Term
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Definition
| Physical custody and intent to control |
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Term
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Definition
| Prior possession can defeat current possession. Prior possessory right is stronger. |
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Term
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Definition
| Custody, intent to control, and exclusive possession of a good. |
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Term
| Proving intent to control |
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Definition
| Look to conduct and words for evidence of intention |
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Term
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Definition
| Legal possession, although not physical possession |
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Term
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Definition
| Voluntarily relinquishing something, with intention to renounce title, and with no intention to reclaim title |
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Term
| Who owns an abandoned good? |
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Definition
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Term
| Onus of proof of abandonment |
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Definition
| The new possessor is responsible to prove that the chattel is indeed abandoned |
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Term
| Finding abandoned property |
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Definition
| One can take possession of abandoned property by taking custody of the item, and intending to possess it. |
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Term
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Definition
Chimney sweep boy finds jewel.
The finder of a jewel has more rights than anyone but the rightful owner. |
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Term
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Definition
| The finder's right to property is inferior to those with subsisting claims, but superior to claim's that come after it. The first finder has antecedent claim. |
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Term
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Definition
| A sock full of money is found by five boys. Each boy had control of the sock at some point, but never at the time had concurrent intent to possess the sock. The court decided the money was to be split five ways. Control and intent must be concurrent. |
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Term
| Is absolute physical control necessary? |
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Definition
| No. By actions and words you can take control of something. |
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Term
Parker v. British Airways
Rights of the Finder |
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Definition
1. Finder has no rights unless object is lost, and the finder takes it into his care and control.
2. Limited Rights if he takes control dishonestly, or by trespassing
3.Finder has the right to keep the property, unless the true owner takes it or one with an antecedent claim.
4. An employee who finds a chattel does so on behalf of his employer
5. A finder has an obligation to do everything possible to find the true owner. |
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Term
Parker v. British Airways
Rights of the Occupier |
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Definition
1. Rights superior to those of a finder, if the chattel is under or attached to the building, regardless if the occupier knows of its existence
2. Rights superior is the occupier has a manifest intention to exercise control over the building, express or implied.
3. Responsibility to do everything possible to find owner, and liable to accept liability for what is on his premises
4. Occupier of ship, car, plane etc. similar to that of a building. |
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Term
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Definition
| Soldier in make-shift hospital finds broach on window sill. Soldier keeps broach as true owner of land had no manifest intention over the property. |
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Term
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Definition
| Police officer, found a duffel bag in garbage full of money. Found it when he was not in the course of his employment, so was able to keep the money. |
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Term
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Definition
| Plaintiff found pump lying on land. Was able to keep pump, as the good was on top of land, and in view from highway. Defendant did not know of pump's existence. |
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Term
| Three elements of perfectly constituted gift. |
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Definition
1.) Intention to donate
2.) Acceptance
3.) Delivery |
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Term
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Definition
| Tangible proof of a gift. The physical transfer of a possession from doner to donee. May be actual physical possession, or constructive possession. |
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Term
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Definition
| Gifts of the living. Needs intent to give, sufficient mental capacity, acceptance, and delivery. |
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Term
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Definition
| Gift between father and son of a horse, failed for lack of proper delivery. |
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Term
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Definition
| Barge between father and son. Son acted as owner after promissory words, so the court recognized constructive delivery. |
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Term
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Definition
| Aunt promised niece dishes after she died. Gave her one dish. Court found prior custody of a part can show intent for delivery of the whole. |
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Term
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Definition
| Wine promised from father to daughter insufficient delivery, as it was still under fathers control. No gift if its a future gift. |
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Term
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Definition
| Transfer of legal possession. Can be manual, or if item to large, constructive. |
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Term
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Definition
| Mrs. Ratley's father made a deal with his son in law's creditors, and then gave the daughter the furniture. Verbal gifting was deemed sufficient, as the daughter had prior custody of the furniture. Possession satisfied delivery, as well as words acknowledging gift. |
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Term
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Definition
| Church organ given by constructive delivery when giving inditia of title. Later put his hand on organ to solidify delivery. Expands delivery to include constructive delivery. |
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Term
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Definition
| Piano given as birthday present while she was living at fathers house. She moved out, left piano, and father sold it. Not fathers to give. She had legal title by gifting of piano. Nemo dat. You do not give up legal title to something just because you do not have custody of it. |
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Term
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Definition
| Bankrupt man allegedly transfers deed to wife. No legal gift, as not sufficient delivery of title. Clever business man, he would have known how to transfer title legally. |
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Term
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Definition
1. Gift must be made in contemplation of death
2. Delivery
3. Gift will revert to original owner if doner does not die. |
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Term
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Definition
| Mom v. widow. For an effective donatio mortis causa the gift needs to be made in contemplation of death, effective delivery, and the gift only takes place if the doner dies. Mom gets the money. |
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Term
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Definition
| Farmers. Uncle gave nieces deed to farm before death. You do not have to die of exact illness contemplated for a DMC to be effective, and you do not have to completely divest yourself property. |
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Term
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Definition
| A man with a fear of flying promises car to gf before flight, but does not die on flight. Later dies of a heart attack, and the gf claims the car was a DMC. Court does not allow this, as the DMC needs to be made in contemplation of a proximate death. |
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Term
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Definition
| A man signed on the back of promissory notes, that they were to go to his housekeeper after he died. Court holds not an effective DMC as it was not made in direct apprehension of his death. Labadie only in possession as an agent. Doner must be in extremis at time of making gift. |
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Term
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Definition
| Deceased's great niece looked after her. Deceased promised an envelope of money to the niece when she was in hospital. Valid DMC, reigns in the in extremis clause. If one subjectively thinks they will die they can make a DMC. Doner's state of mind important, not actual circumstance's |
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Term
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Definition
| Transfer of legal possession - delivery of personal property to bailee temporarily, for a specific purpose, to be returned. |
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Term
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Definition
| The bailee is liable to the owner of the goods to use care when handling bailment, even if not being paid. |
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Term
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Definition
| High standard of care, even slight negligence makes you liable |
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Term
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Definition
| Still a duty of care owed, but the standard is lower. Liable for gross negligence. |
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Term
| Who has to prove that bailment existed? |
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Definition
| Bailor. Must prove possession and custody has transferred. |
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Term
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Definition
| Once the bailor has proved there was a bailment, and there was a loss, damage, or failure to return, the bailee must prove this was not due to their negligence. |
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Term
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Definition
1. They met the standard of care
2. What happened was not due to their negligence, but another cause
3. Standard of care not met, but an exclusionary clause protects them. |
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Term
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Definition
| Limits liability, read down against the drafter of the clause. |
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Term
| Crawford v. Kingston and Johnston |
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Definition
| Verbal agreement for the care of cows. Court holds the locus of title passed. Once locus of title passes you are the owner, not the bailee. |
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Term
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Definition
| Physical possession, and legal control |
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Term
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Definition
| Plaintiff must show possession of the car transferred to the defendant. Courts look to who has keys/control, was a ticket used to identify the car, attendant, could plaintiff get car without attendant, did loss occur when attendant had control of the car? |
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Term
| Palmer v. Toronto Medical Arts Building |
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Definition
| P left keys with attendant in parking lot next to medical arts building. Attendant was to leave keys in car. No card, charge, or ticket system. Attendant gone after doctor appt, and so was car. The medical art bulding D had no bailment relationship, no custody of medical arts building of car at any point. |
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Term
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Definition
| P left car in D's car park. Car stolen. Court holds it was a licensee relationship, which has no obligations towards chattel. Possession never transferred, so not relationship of bailment. |
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Term
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Definition
| Grant of authority that one can enter land for a purpose, where it would otherwise be trespass. Legal effect to preclude bringing an action for trespass. |
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Term
| Heffron v. Imperial Parking |
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Definition
| P left car and keys in lot, car stolen. Notice on parking ticket, and signs in lot denying responsibility for theft or damage of goods. Exculpatory clause does not relive you if fundamental breach. |
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Term
| Martin v. Town 'n'Country |
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Definition
| P goes to sadie hawkins at restaurant. Attendant offers to park car, car stolen. No bailment as restaurant had no control over car. Plaintiff never gave up control of car. |
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Term
| Martin v. Town 'n' Country dissent |
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Definition
| Physical possession was taken by employee, as they had keys. Keys = delivery. Restaurant guilty of gross negligence. |
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Term
| Samuel Smith & Son v. Silverman |
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Definition
| P's secretary took company Cadillac to the theater. Found damage occurred while in parking lot. Bailment situation, attendant was negligent, but there was a clear exculpatory clause. Constructive knowledge of exculpatory clause as there was signs and it was on the ticket. Clause excused liability. |
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Term
| Bata v. City Parking Canada |
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Definition
| Parking lot charged fee, ticket given, and keys left with an attendant, but there was a clear exculpatory clause which made it a licensee relationship, not bailee. |
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Term
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Definition
| Oldies go on vacay by luxury bus. bus breaks down. Luggage lost in transfer from one bus to the next, and court finds RR Low liable due to them not meeting the appropriate standard of care. Standard of care must be of how a reasonably prudent person would treat their own chattel in like circumstance. |
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Term
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Definition
| Ring being repaired by one bailee sent to sub bailee. Head bailor can remedy directly to sub-bailees, right to sue directly |
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Term
| Defense in Punch of business standards |
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Definition
| Did bailor know of standard? If did not know standard they are not bound by it. Standard is not absolute proof that they were not negligent. |
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Term
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Definition
| Exclusion clauses may still be given effect even if fundamental breach |
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Term
| What if the bailor does not know about the exclusion clause? |
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Definition
| Then they are not bound by it. But even if they are not actually aware of it, they may be constructively bound. |
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Term
| Morris v. C.W. Martin and Sons: |
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Definition
| The bailee is liable for theft of employee, if done in the course of employment. If the employer entrusts a duty to an employee the employer is answerable to how an employee conducts himself. |
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Term
| Letourneau v. Otto Mobiles Edmonton |
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Definition
| Trailer stolen after being parked on adjacent lot to Otto's, as per employees instruction. Bailment established as they put trailer and keys were employee said to. Failed to meet standard of care of a prudent man. Clause n/a |
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Term
| Ferguson v. Birchmount Boarding Kennels Ltd. |
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Definition
| D did not use correct standard of care, failed to use standard of care that the owner of the dog would have. Onus on D to show he used appropriate care. Foreseeable fence would be able to have dog escape, so liable. |
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Term
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Definition
| A shop keep thought he was entitled to all that was found in his shop. Court held not entitled to envelope of money found in his shop by someone else. No manifest intent to control everything in the store |
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Term
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Definition
| Employess found a box, employer told them to put it in the basement. Years later the employees go to the box and find money in it. Court holds the employer gets it, as he took it into his care and control. |
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Term
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Definition
| A trespasser 'found' a golden ball on a golf course, court held that since the golf course has a fence, they manifested their intent to control the land. Trespasser does not get ball |
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Term
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Definition
| Little boy found money while trespassing, still had the best claim to the money, so he can keep it. |
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Term
| South Staffordshire Water Co. v. Sharman |
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Definition
| Rings found at the bottom of a pool, by pool cleaner. Refused to give to owners of a house. Court made him, even if they did not know of the item, home owners have a better claim to things found on your property. |
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