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Property
Midterm 1
| Question | Answer |
|---|---|
| Holder | individual who may have title, right to possession, right to revenue, specific uses. May belong to several individuals simultaneously |
| Right | Category of interest. - Right to sue on an agreement |
| Res | Subject matter of property right |
| enforceability | legally recognized ability to claim a right over other interests. |
| Real Property | land (immovable) |
| Personal Property | chattels (everything that is not land) |
| Chattel | a personal possession (other than real estate) |
| In rem recovery | Legal action provided for recovery of the land itself. |
| In personam recovery | Legal action for recovery in damages (detinue) |
| Tangible | What can be seen. Ownership, possession. Corporeal Rights. choses in possession (the res) What can be seen. Ownership, possession. Corporeal Rights. |
| intangible property | Unseen rights. Crown ownership, rights of entry, use or rights in contract. Incorporeal Rights. Intellectual Property and Corporate Shares. choses in Action (right to recover) |
| Equity | recognized future interests |
| Writ of action | a written order granted to put in force a judgment of possession |
| Detinue | recovery of the actual good or damages |
| conversion | Intent to deprive or destroy property |
| Specific performance | complete obligations |
| injunction | an equitable remedy that compels a party to do or refrain from specific acts |
| Choses in Action | the right to sue--- an intangible personal property |
| Jurisdiction | the extent or range of judicial, law enforcement, or other authority / the territory over which authority is exercised |
| Constitution Act, 1867 | Property & civil rights |
| Royal Proclamation, 1763 | to direct English subjects in their relationships with Aboriginal nations. Reflects terms agreed to by the Aboriginal nations in the Treaty of Niagara. Regarded by Aboriginals as guaranteeing their ongoing sovereignty |
| Common law (2 meanings) | 1) Judge made law 2) Body of English law as adopted and modified by Canada |
| Prima facie | a proof of ownership "on the face of it" |
| Res | The thing. The subject of the matter |
| Custody | control without intention |
| Ferae naturae | wild animals |
| Possession | prima facie proof of ownership, having custody, the "thing" is in your possession (you have it) |
| Prior possessory right | person who owned chattle first & seeks to defeat claim of person in possession of chattel has higher right to chattle but bears onus (burden of proof) of establishing prior possession/ownership |
| "persons" who have non-ownership rights (3) | Finder- bailee- salvor |
| Elements to claim possessory rights (2) | 1) Physical control of res 2) Intention to control - need clear intention |
| Factors of Abandonment (2) | Loss of physical control & intention to give up physical control |
| Finder | takes possession of property for benefit of true owner |
| Salvage | Take goods found at sea(ships/boats etc) into possession to conserve in face of danger |
| Treasure trove | Hidden gold, silver, bullion, or coins |
| Gift | Voluntary & intentional transfer of property from owner to another (without consideration) Irrevocable if requirements for valid gift met |
| Inter vivos gift | between living donor & donee (orally or by deed) |
| Testamentary gift | transfer through will, effective at death |
| Domatio mortis causa | made in contemplation of death |
| Orally | spoken delivery (constructive/symbolic) |
| Conditions for Domatio mortis causa | Must use word “gift" Delivery (constructive/symbolic) Effective at death, revocable until that time |
| Bailment vs Licence (what makes the agreement a "License") | no duty of care on licensor |
| Duty of care | reasonable care to preserve the good (without compensation, except in case of salvage) Bailee has a duty to take care of the object that was bailed to him/her by Bailor |
| Standard of care | “reasonable care under the circumstances” |
| Deviance | Bailee use of good for other than authorized purpose Bailee will be liable for all damage regardless of cause |
| Vicarious liability | General rule: if employer delegates care of good to employee, would be responsible for how employee carries out his/her duties, within scope of employment |
| Exclusion clause | Bailees often try to limit liability for damages for bailed goods by exclusion/disclaimer clauses: Can be included in written contracts or in signs |
| Contra proferentem | "interpretation against the draftsman" |
| Attournment | bailee trasfers good to 3rd party, new bailment |
| Requirements to establish claim in bailment | (1) Delivery (2) Purpose (3) Failure to redeliver in adequate condition |
| onus | Burden of proof |
| Standard of care | reasonable care under the circumstances |
| Sub-bailment | 1) Bailee delivers bailed good to 3rd party as part of original bailment contract (becomes Bailee/Bailor) 2) Sub-bailee knowledge good belongs to original bailor 3) Sub-bailee duty of care to bailee/bailor and original bailor |
| Attournment | bailee trasfers good to 3rd party, new bailment |
| Sub-bailee’s duty of care | take reasonable care under the circumstances |
| Sale of Goods Act | regulates contracts in which goods are sold and bought |
| Factors Act | Protects 3rd party buyers from a consignment dealer if 4 conditions met: Purch made from mercantile agent Agent in possession of good w consent of owner Purch must be during normal course of business buyer must be bona fide buyer for value w/o notice |
| Personal Property Security Act | Doctrines and rules governing assignability were worked out in Equity codifies the basic rules of Equity modifies and expands rules for commercial purposes |
| Nemo dat (quod non habet) | Fundamental common law principle No one can give better title than they have No title passes even though purchaser may be innocent (bona fide) and paid for the goods |
| Estoppel | the principle that precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination. |
| Nemo dat | cannot give better title than you have |
| What is an exception to Nemo dat? | Sale by Agent |
| Choses in action | right to sue |
| Legal choses in action (assignment) | Permitted A to assign its chose in action (right to collect from B) to C by power of attorney |
| Equitable choses in action | Right to sue, on intangible personal property (Future interests) |
| Aboriginal title | Aboriginal title refers to the inherent Aboriginal right to land or a territory |
| Principle of continuity | Laws and usages of Aboriginal groups remained in full force following Confederation. Only exceptions were when the local customs of the Aboriginal peoples were “unconscionable” or “incompatible” with the Crown’s notion of sovereignty. |
| Treaty | agreements that set out promises, obligations and benefits for the parties involved |
| Royal Proclamation, 1763 | set out guidelines for European settlement of Aboriginal territories in what is now North America |
| The Nowegejick principle | 1)Treaties to be interpreted broadly 2) principle of interpretation adopted by SCC |
| Aboriginal tenure | a legal property regime in Canada |
| Principle of continuity | recognition that laws & usages of Aboriginal groups remained in force after confederation |
| Purpose of Royal Proclamation | set out guidelines for European settlement of Aboriginal territories |
| Modern treaties | comprehensive land claim settlements Deals with areas of Canada where Aboriginal people’s claims to Aboriginal rights have not been addressed by treaties, or other legal means |
| Sui generis | Canadian legal system recognizes Aboriginal title as sui generis – of its own kind |
| Purposive constitutional interpretation | Generous, liberal interpretation of the words in the Constitutional provision (s. 35) to further reconciliation |
| what does Honour of the Crown reference? | A phrase of Canadian aboriginal law in reference to the sometimes generous attitude the law takes to the definition of aboriginal rights ---- Crown promised in its treaties to protect Aboriginal people from frauds and abuses of European immigrants in |
| Precedent | an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances. |
| Rejection of discriminatory precedents | Biases and prejudices of early cases rejected. |
| Duty to consult | - arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.” Duty depends on the particular circumstances |
| Sections of Constitution act Re: Aboriginal Title | s. 35 enshrines existing Aboriginal and treaty rights enforced by s. 52 No laws can be passed by either level of government that do not respect the rights guarantees. |
| Constitutional Aboriginal title is based on six main principles, what are they? | Sui generis -- Purposive constitutional interpretation -- Honour of the Crown -- Rejection of discriminatory precedents -- Aboriginal perspectives and Aboriginal evidence -- Negotiation, consultation and accommodation |
| Damages | an award, typically of money, to be paid to a person as compensation for loss |
| Bona fide | Genuine sincerely; without intention to deceive |
| Privity of contract | only parties to contracts should be able to sue to enforce their rights or claim damages as such |
| Burden of proof (civil) | burden of proving [claim] on balance of probabilities |
| Equitable Rights | Developed in Court of Chancery. Actions in personam. Equity considered the fairness where no legal action was available |
| Equitable | developed in court of chancery Actions: detinue or conversion Remedies: specific performance or injunction |
| Judicature Act, 1873 | Merged Legal & equitable rights |
| Doctrine of precedent | Lower courts expected to follow decisions of higher courts |
| Sources/ Jurisdictions of property law | - Constitution Act, 1867 - Judicature Act - English Common Law -Statues |
| Duties of finder | - Reasonable search for true owner - Exercise reasonable care to preserve chattel |
| What is needed when Establishing ownership? (for finders) | prove intentional abandonment |
| Rights of finder vs. prior possessor | prior possessor has more right but Prior possessor must establish better right to res i.e. did not intend to give up control, greater control over locus in quo |
| Rights of finder in course of employment finder vrs employer? | likely employer (but consider a find by an independent contractor) |
| Rights of finder as trespasser/wrongdoer | forfeit claim |
| Requirements for valid gift | Donor must have good title -- the capacity for informed intention to give -- gift must not have "conditions" -- must be clear in intent (spoken, contract, will or symbolic) |
| What is the general rule of the "Sales of goods act" re: liability for damages | Person who has property at moment something happened bears risk of loss/liability ---- Who has property at any moment is determined by intention of parties |
| Sale of Goods Act s. 19 Default Rules | 1 - if goods in deliverable state risk of loss is when contract entered into 2- need to do something to put goods in deliverable state, title passes once in deliverable state and buyer received notice 3- seller do something determine price = #2 |
| capacity | legally recognized ability to have a property interest. |
| Bailee | has possession until specified purpose completed |
| Salvor rights | gives up possession to true owner -- entitled to compensation for care expenses --- salvors reward |
| Salvor | Finder at sea |
| Giver (gift) | Donor |
| Recipient (Gift) | Donee |
| Bailment | (temporary) Delivery of personal property by one party, the Bailor, to another, the Bailee, for a specific purpose, usually for a specific duration of time. |
| Factors to establish bailment claim | Delivery - Purpose -- Failure to redeliver and/or negligence |
| bailment vrs licence? (Parking lot example) | Who has keys? Is there a car attendant on duty? Did car attendant ask for keys? Where did attendant put keys? Surrender ticket to get keys back? Any signs in parking lot? (i.e. “owner of lot not responsible for any damage to vehicle”) |
| Considerations in interpretation of due care | Duty of care -- Standard of Care -- Liability for employees -- Exclusion clauses -- |
| Wong exception | Bailee and goods go missing As such, cannot establish what actually happened to goods i.e. if Bailee negligent |
| Reasons for (examples of) sub-bailment | Todd’s computer needs extensive repairs he brings is to Best Buy to fixed BB was able to fix most of the problems but had to send it to a technician who subcontracts with BB to complete repairs Bailee may realize cannot perform purpose of bailment |
| T or F? Historically, original Bailor could not sue sub-Bailee as no privity of contract | True |
| Statutory sources of personal property law | Sale of Goods Act Factors Act Personal Property Security Act (PPSA) |
| True or False? If goods are in a deliverable state then the transfer takes place at time contract was entered into. It is irrelevant whether payment or delivery has been made. | True |
| True or False? If something has to be done to put the goods in a deliverable state, title does not pass until the goods have been put in deliverable state and buyer has received notice | True |
| True or false? If a seller must do something to determine the price (i.e. weigh, measure or test goods), title does not pass until the buyer has done that and notifies the buyer. | True |
| True or False? Goods remain property of original seller until paid in full | True |
| True or False? Property passes to buyer when buyer has done something adopting goods or if a reasonable time has passed (if no fixed date for acceptance) | True |
| True or false? Sheriff not authorized to sell goods seized under Writ of Execution | False |
| True or false? Innkeepers have the right to sell goods to satisfy outstanding charges | True |
| True or False? Pawn shop owners cannot sell goods to satisfy lien | False |
| True or False? Courts have discretionary power to order a sale | True |
| True or False? Equitable rights recognized the fairness where no legal action was available | True |
| True or false? Ontario law premised on English common law | True |
| True or false? Concepts of property ownership were exactly the same from community to community in Aboriginal nations | False Concepts of property ownership varied from community to community in Aboriginal nations |
| True or False? Aboriginal tenure is a recognized legal property regime in Canada | True |
| True or False? Crown prohibited subjects from directly purchasing unpurchased lands under English protection | True |
| True or false? Crown declared itself protector over lands still under Aboriginal tenure to prevent interference by Europeans | True |
| True or false? Treaties should be interpreted strictly and in the way Canadians will understand them. | False Treaties should be interpreted broadly and in the way the Aboriginal people would have understood them. Uncertainties should be resolved in favour of the Aboriginals. |
| True or false? Aboriginal title and rights are not separate from rights afforded to non-Aboriginal Canadian Citizens under Canadian common law | False Aboriginal title and rights are separate from rights afforded to non-Aboriginal Canadian Citizens under Canadian common law |
| True or false? Aboriginal rights set out in treaties | True -- Courts interpret treaties to determine what rights Aboriginals have in land/territory and/or rights to use land in particular way |
| True or false? “Existing” rights is not defined | True -- Role of the Court is to determine these rights on case-by-case basis |
| True or false? Owners always have the highest property rights, but proving ownership can be difficult | True There are only a few things [with respect to personal property] for which ownership can be thoroughly traced and verified i.e. a car |
| True or false? if the wild animal gets away possessory rights lost | True |
| Factors for Physical Control of ferae naturae | One must establish as much control as is practicable in the circumstances. Must be clear, not open to dispute Degree of exclusivity over res Custom of the activity |
| True or false? Finder allocated better rights than others to encourage finding (public policy) | True |
| True or false? A finder’s right based on possession may be defeated by a person who demonstrates a better right through prior possession | True Example: Tenant entitled to broach found in apartment Landlord could not establish intention to control Written agreement could show intention to control Regularly attending at property could show intention to control |
| True or false? Items found in course of employment belong to employee | False Items found in course of employment belong to employer |
| True or false? If reward offered, can hold good until reward delivered | True |
| True or false -- Finders (non salvage) are entiled to a reward/compensation | False |
| True or false? Finders are generally not entitled to be reimbursed for money spent in preserving the good | True |
| True or false If owner does not appear within a reasonable time to claim good finder may try to establish ownership | True |
| Exception to the rule -- "Not entitled to be reimbursed for money spent in preserving the good"? | The Stray Animals Act Salvage (at sea) |
| True or false? Bailee has duty of care for goods and is required to safely return goods when purpose completed | True |
| True or false Bailment provided a means of ordering rights & responsibilities of someone in possession of the res of another | True |
| True or False At common law, bailment is a useful way to regulate relationships of repair and rental | True |
| Tort & Contract Bailment | Companies that would habitually handle goods of others (Bailees) would develop own written contracts confirming terms on which would hold the goods |
| Examples of a bailment | Delivery of shoes to cobbler for repair Rental of a car Drop off your suit for dry cleaning A neighbour who looks after your pet while you are on vacation A friend who borrows your computer |
| True or false (Bailment) Transfer of possession does not need to be voluntary | False Transfer of possession must be voluntary -- Seizure not is a bailment |
| True or false Mailing/leaving an item for a bailee is acceptable as transfer of property? | False Bailee must receive property voluntarily |
| Bailee's Liability for cases of Gratuitous bailment for bailor (i.e. Bailee storing Bailor’s car in garage for winter for free) | liable for gross negligence |
| when is Bailee Liabile in cases of Gratuitous bailment for Bailee (i.e. Bailee borrowing Bailor’s car for afternoon) | Bailee liable for slight negligence |
| Factors court would consider for standard of care | Nature of bailment -- Value of chattel -- Conduct of Bailor -- Conduct of Bailee -- Understanding between the parties |
| Describe "Standard of care exclusion clause: Notice" | is exclusion clause clear and direct enough? Example (parking lot ): are lot signs are large enough visible enough (where & how many) |
| Describe "Standard of care exclusion clause - Strict Construction" | The wording of the clause Example: a clause which states “not liable for loss however caused” Has been interpreted to be too wide to exempt a parking lot company for liability for damage caused by the negligence of Bailee’s employee |
| Describe Standard of care exclusion clause - Fundamental Breach | Essence of bailment is the duty of care for bailed goods - cannot create bailment then deny all liability Example: Valet company has sign up which clearly states not responsible for any damages to car, including negligence of employees |
| How to establish liability of sub-Bailee: | Bailee/Bailor must prove delivery specific purpose & a failure to redeliver & must establish that he/she had original Bailor’s permission to subbail & must establish that sub-Bailee knew or ought to have known that goods not owned by Bailee/Bailor |
| True or false Up to 1900’s, no right on part of Bailee/Bailor to sue sub-Bailee as Bailee/Bailor did not own goods | True The Winkfield decision changed this – could bring action against sub-Bailee for failure to redeliver goods |
| The Winkfield decision | Gave rights to Bailee/Bailor to sue sub-Bailee as Bailee/Bailor |
| True or false Sub-Bailee may be sued by either the original Bailor or Bailee/Bailor or by both | False Sub-Bailee may be sued by either the original Bailor or Bailee/Bailor but not both |
| True or false Province regulates laws of choses in possession | True |
| Purcahse and sale -- This area of law is primarily regulation based, true or false? | False This area of law is primarily statute based |
| When does property pass for unascertained goods? Which act states this? | Sale of Goods Act -- Intention determined by various factors: Terms of the contract, The conduct of the parties, The circumstances of the case |
| When does property pass for specific or ascertained goods? Which act states this? | Sale of Goods Act -- Intention determined by various factors: Terms of the contract, The conduct of the parties, The circumstances of the case |
| True or false in personam = only enforceable against the parties involved | True |
| True or false: Chose in action Property rights are only enforceable by court action | True |
| True or False Use of equitable injunctive power is used to order assignor to allow assignee to sue in their name by use of Power of Attorney | True |
| Seisin | possession of the land. |
| True or False? Supreme Court of Canada is the highest court | True |
| Legal vs. equitable rights | Legal = rights recognized by Kings court (through writs of action) -- Equitable = developed in court of chancery |
| What are the 4 conditions that must be met for protection under the factors act? | 1) Purchase made from mercantile agent 2) Agent in possession of good w consent of owner 3) Purch must be during normal course of business 4) Buyer must be bona fide buyer for value w/o notice |
| injunctive powerv | used to order assignor to allow assignee to sue in their name by use of Power of Attorney |
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