Personal Property
I.
GENERAL STUFF
A. Definitions
1.
“Personal property” = all “property” that is ________________
2.
“Goods” = ____________ personal property
3.
“Intellectual property” = rights under laws relating to results of
intellectual efforts (copyright, patent, trademarks, etc.)
4.
“____________ property” = not attached to a physical object
B. Importance
1.
Historically, real property has been more important and valuable
because it could be used to produce useful things
2.
More recently, intangible personal property has become more
valuable
a. Intellectual property
b. Corporate shares, bonds, and similar rights
c. ?? Cyber-property ??
II.
KEY FACTORS/ISSUES RE PERSONAL PROPERTY
A. Absence of Title Documentation
1.
Each parcel of real property has a distinct legal description that does
not change and it stays in one location
2.
Personal property:
a. Is generally _______________
b. Is generally not uniquely identified in transactions
c. Often has no physical existence
d. Is generally not subject to title-registration requirements
B. Importance of Possession
1.
Common saying = “Possession is 9/10ths of the law.”
a. _________________ concerning ownership of goods
b. If no other evidence, physical possessor is assumed to be the owner
c. Person NOT in possession has the burden of ________________
2.
Passing title requires “delivery of [legal] possession”
a. “Possession” in this context means exclusive power to control
b. One may have _________________ without having legal possession
C.
Many things done with personal property require delivery
of physical possession
1.
Moving items from one location to another
2.
Repairing items
3.
Temporary physical possession for owner’s convenience
D. When an item is physically given to another, without more information, the legal result is uncertain. Some possibilities:
1.
Sale or other compensated _____________________
2.
Lease or use rights for some period
2.
Gift
3.
Unintentional change of possession (lost, mislaid)
4.
________________ possession then return/delivery elsewhere
(“bailment”)
III. DELIVERY and INTENT
A.
Legal “delivery” (See text re “gift”)
1. Transfer of legal possession requires surrender of ___________
_______________ to the recipient (or recipient’s agent)
a. Transferor who retains ability to control does not “deliver”
b. Transferee _____________ have physical possession of the item
(Intangible property cannot be physically possessed.)
2. Transfer can be actual/physical, symbolic, or other, e.g.
a. _________________________ = giving all the keys to a car, title
document, etc.
b. By instructing someone to hold for another (e.g. calling stock
broker, depositing in transferee’s bank account)
B. Gifts
1. During grantee’s lifetime, delivery must be complete before gift
is effective (i.e. before title passes)
a. Donee must have actual ability to control item – exclusive of donor
b. Gift may be “conditional” (rare – see gift causa mortis)
(1) Actual delivery still required
(2) Gift may fail if condition does not occur
2. Gifts at or after death can only be accomplished ________________
a. Oral promises to “give” “when I’m gone” are ineffective without:
(1) Delivery during life, or
(2) Valid will
b. Validity of will depends on local (state, country) law
3. If there is some question about prior owner’s intent, law looks at:
a. ____________________ between donor, donee
(Where one might reasonably expect gifts?)
b. _______________________________ physical delivery
C.
Lost, Mislaid, Abandoned
1.
Property does not appear to be in anyone’s possession
2.
Key to status is the _________________________ at the time the item left
her/his physical possession (actually unknown)
3.
“Mislaid” vs. “Lost”
a.
b.
c.
d.
“Mislaid” item is “found” in a location and circumstance such that
it is likely that the owner _______________________, then forgot it
“Lost” item is found in a location and circumstance such that it is
likely that the owner ______________________________________
Mislaid items can be possessed by the owner of the property
where found (involuntary bailee)
Lost items can be possessed by the finder
4.
“______________” items are things that the prior possessor has indicated
an intent not to claim ownership (occurs instantly when intent
demonstrated)
5.
“Estray” statutes are intended to fix legal title when a reasonable
time has passed and efforts to locate the prior owner fail
D.
Bailment (Something we all do quite often, but do not think about rules)
1.
Involves tangible personal property
»
May expand to “property” in electronic form
2.
Elements:
a.
b.
c.
3.
________________ of possession of personal property by owner
To person who accepts
With an agreement that the item __________________________
to a third person at owner’s instruction
It is NOT necessary that there be a contract between the parties
E.G. Loaning another student a textbook, “Dog-sitting” while owner
is away from home (without compensation)
a.
The legal relationship and obligations of bailment apply, without
regard to whether there is a contract
b.
If there is a contract, it may modify or qualify the “normal”
bailment rules
c.
Breach of the contract _________________ terminate bailment,
and breach of bailment agreement may/may not breach contract
4.
Obligations of bailee
a.
Bailee has obligation to perform contract, if any
b.
Bailee has an obligation to _____________________ to
protect and preserve item and return or deliver as
agreed/directed (negligence standard)
NOTE: Text distinguishes level of bailee’s
obligation based on which party “benefits” from
the bailment. Better to use “reasonable care
under the circumstances”, with “benefit” being
one of the circumstances
c.
If item is not returned, or is returned damaged, there is a
___________ that the bailee ____________ caused problem
(1)
Bailee has burden of proving it was not negligent
(2)
_______________________ to prove a negative
E. Two Terms of Interest
1.
2.
“Reimburse” or “Reimbursement”
a.
An agreement or obligation to restore funds used for the
benefit of, or at the request of, the obligated person
b.
Example: Agent uses personal vehicle to do work for
Principal, Principle pays Agent the cost of that use
c.
Example: Student A purchases textbook for Student B, at
Student B’s request; Student B gives Student A the money
spent for the book
“Indemnify” or “Indemnification” or “Indemnity”
a.
An agreement to be responsible for debts incurred as a
result of activity on behalf of obligated person, or as a
result of prior contract (e.g. insurance)
b.
Example: Corporate officer sued for responsibilities or
acts taken as officer; corporation indemnifies
E.
Special Bailees
1.
Innkeepers.
a.
b.
2.
Original reason for rules no longer exist (Inn as a fortress
in wild forest)
Most states allow innkeepers to avoid rules by posted notice
Warehousemen – generally subject to normal bailment rules
a.
Statute allows a ___________________________________ under
specific conditions
b.
Must make it possible for the bailor to “increase” limitation
amount (at a higher storage rate)
c.
“Mini-storage” places are very careful to _________________
(1) Contract specifically provides that only renting space
(2) Storage owner has very limited, or no, access to
storage area
3. Common carriers (most important category) – NOT contract carriers
a. “Contract carrier” is a company that hauls for particular shipper(s)
(1)
(2)
Obligations there are based solely on contract
Not of particular concern to general public or regulators
b.
Common carrier is a transportation company that transports things
for any person or company (in U.S., must have government permit)
c.
Common carrier is a bailee BUT is excused from bailee liability,
________________________ causes the non-delivery or damaged
delivery (and not negligent – same as other bailees)
(1) Act of _________
(2) Act of a ________________
(3) An order of a public authority
(4) An act of _________________
(5) The _________________ of the goods