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Virginia Bar Exam > Personal Property > Flashcards

Flashcards in Personal Property Deck (39)

What is real property?

All land and its improvements


What is personal property?

All property that is not real property


What are the categories of found property?

  1. Abandoned property
  2. Lost property
  3. Mislaid property


When is property abandoned?

If the owner has voluntarily given up possession with the intent to give up title and control


If someone finds abandoned property, doe they have rights in it?

Yes, if the finder has possession with the intent to assert title and control


Who are the people who will fight over lost or mislaid property?

  1. The finder
  2. The owner of the land where it was found


What is lost property?

The owner's parting with the property was both:

  • Accidental
  • Involuntary


What is mislaid property?

Found property where the owner has taken some voluntary act in placing it down, and the owner leaves it behind


If property is mislaid, who gets to keep it? The finder or the owner of the land where it was found?

The owner or occupier of the land where it was found


If property is lost, who gets to keep it? The finder or the owner of the land where it was found?

The finder, unless:

  1. If the finder is a trespasser, the owner/occupier prevails
  2. If the finder is a servant of the owner/occupier, the owner/occupier prevails
  3. If the lost property is found in a highly private venue that is not open to the public, the owner/occupier prevails
    • E.g., home or office


What does a gift do?

It passes title


What are the different kinds of gifts?

  1. Inter-vivos (i.e., while alive)
  2. Causa mortis (i.e., made in contemplation of death)


What are the requirements for a valid inter-vivos gift?

  1. Donative intent
  2. Valid delivery
  3. Valid acceptance


What are the key points regarding donative intent for an inter-vivos gift?

  • Easier to find when donor and donee are in a close relationship
  • Must be the intent to pass title, not mere possession


What are the key points regarding valid acceptance of an inter-vivos gift?

  • It may be implied by silence
  • The only way it isn't found is if there is an explicit rejection, either by:
    • Words
    • Acts


If the recipient of an inter-vivos gift explicitly rejects, but still retains possession, what should the grantor do?

Bring an action for detinue - i.e., to recover for the wrongful taking of personal property


What are the key points regarding valid delivery of an inter-vivos gift?

Sufficient delivery includes:

  • Physical delivery
  • Donee is already in possession
  • Delivery of a representative object of the gift


When a donor makes out a check or a promissory note to a donee and hands it to the donee, does that satisfy the delivery requirement?

No. Delivery does not occur until:

  • The check is cashed
  • The note is paid

If it's the donor's instrument, delivery when cash received


When a donor takes a check or a promissory note that is made out to the donor by a third party, and hands it to the donee, does that satisfy the delivery requirement?

Yes. Even if the donor has not endorsed the check or note to the donee.

If it's not the donor's instrument, delivery immediately


When a donor hands a donee a stock certificate, is this a valid delivery?

Yes. Even if:

  • The donor has not endorsed the stock over to the donee
  • The donor has not informed the corporation of the transfer


If a donor delivers a gift to the donee using a middlement (i.e., agent), when is the gift delivered?

If the middleman is donor's agent:

  • Delivery is not until the donee receives the gift

If the middleman is donee's agent:

  • Delivery is immediate


If the facts are not clear as to whether the middlement delivering a gift is the donor's or donee's agent, what should you do?

If donee is an adult:

  • Assume the middleman is the donor's agent, and therefore delivery is not satisfied until the donee receives the gift

If donee is a minor:

  • Assume the middleman is the donee's agent, and therefore delivery is satisfied immediately


What are the requirements for a valid gift causa mortis?

  1. The donor must face a fair degree of certainty that death is imminent
  2. The gift must not be revoked


How can a gift causa mortis be revoked?

  1. Donor simply revokes before death
  2. Donee predeceases donor
  3. Donor recovers - i.e., does not die

Note: so long as the donor dies, the gift is valid, subject to the restritions above - it does not matter whether the death is related to the reason the donor made the gift


What is a bailment?

When a person takes custody of chattel with intent to serve as a bailee as to the particular chattel, and anything it would usually include


Are safe deposit boxes bailments?

Yes, even though the bank usually has no idea what's in the box


How do you determine whether a car is bailed in a parking lot or garage?

If the attendant takes the person's keys:

  • Bailment

If the person keeps their keys:

  • No bailment


If chattel that is bailed becomes damaged, destroyed, or missing, when is the bailee liable?

What is the traditional approach?

What is the modern approach?

Traditional approach:

  1. If the bailment was for the sole benefit of the bailor
    • Bailee liable only for gross negligence
      • E.g., fixing a watch without charge
  2. If the bailment was for the sole benefit of the bailee
    • Bailee liable for even slight negligence
      • E.g., letting someone borrow your watch
  3. If the bailment was for the mutual benefit of the bailor and bailee
    • Bailee liable if he does not exercise ordinary care

Modern approach:

  • Apply ordinary care standard in all situations


When is a bailee strictly liable for damage, destruction, or loss?

  1. Bailee engages in unauthorized use
  2. Bailee misdelivers chattel to the wrong person, even if based on forgery
    • Exception:
      • If someone in a parking garage presents a valid ticket, bailee is not strictly liable


Can a bailee limit his liability for damage to the chattel?

Yes, but:

  • Only for ordinary negligence (i.e., not gross, reckless or intentional conduct)
  • Provided that:
    • Bailor received notice of the limitation


Is a bailment included in the bailee's bankruptcy estate?

No. Bailed items remain property of the bailor.


What is a common carrier?

What are the requirements to be one?


  • Someone who undertakes for hire to transport persons or goods from place to place


  1. Must be a holding out to perform the service to all who apply
  2. Service must be for hire
  3. Service must be for carriage


When is a common carrier liable for damage or loss?

Anytime, unless:

  1. Damage or loss was due to act of nature
  2. Damage or loss was due to fault of shipper
  3. Damage or loss was due to good being perishable


One who does not have title to goods cannot pass title to even a bona fide purchaser, except in the following circumstances:

  • Through money and negotiable instruments
  • When the owner intended to transfer title
  • When the owner represented that the possessor has authority to sell


What is treasure trove?

Who does it belong to according to common law?

Treasure trove is any gold or silver in coin, plate, or bullion found concealed (e.g., in the earth, in a house, in a bureau, etc.), the owner of which is unknown.

Treasure trove has been held to include paper representatives of gold and silver.

Treasure trove, according to the common law, belongs to the finder as against everyone in the world except the true owner.

In addition, the fact that the finder was a trespasser would not deprive him of his possessory rights.


The burden of proving that a gift has been made is on the donee, who must establish donative intent and delivery of the subject of the gift:

By clear and convincing evidence


Which type of gift delivery occurs when a donor hands over some object other than the gift itself, even if the subject matter of the gift was capable of being manually or physically transferred?

Symbolic delivery

Note: Constructive delivery occurs when it would be impossible or impracticable to manually deliver an item because of its size or location.


What is constructive bailment?

It is an involuntary bailment that arises by operation of law in a few situations where the agreement of the parties is implied.