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 ofintellectual 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 propertyb. Corporate shares, bonds, and similar rightsc. ?? 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 transactionsc. Often has no physical existenced. 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 goodsb. If no other evidence, physical possessor is assumed to be the ownerc. 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 controlb. 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 informa-

tion, 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 donorb. 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. “Mislaid” item is “found” in a location and circumstance such that it is likely that the owner _______________________, then forgot it

b. “Lost” item is found in a location and circumstance such that it is likely that the owner ______________________________________

c. Mislaid items can be possessed by the owner of the property where found (involuntary bailee)

d. 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 intentdemonstrated)

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. ________________ of possession of personal property by ownerb. To person who accepts c. With an agreement that the item __________________________

to a third person at owner’s instruction

3. It is NOT necessary that there be a contract between the partiesE.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 asagreed/directed (negligence standard)

NOTE: Text distinguishes level of bailee’sobligation based on which party “benefits” fromthe bailment. Better to use “reasonable careunder the circumstances”, with “benefit” beingone 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. “Reimburse” or “Reimbursement”

a. An agreement or obligation to restore funds used for thebenefit of, or at the request of, the obligated person

b. Example: Agent uses personal vehicle to do work forPrincipal, Principle pays Agent the cost of that use

c. Example: Student A purchases textbook for Student B, atStudent B’s request; Student B gives Student A the

moneyspent for the book

2. “Indemnify” or “Indemnification” or “Indemnity”

a. An agreement to be responsible for debts incurred as aresult of activity on behalf of obligated person, or as a result of prior contract (e.g. insurance)

b. Example: Corporate officer sued for responsibilities oracts taken as officer; corporation indemnifies

E. Special Bailees

1. Innkeepers.

a. Original reason for rules no longer exist (Inn as a fortress

in wild forest)b. Most states allow innkeepers to avoid rules by posted

notice

2. 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) Obligations there are based solely on contract(2) Not of particular concern to general public or regulators

b. Common carrier is a transportation company that transports thingsfor 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 damageddelivery (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