causa Mortis: Donor has belief that he is facing imminent death when:

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fair degree of certainty or likelihood that death imminent

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Gifts Causa Mortis: Three Ways to Revoke

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(1) voluntary revocation--donor can simply revoke, at any time, before death

(2) donee predeceases donor

(3) donor recovers = automatic revocation--only valid if donor actually dies (even if for some other reason that peril that prompted gift)

Front 33

Gifts in Contemplation of Marriage: Besides engagement rings, whether gift made during engagement period was made in contemplation of marriage will be decided by court based on factors such as:

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(1) donor's intent

(2) type of property given

(3) whether there was any fraud or conditions attached to gift.

Front 34

Bailments: Definition

Back 34

Legal relationship created by physical transfer of possession of item of personal property by owner (bailor) to another party (bailee) in trust for specific lawful purpose.

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Bailments: Three Elements

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(1) custody of a chattel, and items typically found with it

(2) consent to serve as a bailee

(3) knowledge (actual or constructive) of chattel's presence

Front 36

Bailments: If an unknown article is concealed in a bailed object, is there bailment of the unknown item?

Back 36

No. No knowledge of chattel's presence.

Exceptions:

(1) Safe deposit boxes

(2) Parking lots or garages

Front 37

Bailments: Unknown Article Concealed in Bailed Object--Exceptions:

(1) Safety Deposit Boxes: Generally regarded as:

(2) Parking Lots or Garages: Key to determining if car is bailed is whether:

Back 37

(1) Bailments, even though bank usually has no idea what is in box.

(2) Person parking car gave up the keys:

-Car is bailed if parking lot or garage keeps keys.

-Car is not bailed if it is self-park lot where driver keeps keys.

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Bailments: Duty of Care

Liability of Bailee: If chattel is damages, destroyed, or missing:

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Bailee owes duty of care, but is not insurer of safety of goods. Therefore, bailee generally not liable for lost or damages goods through no fault of bailee. Loss falls on bailor...with two exceptions where bailee strictly liable.

BUT where bailee negligent, liability depends on type of bailment

Front 39

Bailments

Liability of Bailee: If chattel is damages, destroyed, or missing:

Two Exceptions Where Bailee Strictly Liable:

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(1) Unauthorized Use Situation: Bailee strictly liable if anything happens during any unauthorized use.

(2) Misdelivery Situation: Bailee has duty to redeliver or account for bailed items. If bailee misdelivers chattel, even to someone using forged instrument, bailee strictly liable.

*One exception = no strict liability if misdelivery is of vehicle in parking lot or garage to someone who shows up with forged claim check.

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Bailments: Three Types of Bailments

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(1) gratuitous bailee

(2) gratuitous bailor

(3) mutual benefit bailment

Front 41

Bailments

Bailee Duty of Care

(1) gratuitous bailee:

(2) gratuitous bailor:

(3) mutual benefit bailment:

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(1) duty to exercise slight diligence; only liable for gross negligence.

(2) duty to exercise great diligence; liable for even slight negligence.

(3) duty to exercise ordinary care

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Bailments: A showing that personal property was lost or damaged or destroyed while in possession of bailee:

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*creates rebuttable presumption of negligence.

*burden on bailee to show bailee met appropriate standard of care based on type of bailment to avoid liability.

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Can a bailee contractually limit his liability to bailor for misconduct?

Back 43

Yes, so long as bailor received effective notice of the limitation, but only for bailee's ordinary negligence (not gross negligence, recklessness, or intentional misconduct).

Front 44

Bailments and Bankruptcy

Back 44

Items on consignment are bailed. Bailed items cannot be included in a bankruptcy estate of the bailee and remain the property of the bailor.

Front 45

Accession: Definition

Back 45

Addition of value to property by expenditure of labor or addition of new materials.

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In an accession situation, who owns the enhanced chattel?

Back 46

Depends on who works the accession:

-Innocent trespasser may keep chattel IF chattel completely changed or substantially increased in value, but liable to original owner for damages (likely value of item in original condition when taken). Otherwise, original owner retains title and trespasser cannot sue for compensation for value added.

-Willful trespasser cannot keep chattel and will not get compensation for increase in value.

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Ownership: Tortious Conversion

Back 47

tortious conversion of personal property does not deprive true owner of title

Front 48

One who does not have title to goods cannot pass title, even to a BFP, except:

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(1) with regard to transfers of money and negotiable instruments;

(2) where BFP received goods through wrongdoer to whom owner intended to transfer title; or

(3) where BFP relied in good faith upon true owner's representations that possessor is owner or has authority to sell.

Front 49

lost property

Back 49

owner accidentally and involuntarily parted with possession and does not know where to find it

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mislaid property

Back 50

property intentionally placed there and thereafter forgotten

Front 51

abandoned property

Back 51

property abandoned when owner:

(1) intends to relinquish property without intending to transfer title to any particular person; and

(2) carries out that intention with external act.

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Statutory Conversion

Provides a remedy against:

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(1) one who steals, embezzles, or converts property to own use; and/or

(2) one who buys, receives, or aids in concealment of stolen, embezzled, or converted property with knowledge that property is stolen, embezzled, or converted