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Week 7 Flashcards

(103 cards)

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1
Q

Is valet parking a bailment

A

Yes
(1) garage has keys
(2) garage moves the cars
(3) implicitly expected to watch over garage

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2
Q

Is open air parking lot with meters a bailment

A

No just a license
(1) car owner keeps the keys
(2) lot doesn’t move cars nor watch over the cars very much

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3
Q

The Hyatt garage is somewhere between ____ because ___

A

license/bailment, owner keeps key and doesn’t move cars BUT maybe expectation of watching over because entrance/exit controlled and occasional security patrols

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4
Q

Allen majority approach to determine bailment

A

determine which is closest precedent (valet, open air meters)

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5
Q

New Jersey approach to determine if bailment

A

case by case inquiry into which party best able to control losses and spread costs

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6
Q

Allen dissent test to determine bailment

A

if complete transfer with bailee acceptance

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7
Q

Allen says a bailee’s duty of care may be determined ___

A

by statute

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8
Q

Allen says implied bailment created when __

A

operator assumes practical control and custody of the vehicles

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9
Q

Allen holds that ___

A

Hyatt was a bailee so under presumption of bailee negligence liable for the theft

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10
Q

Allen ignores waiver of liability because __

A

can’t be expected that consumer spend time comparing different parking garage contract offerings

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11
Q

Cowen says that a voluntary bailee has an __

A

absolute duty to deliver the bailed property to the correct bailor

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12
Q

Cowen also says that as soon as involuntary bailee ____ then she ___

A

exercises overt act of dominion over bailed property, effectively becomes voluntary bailee

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13
Q

There tends to be a lower standard of care for ____ bailments rather than ___ bailments

A

lost/stolen/destroyed, misdelivered

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14
Q

Cowen says an involuntary bailee owes __ and is not ___

A

minimal standard of care to TO, SL for misdelivery

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15
Q

Cowen overturns lower court that finds bailment only arises through ___ and involuntary bailee does not ___

A

express or implied agreement, aboslute duty to return to TO

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16
Q

Lehman requires ____ to take custody of bailed item

A

specific intent

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17
Q

Cowen says even involuntary bailees still have duty to __

A

not misdeliver the item

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18
Q

Winkfield says that bailee can sue third party for loss even if ___

A

would not be liable to the bailor

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19
Q

Under Hadley, bailee responsible only for ___ BUT ______ to third party tortfeasor

A

foreseeable damages, seems not to apply

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20
Q

Winkfield held that postmaster could ___ even though ___

A

recover full value of the goods, would not be liable to postal customers under sovereign immunity

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21
Q

Winkfield reasoning

A

wrongdoer should be unconcerned by rights between bailor/bailee and must treat possessor of goods as the owner

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22
Q

The postal customers in Winkfiled could sue for ____ because ___

A

unjust enrichment if not distribute award, restitution not barred under sovereign immunity

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23
Q

Generally, we expect that ___ is a check on abandonment and destruction

A

self-interest (assumes rationality)

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24
Q

Some justifications for letting people do stupid things with their property

A

autonomy
experimentation
difficulty of judging subjective values

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25
The most serious problem with abandonment is ___
creation of negative externalities (litter, pollution)
26
Ways to dispose of property
sales gifts abandonment destruction
27
Sales has ___ transaction costs and ____ social costs
high (locating and negotiating with buyer), low (both parties better off)
28
Gift has ___ transaction costs and ___ social costs
low (no negotiation), unclear (may accept gifts even if doesn't make them better off)
29
Abandonment has __ transaction costs and ___ social costs
low, could be high (litter) or could be low (taken by someone who puts positive value on it)
30
Destruction has __ transaction costs and ___ social costs
low, high (loss of thing that could have value to someone else)
31
Generally abandonment is ____ than destruction
more favorable
32
You can generally abandon __ but not ___
personal property, real property in fee simple
33
Abandonment requires ___ and ___
intent to abandon (convention), overt act demonstrating intent
34
what is abandonment
leaving item behind with no intent to retain possession
35
Pocono holding
MacKenzies didn't abandon property because real property cannot be abandoned
36
What did MacKenzies try to do before "abandoning"
turn over to appellee who refused give lot as gift to community but declined notarized statement of abandonment stop paying taxes and county offered for sale
37
One can generally destroy property when ____ but not ___
alive, dead
38
Eyerman holding
razing the home (as requested under the will) would contravene public policy
39
Eyerman says that taking of property by inheritance is not ____ but ____
absolute/natural right, one created by the sovereign
40
Eyerman says that because taking of property by inheritance is one created by sovereign the sovereign has___
power to control what becomes of property once owner dies
41
Eyerman reasoning
(1) sovereign power (2) high historical significance (3) demolition would depreciate adjoining homes (4) cost of replacing destroyed home high
42
Multiple interests in a resource is generally avoided by property because ____ but can be overcome to ___
creates complexities, benefit from shared ownership (specialization, risk spreading)
43
Fee simple is ____ and goes to ___
indefinite in time, owner's successors
44
Language for fee simple
To A To A in fee simple (historically) To A and her heirs
45
Life estate ends with ___
death of named person
46
Life estate language
To A for life
47
If a life estate is sold, the purchaser receives ___
life estate (according to seller's life)
48
Possible future interests in life estate
reversion (if back to owner) Remainder (if designated to specific person after, to M for life then to L)
49
What is fee simple determinable
ends upon occurrence of named event
50
Example of fee simple determinable
To A so long as Blackacre used for law instruction then to O
51
what is future interest in fee simple determinable
possibility of reverter (back to grantor)
52
What is fee simple subject to condition subsequent
ended by action by grantor (self-help, lawsuit) upon happening of named event
53
Fee simple subject to condition subsequent example
To X, but if not used for instruction in the law then O right to reenter and take premises
54
Difference between fee simple determinable and fee simple subject to condition subsequent
durational language (so long as, while, during) VS. conditional language (provided that, if , on the condition)
55
There is a preference for fee simple subject to condition subsequent over fee simple determinable to ___
disfavor forfeitures (automatic vs. grantor taking action)
56
Future interest in fee simple subject to condition subsequent
right of entry/power of termination to the grantor
57
what is fee simple subject to executory limitation
defeasible fee followed by an interest not reserved to the grantor
58
fee simple subject to executory limitation example
to A so long as Blackacre used for instruction in the law then to B
59
what is the future interest in fee simple subject to executory limitation
executory interest (for third party not the grantor)
60
fee simple subject to executory limitation interest is automatically __
cut short by executory interest upon happening of named event
61
Remainders follow ___
life estates
62
Indefeasibly vested remainder means that the __
identity of takers known + no other contingencies must be fulfilled before interest ready to become possessory other than natural termination of preceeding interest
63
Indefeasibly vested remainder example
M grants Blackacre to H for life then to B and their heirs
64
example of contingent remainder
M grants Blackacre to H for life then to his children and their heirs OR M grants Blackacre to H for life, then to B if graduates from high school by 19
65
Vested subject to complete divestment remainder example
M grants Blackacre to Homer for life, then to B but if B fails to graduate then to L
66
Vested subject to partial divestment remainder example
M grants Blackacre to H for life then to his children and their heirs B&L alive but X not yet, B&L class subject to pen because more members could enter the class
67
what is an executory interest
interest in a transferee not retained by the grantor that divests or cuts short previous interest
68
Conservation of estates rule
all of what grantor had must be accounted for (typically means last interest is fee simple absolute)
69
Courts favor will interpretations that avoid __
intestacy
70
Will interpretation rules
blend of formalism + testator intent
71
Courts take a less formalistic approach when interpreting ___ wills (__)
holographic (will entirely handwritten by testator and not attested to by witnesses)
72
Most modern life estates are ___
created in trust
73
Williams says that where a testator's intent is ambiguous, provisions of will conveying property are ___
interpreted by predominant intention demonstrated in the document as a whole
74
Williams held that the will manifested his intent to ____
grant each of three daughters life estate defeasible upon marriage. (reversion in fee simple)
75
Williams reasoning
only intended to support three named daughters during their lives
76
Numerus clausus means ___
closed and finite number of forms of property so new forms of ownership cannot be created
77
Under numerus clausus, courts try to __
fit interests into pre-existing boxes
78
What is purpose of numerus clausus
reduce third party info costs for people looking to buy property
79
Charles says that where a testator wills an idiosyncratic conveyance of property, her intent is to be interpreted so __
fits into enumerated property interests that the law allows
80
Charles held that Mrs. Charles' intent could be interpreted as __
granting life interest in part of the property to her nephew and remainder in fee simple to her niece
81
Rules of public policy may influence ___
question of will construction
82
Most disputes about waste are now handled by __
K or trust
83
what are the three types of waste
affirmative, permissive, ameliorative
84
what is affirmative waste
misfeasance, life tenant takes some affirmative act that is unresaonable and casues excess damage to reversionary/remainder interest
85
Any ___ can be affirmative waste
abnormal
86
Open mines doctrine says if mines are ___ but if not extraction is affirmative waste
already in use extraction ok
87
what is permissive waste
nonfeasance, failure to act is unreasonable and causes excess damage to future intereests
88
ameliorative waste
tenant significantly changes the property resulting in increased value
89
Traditional/minority view of ameliorative waste
Brokaw, type of affirmative waste and not permitted
90
Flexible/majority view of ameliorative
Melms, good faith mistake + neighborhood changes so much to make dwelling house undesirable
91
Posner approach to ameliorative
wealth maximazation
92
OG only those holding ___ had standing to sue for waste but over time allowed ___
indefeasibly vested remainders/reversions, contigent remainders, executory interests etc
93
Brokaw says that the holder of a life estate commits waste through any act that ___
permanently and materially alters what the remainderman inherits
94
Brokaw held that the P was not ___
authorized to remove the mansion even though would increase value of property
95
Brokaw rationale
Decedent wanted residence to pass not just the land
96
Almost any attempts to _____ will be held void as contrary to public policy
directly restrain alienation
97
Courts will uphold restraints on alienation for a limited period time if ___
related to some family planning objective (until minor reaches age)
98
Justifications for limiting restraints on alienation
owner autonomy efficiency don't like dynasties alienation primary way of changing assignment of responsibility for managing resources
99
Toscano says that a condition in the deed that restricts use of property ____
is not a restraint on alienation
100
Toscano dissent saus that since the use clause __
had same legal result as restraint on alienation it should be held void
101
Toscano holds that the portion of the deed prohibiting sale was ___ but was ____
void as restraint on alienation, separable from use condition which created fee simple subject to condition subsequento
102
Toscano reasoning
avoid automatic forfeiture + promotes charitable giving
103

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