Property Law Exam 1

Front 1

In Order To Possess you need

Back 1

Physical Control

Intention to Possess (and exclude others)

Knowledge of the good (not necessarily exact)

Front 2

Inter Vivos Gifts Need

Back 2

Donor must have mental capacity

Donor must intend to give

There must be passage of title of the subject matter of the gift – CHANGE IN POSSESSION!

donee must accept the gift

Front 3

WHAT IS ACTUAL DELIVERY?

(conservative definition)

Back 3

Conservative: actual delivery means manual handing over, words of gift without handing over of possession is an incomplete gift

CASE: Reeves v. Capper

CASE: Shower v. Pilck

Front 4

What is "actual delivery" (liberal explanation)

Back 4

not always possible/practical/easy to hand over manually

CASE: Danby v. Tucker (1895)

* Look at surrounding circumstances and nature and character of the chattel, has there been an intention expressed to give?
* Does not say “manual handing over”
* Liberal interpretation: “retaining possession is not conclusive proof of no gift”
* No manual delivery necessary but must look at circumstances
* “Flow” of possession and rights

Front 5

CONSTRUCTIVE DELIVERY

Back 5

Possession moves with how people involved treat the good and act towards each other and the good See winter v winter- "Actual delivery of the chattel is no necessary to a gift inter vivos, it is sufficient that the conduct of the parties show that the ownership had changed” – bad language, does not overrule Irons"

Or a delivery of a representation of property (as a written instrument) or means of possession (as a key) that is construed as sufficient to show the transferor's intent or to put the property under the transferee's control called also symbolic delivery

Front 6

Is Delivery Spoken of Actual Delivery?

Back 6

Yes- J Wills

See Kilpin

Front 7

Onus to prove gift is good is on

Back 7

Donee

Front 8

Ratio Kilpin v Ratley

Back 8

Creditors FIL furniture

Delivery spoken of can constitute delivery of possession (can transfer legal right through words).

Front 9

Rawlinson v Mort

Back 9

Church Organ

Symbolic delivery, did all that could be done in a circumstance where real manual delivery was impossible.

valid gift was made when the parties were at the organ and words of gift were uttered in front of a witness

-obviously, you could not expect Mr. Copeland to lift the organ and physically transfer it over to the plaintiff

Front 10

Tellier v Dujardin

Back 10

Father Piano

Ratio: Words alone are good enough when goods are in common possession. Witnesses help a lot. - Delivery not required where goods are already in possession

Front 11

Re Cole

Back 11

Bankruptcy wife

just living there and using is not enough to show change of possession.

Important point is that insurance and house still in his name and he knew how to transfer properly

cannot give gift and use it as you would have before, will equal out and cannot be a gift Delivery between members of same household is problematic, and words of gift alone will not suffice.

Front 12

Cain v Moon

Back 12

Husband, Mother of deceased, bank notes

Antecedent delivery is OK, and witnesses help a lot

-Actual words spoken important; must show intention to give in event of death Delivery can predate giving

-Do not have to be in immediate contemplation of death.

Front 13

Wilkes v Allington

Back 13

Uncle, Cancer, Mortgage

Uncle offered to tear up niece's mortgage when he died of cancer, died of pneumonia.

Ratio: Don’t have to die of what you contemplate, or immediately; delivery does not have to be perfect, or complete.

Front 14

Thompson v Mechan

Back 14

Fear of Flying, car

Held that no DMC was made - fear was imaginary, was later overturned, courts are typically lax with DMC

Front 15

Labadie

Back 15

house-keeper, promissory note

Rule: Not a sufficient gift, because he went on with business as normal, continued taking payments from people (NOT “in extremis” or contemplation of death) & didn’t give her control when he gave her note

Front 16

Saulnier v Anderson

Back 16

Delivery more relaxed in DMC than IV

Indicia of Title is what actually gives you benefit of property

Have to do everything to put the object out of control

Burden of proof is on the donee

Where there is clear contemplation of death, is enough for DMC (Subjective test)

Front 17

Coggs v Bernard (1703), 92 E.R. 107 (Q.B.) 73

Back 17

Brandy Spillage

Six levels of bailment laid out – varying liability

(1) where benefit is solely for the bailor – only gross negligence is actionable

(2) where benefit is solely for the bailee – even the slightest negligence on the part of the bailee would be actionable (3) cases of mutual benefit – an ordinary standard of negligence (a reasonable standard as in tort) would apply

Ratio: Even a gratuitous bailment requires “reasonable care

Front 18

Crawford v Kingston and Johnston

Back 18

The one man could sell the cows; but in order to sell them he had to have title. Then title had shifted and there was no bailment.

Front 19

Ashby v Tolhurst

Back 19

Parking, Ticket Exculpatory

Ratio: A license allows someone to do something they could otherwise be sued for (eg trespass) Licence – key distinction between bailment v. licence – bailment requires transfer of possession

Front 20

Heffron v Imperial Parking

Back 20

Other parking case

keys delivered (no access to car)

inference that attendant more than a money taker

Once you establish bailment, the bailee has to answer for damage, and has to show it took reasonable care

An exculpatory clause limits the liability of the bailee.

Exculpatory causes can be killed by showing a fundamental breach

Front 21

Punch v Savoy's Jewellers Ltd

Back 21

Jewel, repair, train

To deal with limited liability clauses have to show: That it doesn't apply to situation or; Fundamental breach

'Cannot say you will do something and are not liable if you don't do it'

failure to deliver was a fundamental breach and the liability no longer applies

Front 22

Martin v Town 'n' Country

Back 22

bailee should prove he took reasonable care

Difficult to get a finding against a defendant in gratuitous bailment in Manitoba

Front 23

Houghland v R.R. Low (Luxury Coaches)

Back 23

Seniors lose luggae, bus left unattended

Standard of care the same as torts-reasonable

the plaintiff must only show that the bailment happened and the defendant must show that they were not negligent

Front 24

Letourneau v Otto Mobiles Edmonton

Back 24

railer in a parking lot adjacent to the defendant's premises, as they

had been instructed by an employee of the defendant.

Ratio: Bailment can occur upon delivery of chattel and evokes a duty of care of a 'prudent owner'. (Case/fact specific)