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Personal Property
| Question | Answer |
|---|---|
| Define a bailment | A bailment is the relationship created by the transfer of possession of an item of personal property by one called the bailor to another called the bailee for the accomplishment of a certain purpose (no transfer of title, express contract not necessary). |
| How do you create a bailment? | 1)Bailee must obtain physical possession of the personal property AND 2)The bailee must have an intent to acquire possesion which is specific or generic (bailee doesn't know precise nature of the item being bailed, but will only include usual items) |
| Give some examples of a bailment: | Turning over the keys by car owner to operator of a garage (not if owner keeps keys); bathhouse lockers; safe deposit boxes; cloakrooms |
| How does New York limit recovery for negligence in cloakroom deposit situations (note statute must be conspicuously posted) | i) ACTUAL VALUE: negligence shown, fee charged, value +$200 declared and written receipt stating value ii)$300: value of +$200 declared, other conditions met but no negligence iii) $200: no fee, value not declared, written receipt |
| Distinguish a consignment from a bailment | A consignee is authorised to sell the goods in the ordinary course of trade. |
| What are the bailee's rights? | - Exclusive right to possession, provided acting according to t&cs. May maintain action for conversion or replevin against 3P or bailor (unless gratuitous bailee) - NO right to use, except as expressly or impiedly agreed |
| What are the bailor's rights? | If goods bailed have been lost or damaged, bailee has an action for damages for breach of contract, tort, conversion or replevin. Bailor may also sue 3P who damages his reversionary interest (but no replevin while does not have right to possession). |
| What is the bailee's duty of care? | Modern approach: all must exercise reasonable prudence in protecting property. Other approach: Sole benefit of bailor - only slight diligence Sole benefit of bailee (lend car to friend) - great diligence Mutual benefit - ordinary care |
| What are the elements of prima facie case for breach of duty of care? | (1) bailment was created (2) bailor made demand for the return of the goods (3) the goods were not returned or were returned in damaged state The burden is then on the bailee to prove loss was caused without breach of duty of care. |
| When is a bailee absolutely liable (irrespective of care or negligence)? | - Intentional unauthorised use of the goods resulting in loss or damage - If otherwise departs from the terms of the bailment (e.g. moves goods from agreed place of storage) - Misdelivery of goods |
| When is there an exception to liability for misdelivery? | If bailee delivers the chattel to one holding an indispensable instrument (e.g. claim ticket) so long as bailee has no notice or knowledge that the one presenting the instrument was not bailor e.g. cars in parking lots |
| How can liability be limited for breach of bailee's duty of care? | The parties may prescribe the extent of the bailee's liability by contract and may impose lesser/greater extent of liability. Professional bailee can't exempt themselves by contract for liability created by her own negligence. |
| Can liability be limited by signs? | Liability limitations on posted signs are not binding on the bailor in the absence of proof that he read the notice or by its size and location should have read the sign. Claim check is not sufficient. |
| How is a bailment terminated? | By agreement or by conduct of the parties. |
| How does a constructive bailment arise? | Implied by law regardless of intent of the parties e.g. lost and mislaid property |
| Define a common carrier: | A common carrier is one who, for compensation, transports goods or persons for anyone who wishes to employ her. |
| Define an innkeeper: | One who provides board and lodging to transients. |
| What is a commona carrier liable for? | Common carrier is liable for any loss or damage to the goods except by act of God, act of the state, act of the shipper or inherent nature of the goods (e.g. perishable). Limited to foreseeable negligence. |
| What is the SoL for suits against common carriers? | If the sought is not brought within one year after delivery or the date when the goods should have been delivered, the carrier is discharged from liability. |
| What standard of care is an innkeeper held to? | Held to a standard of reasonable care and liability is limited to negligence. Not insurer of safety of guest. Is liable for loss by burglary, theft or negligence regarding personal property. Liability can be limited by provision of safe. |
| Define a common law lien? | A common law lien is the right to possess and retain personal property that has been improved or enhanced in value by the person who claims the lien until the person claiming the property pays in full all charges attaching to the property. |
| How is a lien created? | 1) a debt has arisen from services performed on personal property 2) title of the property is in the debtor 3) possession of the property is in the creditor Can only be created by owner or one authorised to do so by owner. |
| Define general lien and special lien | General lien - right to retain all of the property of another person as security for a general balance due from that person Special lien - right to retain specific property of another to secure a particular claim or charge for that property itself |
| What are the consequences of release of the lien? | General lien - if release part of the chattels, the lien is not released and may hold the unreleased portion until lien charge paid. May reserve rights and no surrender. Special - if releases portion, waives lien to extent of chattels released. |
| Liens for innkeepers and common carriers: | An innkeeper's lien attaches to any property brought into the inn. A common carrier's lien attaches only to property that it receives from the property owner. |
| What is the law in new york regarding sale of property to satisfy lien | Ex parte sale of property to satsify the lien of a garagekeeper is prohibited. |
| How is a lien waived? | - By contract (any inconsistent with existence of lien e.g. payment after delivery) - By acceptance of other security - Where lienor includes amount in excess of lawful charges |
| Define ownership by occupancy: | A thing capable of ownership but not then owned belongs to the person who acquires actual or constructive control or dominion over it and has the intent to assert ownership over it |
| How does one gain ownership over wild animals | Wild animals become private property upon being reduced to possession. Constructive possession if sets traps or mortally wounded and in pursuit. If escapes before capture, title lost. Trespasser who kills game on another's land forfeits his title to owner |
| What is the effect of tortious conversion? | Tortious conversion of PP does not deprive the true owner of her title. Moreover, one who does not have title to goods cannot pass title even to a bona fide purchaser (note exceptions). |
| When can a bona fide purchaser obtain good title from one without title? | 1) Money or a negotiable instrument is transferred; 2) Owner of goods, induced by fraud or misprepresentation, sells goods to defrauder, and defruader sells to BFP; or 3) Owner expressly/impliedly represented possessor has authority to sell, BFP relies |
| Distinguish abandoned property from lost property | LOST: owner accidentally gives up possession with no intention of relinquishing title/control ABANDONED:owner voluntarily relinquished ownership - requires both voluntary act and intention to relinquish ownership and control All presumed to be lost. |
| How is ownership of abandoned personal property acquired? | Title to an abandoned chattel is acquired by: (i) actual or constructive control or dominion; and (ii) intent to assert ownership over it |
| How is property with value under $20 transferred? | A finder of lost property of less than $20 in value must make reasonable efforts to find the owner and restore the proeprty. If unable to do so, title vests in finder after 1 year of finding. |
| How is property with value over $20 transferred? | Finder, who knows property is lost, must return to owner or deposit with police within 10 days. The time period for which the police must hold property is dependent upon value of property. If no adverse claims, after statutory time, title vests in finder. |
| What happens if several people find property? | If several people participate in a finding, they are joint finders with equal rights in the property found. |
| Define adverse possession of personal property: | Title to personal property by adverse possessions results from the running of a statute of limitations, which requires cause of action for recovery of the property to be brought within a specified period after it accrues. |
| Define accession | The addition of value to property by the expenditure of labour or addition of new material. |
| What right does a wilfull trespasser have in an augmented chattel? | A willfull trespasser who augments the value of property cannot gain ownership rights in the chattel. |
| What rights does an innocent trespasser have in augmented chattel? | Innocent trespasser may acquire title where: -the property has been completely changd by the adition to the property; or - where the augmentation in value is so great that it would be unfair to permit the original owner to reclaim her property. |
| How is title determined in cases of innocent confusion (intermingling of goods)? | If amount contributed is known: parties are tenants in common of the mass in proportion to their respective interests (regardless of fraud etc) If innocent confusion and amounts not known: owners tenants in common equally of mass |
| How is title determined if confusion results by virtue of wrongful or negligent act of one of the owners? | If amounts known - still tenants in common in propertion to respective interests If amounts not known: the burden is on wrongful party to identify her portion. If can't do so, entire mass belongs to innocent owner. |
| Distinguish remedies of replevin, tresspass and trover | Replevin: action to recover chattel itself Trespass: action to recover money damages incurred by reason of dispossession Trover (conversion): forced sale to recover the value of chattel as well as damages for dispossession |
| How does title pass in cases of conversion? | When satisfaction of the judgment has occurred, title to the coverted property passes in favour of the defendant, and it relates back to the date of conversion (therefore if property destroyed after conversion before satisfaction, loss falls on converter) |
| Distinguish a gift and a promise to make a gift: | Gift requires intent to make immediate gift, acceptance by donee & delivery. A gratuitous promise to make a gift in the future is not binding because lacks consideration, but a gift, once made, is binding and cannot be withdrawn by the donor. |
| When is an inter vivos gift delivered personally valid? | Depends on delivery of property to donee: - Checks or notes: when check or note is cashed. If 3P check being gifted, delivery is valid when given, even without endorsement (and can't be revoked). Stock certificates - when given, not when recorded |
| When are inter vivos gifts delivered through agents valid? | Delivered through donor's agent - when given to donee. Delivered through donee's agent: when given to agent. (consider who controls the agent) |
| What is the law with respect to gifts in contemplation of marriage? | Engagement gifts (e.g. wedding ring) are conditional upon marriage taking place. If marriage doesn't occur, engagement gifts must be returned. |
| How do gifts causa mortis transfer? | Delivery and acceptance are required. Delivery to agent does not complete the gift. At time of gift, donor must have immediate and present fear of death (actual cause can be different to feared cause). Gifts causa mortis are revocable. |
| When are gifts causa mortis automatically revoked? | Automatically revoked by donor's recovery or by donee's death. |
| How is a gift challenged as induced by fraud? | Fraud generally must be proved by party seeking to relieve himself of obligation on that ground. BUT transaction presumed void when virtually certain parties did not deal on equal terms. Then stronger party must show no deception, no undue influence etc. |
Created by:
gdunphy