Property Midterm

ratione soli

"according to the soil" - American property law does recognize this principle, but it does not solve that many problems

"Lost" property rule

(traditional "finders" rule) a finder of lost property has rights to the property that are superior to the rights of all the world EXCEPT the true owner

'first in time'

*no superior claim* - this principle provides that prior property rights are superior to subsequent property rights. - under this rule, prior possession with intent to own/exclude others usually creates a superior claim relative to subsequent possession, even under dubious circumstances.

Bailment - acceptance element

- acceptance is not presumed with bailment as it is in gift, because, unlike most gifts, bailment comes with duties and potential liability, which the law is reluctant to impose on someone who didn't agree to accept them - actual (overt) acceptance: not necessarily required - constructive acceptance: can occur, for example, when a party who is under no obligation to pick up a piece of lost or mislaid property (e.g. a wallet on the ground) does so, thereby accepting the duties of a bailee

possession

- actual is preferred (can be by manucaption or with tools held by captor's hand) - constructive: when it is not "actual" but is legally sufficient to satisfy the requirement - to be legally sufficient, there must be complete control over object and owner is depriving it of its natural liberty - failure to maintain possession and control may question if it was ever possessed or controlled in the first place

Find - type of law

- all the rules for find are common law - common law applies in any state that does not have statutes regarding found property, or applies in any state whose statutes do not specifically apply to the type of property under consideration

gift causa mortis

- always voluntary

possible rationale for the secondary rule

- apportionment of liability; the location of the found property could indicate whether anybody other than the finder (i.e., the owner of the locus in quo) should be held responsible for the property's safekeeping - what is relevant is whether the owner of the locus in quo had sufficient CONTROL over the found object to be held responsible for its safekeeping. **knowledge of an object's presence seems to be read as a necessary precondition for control, but it is not an automatic thing; even if the owner of the locus in quo had knowledge of the object's presence, you must reason further and determine whether, on the whole, the owner had control of the object at the time it was found. sometimes they don't know it is there but the court finds that they had control; sometimes the know it's there but the court finds they did not have control.

knowledge and bailment

- because acceptance by the bailee is not presumed, some courts hold that creation of a bailment requires knowledge of the parties to the bailment (case law doesn't really bear this out) - one could say a bailment required proof that the bailee knew or should have known, but this is not a very tough thing to prove a. if any customer has previously left items in a business location (e.g. restaurant in a hotel), then the bailee probably should have known people would do that b. alternatively, the business owner's acceptance of/consent to the bailment will be said to have been implied from the facts and circumstances, making it a constructive bailment c. business owners often try to limit liability or even the possibility of creating a bailment by publishing waivers, but the law is usually not very generous regarding these. such attempted waivers will be construed strictly against the alleged bailee.

constructive possession examples

- capture through extended means (tools) - killing and then taking into hand - other accepted customary means (shooting and marking with tag) - owning the soil on or in which the object sits (ratione soli)

issues/ problems with causa mortis

- courts are divided as to the effect of the donor dying of some cause other than the one that was being contemplated at the time of the gift causa mortis - although any property may be given as a gift inter vivos, only personal property may be given as a gift causa mortis

intangible property points

- intangible property includes things such as ideas, rights to income, etc. - intangibles are never capable of manual delivery, and so transfers of such property interests always depend on other evidence of the intended transfer. in our modern era, that usually boils down to papers (deeds or title documents) - papers evidencing property rights are not the property rights - e.g. the 'Certificate of Title' to your car is not "title" to your car, but merely evidence that you do have title. if property must be registered to be legally recognized, however, then delivery of those papers is not merely symbolic but is CONSTRUCTIVE delivery, because it is delivery of the means of access and control. - TITLE is the same as OWNERSHIP. ownership or title cannot be seen, felt, touched, or held, but IT CAN BE gifted, divided, or sold. (notice it cannot be lost or mislaid, although it may be possible to abandon it in some cases) - title to property is always "somewhere," that is SOMEONE always has title (unless property is 'wild'). if a transfer (by gift or otherwise) is a transfer of only part of the whole title, then the rest of the title remains with the transferor.

difficult fact patterns with lost, mislaid, abandoned property

- items found on the floor of a shop; although we generally do not intentionally set things on the floor, it does happen sometimes to pull merchandise off a low shelf for closer inspection. moreover, a court could find that all areas of the shop - floor included - are within the control of the shopkeeper, and that all true owners therefore expect the shopkeeper to retain possession and safeguard lost items until the owner returns - items found on a chair in a restaurant or a car seat; the issues in this are similar to 'shop floor' hypo, but it's in that exactly grey area (physically) between where we usually set things and where we usually don't. - items found in the trash when the totality of facts and circumstances makes it doubtful that they were truly abandoned (e.g. a backpack in good condition, loaded with many items of value - there is a change it was stolen and ditched, in which case it is NOT abandoned)

donor must have present donative intent

- must intend to make a gift. intent to transfer property alone is not sufficient because there any many types of transfers possible. - present: must have that donative intent at the relevant time, must intend to make a present gift, that is to make a gift now, not sometime in the future * a transfer made with any intent other than a donative intent may still be some kind of valid transfer (ex: a sale, loan, bailment) it would not satisfy the requirement for a donative intent and would therefore not be a gift.

trademark

- originated in state laws prohibiting unfair competition - a trademark is any "word, name, device, or symbol" that identifies the goods and their source a. must be distinct from other companies' marks b. must be 'nonfunctional' i.e., must not be something properly protected by patent - protection does not depend on invention, creativity, or originality, but is held by the first party to use the mark in commerce - trademark protects consumers by prohibiting manufacturers and merchants from using marks that mislead or confuse. this is different from intellectual property concepts that protect "owners."

donor must deliver property to the donee

- several delivery methods 1. ACTUAL OR MANUAL DELIVERY a. physical handing over the item itself b. required whenever possible 2. CONSTRUCTIVE a. delivery of the means of access to or control of the property being gifted (ex: keys to a chest) b. most jurisdictions find constructive delivery effective when the property is being gifted is incapable of manual delivery 3. SYMBOLIC a. delivery of something that merely symbolizes the property being gifted (e.g. photo of a chest) b. this is the least preferred method of delivery and is not sufficient to complete a gift in most jurisdictions (in classroom jurisdiction, SYMBOLIC DELIVERY IS INSUFFICIENT TO SATISFY THE DELIVERY ELEMENT)

secondary rule analysis requirements

- should not be included unless after a full analysis with primary rules, you think it is not possible to reasonably determine whether the found property was "lost' or "mislaid." this is very important and means several things: 1. you always must do a FULL analysis of whether the property is lost, mislaid, or abandoned, regardless of where it is found, and you must do this analysis FIRST. 2. if you determine that it is reasonable to conclude the item fits one of the categories about, then you will never need to reference the secondary rule (except perhaps to further support your conclusion - e.g., not only is the wallet on the ground, but it is outside in a public space) 3. if you have concluded (after a full analysis) that the property is not abandoned, and if you then determine (after a full analysis) that the odds are about 50-50 whether it was lost or mislaid, then - and ONLY then - you may bring in this secondary rule **NEVER RESULT TO A SECONDARY RULE FIRST!**

likelihood of owner's returning (part 2)

- sometimes this explanation is tossed in as if it will justify the public/private distinction, but this only seems to kick us back to the lost/mislaid distinction - in Belian's opinion, this is laziness on part of the court - relying on a gut check of probability that the owner will return is risky business, and you should not do it, as doing so makes you prone to skip all the crucial analysis.

when disputes over first possession arise

- usually two/both parties have both taken actions that could result in the acquisition of property rights - it is almost never about who did the necessary things, but is usually about who has the better claim in light of the fact that they both did the necessary things. -comes down to which one party had a superior claim compared to the other (ex: through being first or securing better control, etc.)

issues / problems with abandoned property

- we cannot ever really know what the true owner's mindset was at the time he or she stopped possessing the property - only way to know for certain would be to ask true owner and if the true owner was there to ask and were asserting rights to the item, the finder and the owner of the locus in quo would both lose - we must INFER the MOST PROBABLE state of mind from the facts of the case

donee must accept the gift

1. acceptance is presumed if the property delivered has value to the donee. 2. acceptance completes the transaction we call "a gift," and once this transaction is completed, the gift cannot be revoked by the donor or denied by the donee (which is why the court in Gruen did not find the failure to list the painting in the divorce to be dispositive; the court found the acceptance had already completed the gift 10 years earlier).

related property concepts (may exist along with the bailment or may involve a bailment)

1. bailment must be distinguished from a license, rental, a sale, or insurance 2. a LICENSE is permission given by the landowner (owner of the locus in quo) to utilize the land for a limited time and purpose 3. a RENTAL is permission to use a chattel for a limited time in exchange for a fee 4. a SALE is a transfer of title as well as possession 5. INSURANCE is a contract in which the insurer agrees, in exchange for funds paid (the premium), to compensate the insured in the event of loss of identified property from certain causes. depending on the contract, an insurer may be bound to pay despite lack of any negligence on the insurer's part. 6. a PLEDGE is a bailment, but of a special type; in a pledge, the pledgor (bailor) delivers possession of some property to serve as security for an obligation; title to the property will be forfeited if the obligation is not satisfied (don't worry about this) 7. CONVERSION: if a bailee uses the property in some manner not agreed upon by the parties, the bailee has converted the property and, upon that authorized use, becomes an insurer, and strictly liable for damages that result.

Bailment elements

1. delivery 2. acceptance 3. stated or understood purpose or limited time for possession

gift - required elements

1. donor must have present donative intent 2. donor must delivery property to donee 3. donee must accept the gift

Bailment - stated or understood purpose or limited time for possession element

1. expressly stated - in cases of ordinary, voluntary bailment, the stated or understood purpose or limited time is usually either stated expressly or implied so strongly by the facts that we take it as stated (e.g., if you leave your car with a repair shop, the purpose is for repair and the time is as long as the repair takes) 2. when an item is 'mislaid,' safeguarding the property until the owner returns to pick it up is always "understood" as a purpose sufficient to support a finding of bailment - note that with 'mislaid' property, all three elements - DELIVERY, ACCEPTANCE, and PURPOSE - are 'constructively' established or implied

Copyright

1. grounded in the U.S. Constitution and granted by federal statute 2. protects original works of authorship fixed in a tangible medium of expression. The 'sin qua non' of copyright is originality (not how much work went into it, or "sweat of the brow" 3. protects both published and unpublished works, in any tangible medium of expression, from infringement by non-authors for the term of the copyright (which is a limited time) 4. to prove infringement, the claimant must prove: a. ownership of a valid copyright AND b. that the defendant copied original elements from the copyrighted work

to be granted a patent

1. patentability (a patent may be granted only for a "process, machine, manufacture, or any composition of matter." 2. novelty (invention has not been preceded by an identical invention in public prior art) 3. utility (invention must be of some (at least minimal) use) 4. non-obviousness (invention must offer a significant technical advance over prior art) 5. enablement (the patent application must describe the invention in sufficient detail that a person "of ordinary skill in the art" would be able to use the invention by reading the description)

Required elements of capture

1. possession (actual or constructive) 2. with intent to own/exclude others 3. no superior claim

major capture principles

1. possession is not identical with ownership, even though there is clearly a close relationship between them 2. possession does not always given rise to title 3. title does not always require possession

major principles of gifts that will apply all year

1. property rights may arise to be created not only with regard to whole things, but also with regard to various spatial or temporal parts of things Spatial: one may own mineral rights Or surface rights Or air rights; or a combination of those Temporal: one may own a present possessory interest, or one may one a future interests 2. property rights may also be conditional rather than absolute 3. property rights may arise or be created with regard to intangibles as well as tangibles

Bailment: two distinct types of analysis required for breach of bailment duty

1. whether a bailment was created at all - must be analyzed by determining whether the elements of a bailment were met. if no bailment was created, then no duties attached to the bailee. 2. then and only then you MUST analyze whether the bailee breached either of the TWO duties that attache when a bailment is created. the duties are separate and distinct, and you must analyze them separately and distinctly.

Bailment Levels of Care

Gratuitous bailment (primarily for benefit of bailor) LOW LEVEL OF CARE, only liable if grossly negligent Mutually beneficial (benefits both bailor and bailee) REASONABLE LEVEL OF CARE, only ordinary negligence Primarily benefits bailee VERY HIGH LEVEL OF CARE; liable for almost any negligence

analysis reminder

REMEMBER: every time you analyze a problem of found property, you must include an analysis of the true owner's likely state of mind at the time the item "escaped" the owner. this analysis must itself be based on the FACTS of the case - when it seems unlikely that the true owner will return for the property, the law will usually go ahead and find that title "ownership" has passed to the finder.

Capture - Rule

To acquire property rights in things (other than land) requires possession of the thing (actual or constructive); the possessor must intent to own and/or exclude others; and there must be no superior claim to the thing.

ferae naturae

a landowner has constructive possession of wild animals on their land, but it legally has a propensity to escape as opposed to domesticated animals - once a wild animal leaves a particular piece of land, constructive possession by the landowner on the basis of ratione soli ceases and the landowner has no ongoing property rights of the wild animal

treasure trove

a large amount of money or a large number of valuable objects found hidden somewhere and seeming to belong to no one - statute (and sometimes case law) in many states has made ancient currency and relics the property of the government regardless of the circumstances or location in which the items are found.

mere gratuitous promise

a mere gratuitous promise is NOT a gift. you must be able to distinguish between a mere promise to make a gift in the future as opposed to a conditional gift.

"fair use" exception

a privilege, held by parties other than the owner of the copyright, to use the copyrighted material in a reasonable manner, with or without consent - four "nonexclusive" factors must be considered to determine whether a use was "fair." 1. the purpose and character of the use; 2. the nature of the copyrighted work; 3. the substantiality of the portion used in relation to the copyrighted work as a while; 4. the effect on the potential market for our value of the copyrighted work - these factors are 'non-exclusive,' meaning courts may consider other factors as well. each case must be analyzed and decided individually

issues/problems with acceptance

a. although acceptance is usually presumed, that presumption is rebuttable (can be defeated) - certain acts by the donee may provide evidence for an argument that the gift was not accepted b. problems with acceptance can also arise if the property being gifted has debatable value, or has differing values depending on who owns it, or confers liabilities in excess of the underlying value.

issues/problems with delivery

a. an agreement or promise to give does not satisfy the delivery requirement. although such agreements or promises may, in the future, lead to a completed gift, there is no gift until the delivery and acceptance are completed. b. delivery by an agent may satisfy the delivery requirement provided the donor has relinquished all dominion and control over the property (ex: handing property over to UPS or FedEx may not constitute a complete relinquishment of control and therefore may not satisfy delivery requirements until the item is actually delivered to the donee. - bottom line is WHETHER THE DONOR HAS OR HAS NO RELINQUISHED CONTROL ex: delivery to a lawyer to deliver to someone else, original owners mind can change and stop delivery. delivery to the agent is insufficient. - owner delivers property to the other party's lawyer, because its not her lawyer, she cant stop delivery. c. problems with delivery by an agent may arise if there is a disagreement or uncertainty about who is an agent for whom. d. if the donee already has possession of the property, re-delivery is not required to complete a gift inter-vivos

elements required to gain rights in creations

a. created item did not previously exist - literally did not exist - did not exist in that form b. claimant created the item through her own free activity - literally, or actor was claimant's agent - no one has superior claim to either the material or the labor involved (a) claimant owned or "captured" the raw materials (b) claimant not acting as agent or employee of anyone else c. created item is a thing

types of mis-delivery (bailment)

a. delivery to the wrong person b. delivery of the wrong property - with fungible items and commodities (such as dollar bills or corn), the bailee does not have to return the exact same bills or kernels of corn, so long as what is returned is of comparable quality and/or value

mutually beneficial bailment

a. when the bailment benefits both parties equally, the bailee has a duty to exercise reasonable care and will be held liable for any ordinary negligence. the bailee must take reasonable care to protect the property from damage. b. most mutually beneficial bailments arise between customers and merchants. there is a "soft" presumption that commercial bailments are mutually beneficial, but not every bailment between a customer and a merchant will turn out to be mutually beneficial c. cases involving objects mislaid at a merchant's are of this type (because the owner was presumably a customer and because retaining lost property for the owner's return benefits the merchant by generating good will) d. note that when the object is left somewhere that would make it "lost" rather than "mislaid' - e.g., the sidewalk outside the restaurant - a mutually beneficial bailment may still arise if the owner of the locus in quo or an employee chooses to pick up the object, thereby assuming a duty of care towards it

gratuitous bailment

a. when the bailment benefits only the bailor, or when the benefit to the bailee is only slight, the bailee will be held liable ONLY if the bailee is GROSSLY negligent - the bailee must not deliberately disregard the need to care for the bailed property b. this kind of bailment typically arises when someone agrees to keep or watch property as a favor, or when the bailment occurs as result of a mistake

for the benefit of the bailee

a. when the bailment is primarily for the benefit of the bailee, the bailee will be responsible for almost any negligence, however slight. the bailee must take extraordinary care to ensure the property is not damaged b. courts often apply this much higher standard to repair shops and shipping companies, even though those could also be seen as mutually beneficial arrangements - probably because the commercial party has so much more control over all the circumstances c. an easier example might be that of a loan of an oject (ex: lawn mower); the bailment so established is purely for the benefit of the borrower (i.e. the bailee)

definition of 'abandoned' property

abandoned property is property the owner intended to stop possessing and also intended to stop owning - finder of abandoned property becomes new owner (provided the finder takes possession with intent to own / exclude and there is no superior claim)

Bailment - delivery element

as with Gift, differing types of 'delivery' 1. actual = physically handing over the property, sometimes called manual delivery 2. constructive = physically handing over the means of control rather than actual handing over of the property - in bailment, this refers most often to the situation of mislaid property, such as the purse left in the restaurant. in such cases, although there certainly is no actual hand-off of property from owner to the owner of the locus in quo, the owner of the locus gains sufficient control of the property to satisfy this element

duty of care (bailment)

bailee must exercise DUE CARE for the property while the property is in the bailee's possession, often stated as the requirement that the bailee return the property IN THE SAME (OR AGREED UPON) CONDITION as it was delivered to the bailee. - how much case is "due" varies depending on the type of bailment. - the standard of liability for each type of bailment tells you just how careful the bailee must be to avoid damage to the bailed property

capture + common law

common law rules of capture may be modified or abolished by statute. such statutes amount to a "superior claim" because they establish or prohibit property rights by law.

conditional gifts

conditional gifts are perfectly OK. title (ownership) transfers automatically upon satisfaction of the condition

with intent to own/exclude others

courts measure this intent by analyzing the facts and circumstances of the claimant's possession (meaning that possession is not only an element itself but is also evident of another element, intent)

gift causa mortis elements

elements are same as inter vivos 1. present donative intent and the gift must be made in contemplation of imminent death (as in contemplation of the donor's expected death in the very near future from a specific cause) 2. donor must deliver property to the donee. same methods of delivery are effective ** if the donee already has possession of the property, re-delivery is REQUIRED for a gift causa mortis (but not for a gift inter vivos) 3. donee must accept the gift as a CONDITIONAL gift - whereas a gift inter vivos is complete and irrevocable once accepted, a gift causa mortis is a conditional gift condition on the DONOR DYING of the contemplated death - if the donor does not die as contemplated, the gift is revoked (i.e. the donor automatically becomes the owner once again) and the donee must restore possession of the property to the donee (i.e. must give it back) - in a minority of jurisdictions, a gift causa mortis is revocable by the donor but not automatically revoked

consequences of establishing a bailment = DUTIES

every bailee has two duties with regard to the bailed property: a duty to redeliver, and a duty of care over the property until it is redelivered

patent

grounded in the U.S. Constitution and granted by federal statute - grants a limited monopoly over an invention. the inventor may prevent others from making, using, selling, profiting from the invention for the term of the patent (which is a limited time)

mislaid property overlap with bailment

in the case of mislaid items, courts have found that the true owner has actually created a constructive bailment in the owner of the 'locus in quo.' the owner of the 'locus in quo' therefore, as a bailee, has not only a RIGHT TO POSSESS the mislaid object, but also has a DUTY TO SAFEGUARD it until the true owner returns to claim it. note: because the true owner of lost property also has the greatest claim to the property, the finder of lost property may also be a CONSTRUCTIVE BAILEE

intellectual property

legislatures have enacted statutes to protect creations/inventions that are not otherwise (traditionally) considered "property" - copyright - trademark - patent

definition of 'lost' property

lost property is property that the owner unintentionally stopped possessing but did not / does not intend to stop owning

subject matter of the gift inter vivos

may be any cognizable property right, including intangible property rights examples: future interests; rights to income streams; intellectual property rights; etc.

failure to exclude others

may be interpreted as evidence of a lack of intent to own and therefore evidence that no property rights were created

failure to maintain possession

may be interpreted as evidence of a lack of intent to own/exclude and therefore evidence that no property rights were created

definition of 'mislaid' property

mislaid property is property that the owner intended to stop possessing, at least momentarily (e.g., set it down), but did not/does not intend to stop owning - the owner of the place where mislaid property is found has both a duty and a right to retain possession until the true owner of the property returns to claim it.

gift causa mortis and inter vivos

not different rules. it is the same rule as gift inter vivios modified by additional requirements and a couple of different features or consequences

example in Ghen v. Rich

once someone owns something, their property rights in that thing continue even if it escapes their possession. these are, however, limits to how far we will go to enforce those rights. the different rules reflect the law's attempt to balance the rights of a finder on the one hand and the true owner on the other

creation rule

one has property rights in one's creation (or invention) if it was created by one's own free activity and there is no superior claim.

animals + capture

only wild animals can be 'captured.' - domesticated animals continue to belong to their owner even if they wander off, because the owner has the superior claim. - domesticated animals are said to have a tendency to return (animus revertendi) to their owners, which evidences their owner's continuing control

accession from labor by innocent person

originally, rules regarding accession did not vary by whether the property was taken wrongfully or not. - more modern approach limits the rights of the owner of the original property to the value of the original property, giving the innocent improver rights to the thing itself (which allows the innocent improver to all the value of the improvement)

specific rationale for the rule regarding "mislaid" property

owners who abandon property cease to be the owners. at that point, the property becomes unowned, and is available for 'capture,' so to speak

first element of capture

possession

duty to redeliver (bailment)

property must be returned to owner or the owner's designated agent once the purpose of the bailment is accomplished or the time expired. i. standard of liability : STRICT (without any regard to negligence or level of care). you either redeliver or you don't. and if you don't you are liable

abandoned property additional secondary rule

rule: items found in public places are generally held to be lost, while items found in private places are generally held to be mislaid. examines whether the property was found in a 'public' or 'private' space (that is, was it found somewhere more like the street or more like the shop counter)

no superior claim

rules of capture apply only to things not already owned (or things over which ownership has ceased)

'abandoned' 'public' place definition

some areas that are privately owned (the floor of a shop) may be treated as PUBLIC SPACES if the owner of the locus does not have complete control over the area (e.g., the sidewalk in front of a grocery store). in those cases, the court uses the distinction to find that something was "lost" (and give it to the finder) even when it appears to have been deliberately set down

'abandoned' 'private' place definition

some places that seem unlikely spots for a person to intentionally set something down may be deemed a private area (entirely within the control of the owner of the locus) and that may serve as the basis for a finding that the item was "mislaid" and not lost" (e.g. a $100 bill found on the floor of a restroom in a very swank restaurant)

accession

the acquisition of title to property produced from other property, which did not have any previous existence as such. i. oldest rule is that if someone wrongfully takes and alters a thing into some other thing by labor, the owner of the original thing owns the new thing too A. if original owner could no longer distinguish the original property, or if the original property was destroyed in the making of the new item, or if the increase in value was entirely out of proportion to the value of the original item, the laborer who altered it had rights to the thing itself, but the original owner of the materials retained a right to the value of the source materials

what is the essence of a gift

the essence of a gift is the gratuitous surrender or possession and control. if the purported donor retains possession or control in any way, further analysis is required to determine whether there was no gift at all, or whether there was a gift of only some interest in the property and not total ownership, or whether the gift was conditional on some external event

"abandoned" rule

the finder of abandoned property becomes the new owner (provided the finder takes possession with intent to own / exclude and there is no superior claim)

Find rule

the finder's right to "found" property depends on whether the property is deemed lost, mislaid, or abandoned.

"mislaid" property rule

the owner of the place where the property was found (the owner of the 'locus in quo') has both a right and a responsibility to retain possession of the property until the true owner returns to claim it.

labor theory

theory that property interests arise from one's work of transformation upon a thing.

fugitive resources

these rights (water, oil, gas) are usually regulated by statute, which modifies and/or limits the rights one may gain by "capturing" such resources

gift causa mortis rule

to effect a valid gift causa mortis, the donor must delivery the property to the donee with present donative intent in contemplation of imminent death from illness or injury; and the donee must accept the gift as conditional upon the donor dying from the imminent illness or injury

Gift (inter vivos) rule

to effect a valid gift, the donor must, with present donative intent, deliver the property to the donee, who must accept it

Bailment definition

transfer of possession (but not ownership) of property from owner to someone else, usually for a specific purpose or for a set of time, upon the expectation that the property will be returned in same condition after the purpose is accomplished or time is elapsed.

specific rationale for the rule regarding 'mislaid' property

true owners of mislaid property have the best possible chance of figuring out where the property escaped their possession. if true owners try to backtrack and locate their property, they likely will return to the locus in quo. - by contrast, a true owner would have virtually no change of locating a random and chance finder. - therefore, when the facts suggest the property was mislaid, the law perceives a greater need to protect the rights of the true owner than those of the finder. - we grant possession to the owner of the locus in quo in order to protect the rights of the true owner, not to benefit the owner of the locus.

when property seems to not be abandoned

when property seems to not be abandoned, but the facts are such that the court cannot reasonable conclude whether it is more likely "lost" or "mislaid," an ADDITIONAL SECONDARY RULE may come into play

chances of owners of lost property reclaiming / specific rationale for rule regarding 'lost' property

when someone stops possessing property unintentionally (lost), there is also a significant chance they lost that possession unknowingly. owners of lost property, therefore, have a lower chance of figuring out where the property escaped their possession and control and a lower change of ever returning to claim it. as between that absent true owner and the finder in possession, therefore, the law perceives a greater need to protect the rights of the finder than to safeguard the property for the true owner.

Bailment: Analytical Overview

when someone sues on a bailment, the underlying cause of action is almost always an allegation that the bailee breached one of the duties that arose from the bailment. to prove or disprove claim: two distinct types of analysis are required