Unit 2 - Bailments

BAILMENT FOR THE SOLE BENEFIT OF THE BAILOR

1. This exists when the owner/bailor entrusts an article to another person/bailee for storage or safekeeping, without charge - as a favor. 2. Since the Bailee is doing a favor for the Bailor, the law requires that he/she exercise only slight care. 3. An example of this would be if John is going on vacation and asks his neighbor if he could leave his Picasso painting at the neighbors. In this situation a Bailment has been created for the Sole Benefit of the Bailor.

MUTUAL BENEFIT BAILMENTS

1. This is the most common type of Bailment. Consideration is ALWAYS PRESENT. 2. Both the Bailee and the Bailor get a benefit, each one has rights and benefits. 3. Bailor has the duty to warn the bailee of any defects in the property that could cause harm. 4. Bailee has the duty to exercise reasonable or ordinary care in the use of the property. 5. Each party has the right to expect the other party to fulfill the duty imposed on him or her.

BAILMENT FOR THE SOLE BENEFIT OF THE BAILEE

1. This is the type of situation that occurs when you borrow an article from a friend. 2. Results in a borrowing or lending transaction 3. The person who borrows the article gets the benefit. 4. The owner/bailor must warn the bailee of any defects or hazards that exist. 5. Since the bailee is getting something for nothing the law expects the bailee to exercise Great or Extraordinary Care. 6. An example of this would be when Jim goes to his neighbor and asks the neighbor if he can borrow his lawn mower.

CONSTRUCTIVE BAILMENT

1. This is when a Bailment is thrust upon you. 2. For example, if you are a patron in a restaurant and when you leave the restaurant your wallet falls out of your pocket into the chair cushions. When the restaurant personnel find the wallet a __________________ is created.

POSSESSION, NOT OWNERSHIP

A Bailment allows the owner of personal property to transfer __________________, of it to another individual for anyone of the following purposes: 1. SALE - Goods on consignment - temporary custody. 2. TRANSPORTATION - for shipment by transporter of goods 3. REPAIR OR SERVICE - car left for service 4. RENTAL - car, skis 5. STORAGE - warehouse, coatroom, car in garage 6. SECURITY FOR A LOAN

tort

A _______, in contrast to a crime, is a violation of the rights of an identifiable individual or business. It is important to note here that it is also a violation of a business, not just a person.

Example of Tort of Negligence

A baby sitter has an obligation to watch children and safeguard them while the parents are not at home. With this in mind consider the situation in relation to Negligence. The baby has a duty to safeguard and watch the children. While performing these duties the babysitter's best friend comes over and they watch television and play cards. During this time the babysitter doesn't watch the children and the children fall down the stairs and hurt themselves.

Mutual benefit bailment

A bailment in which consideration is present is:

Reasonable Person

The law provides that when a judge is deciding whether the actions of an individual are within reason, the judge balances the actions of the person against a mythical person called the "_______________________." This mythical person is someone who acts properly and reasonably in all situations. This person is assumed to have perfect judgment and skill and acts correctly in all situations.

False

The parties to a bailment are the assignor and the assignee. (T/F)

Implied Power

The power of Courts to address legal issues concerning the Internet comes from the US Constitution. Which power gives the courts the authority to decide this type of case?

Hijacking

The stealing of a vehicle while in transit is:

1. LIBEL & SLANDER 2. PRIVILEGE

The tort of Defamation is divided into two separate torts:

Tort

The violation of a private wrong that causes injury to another person's physical well being, property or reputation is:

Board of Funeral Directors

Which one of the following IS an Administrative Agency? Governor's Office Board of Funeral Directors Supreme Court House of Representatives

In-ground swimming pool

Which one of the following items WOULD NOT be involved in the Tort of Conversion? Car Diamond Engagement Ring In-ground swimming pool Office Computer

Receiving a commission on the sale of personal property

Which one of the following situations DOES NOT create a bailment? - Clothing placed for sale on consignment - Leaving one's car at a garage for repairs - Receiving a commission on the sale of personal property - Renting a Hertz Rent a car while on vacation

tort

can be either intentional or by negligence.

Tort of Conversion.

if an individual owns a car and the car is stolen, the person will be charged with the crime of theft of the car and also with the _______________. When the car is stolen the person can no longer use it and he is thus denied the enjoyment and use of his personal property.

True, i.e., Putting a rental car in a garage creates a bailment.

Anyone in Possession of Property can create a Bailment (T/F)

Constructive Bailment

If a guest in your home unintentionally leaves her wallet, what kind of a bailment, if any would be created?

True

If a law is found to be contrary to the US Constitution the law is said to be unconstitutional. (T/F)

Bailor; Bailee

In a bailment, the owner of the clothes (__________) still owns the clothes and the Dry Cleaner (__________) has possession of them.

False

In a situation in which a bailment exists the person who transfers possession of goods is the bailee and the person who receives the property is the bailor. (T/F)

True

Of course if the statement made is true, truth is an absolute (100%) defense. (T/F)

Conversion

One is guilty of a _____________ when he interferes with the enjoyment of someone's personal property.

BAILEE

Person who receives the goods

BAILOR

Person who returns ownership & transfers possession.

True

Rules that are adopted by Administrative agencies have the same force and effect as Statutes and Ordinances. (T/F)

Privilege

Statements that are untrue and satisfy the element of Publication may be exempt from prosecution if there is a ___________. If the statement was made by an attorney in a court proceeding or if the statement is made on the floor of the legislature such statements are EXEMPT from prosecution.

Publication

The definition of _____________ in relation to the tort of defamation is that the defamatory statement be made to a third person. The fact that the defamatory statement is made ONLY to the defamed person DOES NOT constitute ______________.

Administrative Agencies

in the Executive Branch of government. They are the various Federal Departments, such as State and Treasury, and they include all of the Boards, Commissions and Agencies that are in the departments. Such Boards, Commissions and Agencies are the IRS, FTC and FCC to name a few. When these agencies are created they are created with the authority to adopt rules and regulations to enforce and regulate a particular area. For example the IRS adopts rules and regulations to enforce the Income Tax laws. These rules, like statutes and laws, can be reviewed by the Judiciary.

BREACH

paying attention to the friend and not the children.

CAUSATION

the babysitter doesn't pay attention to the children.

Vicarious Negligence

the charging of a negligent act of one person to another. Generally, cases of _____________ involve the negligence of an employee where the employer is held responsible for the actions of the employee.

HARM

the children fall down the stairs.

NEGLIGENCE

the failure to exercise necessary care to protect others from unreasonable risk of harm. In order to try or attempt to avoid litigation an individual or an employee should exercise great care and good judgment to avoid causing injury to others. Of course, this will not always prevent lawsuits.

DEFAMATION

the general term used for the harming of a person's reputation and good name.

DUTY

to watch the children.

loud noises, foul odors or bright lights.

Examples of Private Nuisances are:

1. The statement must be untrue. 2. The person making the statement knows that the statement is untrue. 3. The statement is made in the presence of a third party (Publication). 4. The statement is not subject to privilege and therefore is not actionable.

For the act to be considered defamation, it is necessary to show that the statement:

False

Generally speaking when a bailment has been created the bailor must return the identical goods which were placed in his or her care. (T/F)

I Executive II Judicial III Legislative

Generally, State & Federal Governments are divided into 3 Branches which are? I Executive II Judicial III Legislative IV Administrative

Libel

A defamatory statement that is recorded on a video cassette is considere be?

PRIVATE NUISANCE

A person who acts in a way that denies this right to a specific person or persons has created a ____________.

true

Each of these branches is equal in power and authority and they are each independent of the others. In the United States Constitution it talks about checks and balances and each of these branches "check" and "balance" the other. For example, the Legislative branch passes a piece of legislation and the President then decides whether he will sign it. If he signs it then it becomes law and if its constitutionality is challenged the Judiciary will decide that issue. If, for example, the President vetoes the passed legislation, then the Legislative branch has the ability to override the veto. Of course any legislation that is enacted can be reviewed by the Judiciary. (t/f)

BAILEE'S LIEN

If the bailor does not pay for the services or the work that is done the bailee will have a Bailee's Lien

Conversion

Jason stole Jerome's car and was charged with Grand Theft auto. What tort, if any, would Jason be charged with?

Example of Slander

John called Mary, his employee, into his office. The two of them were alone in the office and John told Mary that she was a thief and that he knew that she had served a prison term in the State Penitentiary. Mary runs out of the office and screams. John accused her of being a thief and serving time in jail. May states that she will sue John for slander (no permanent record). The facts of this situation do not establish a case of slander. Assuming that the statement is not true, there is no publication of the statement. The statement was made between John and Mary and it was not communicated to a third person by John. In order for the tort of slander to establish the publication of the defamatory statement must be made by the "Slanderer," not the person against whom the statement is made.

Bailment for the sole benefit of the bailor

Margie was going on vacation and she asked Jeremy if she could leave her jewelry with him because she did not want to leave it at home. This bailment is a:

Example of Libel

Marvin calls his secretary Rose into his office to dictate a letter for Joan's personnel file. In the letter Marvin states that Joan stole money from the petty cash account. This statement is untrue and Marvin is making it with the intent halt Joan's promotion. Is this actionable? If so, why and what is the tort? Joan would have a case against Marvin for Libel, since there is a permanent record of the statement (letter) and there was publication of the statement. The element of publication is satisfied by the fact that Marvin dictated the letter to Rose, his secretary. Rose is the third person.

1. Bailment for the sole benefit of the Bailee 2. Bailment for the sole benefit of the Bailor 3. Mutual Benefit Bailment 4. Constructive Bailment

THERE ARE 4 TYPES OF BAILMENTS

DUTY - BREACH - CAUSATION - HARM

The 4 elements that make up the Tort of Negligence are:

identical goods

The Bailee has the responsibility of returning the __________. Please DO NOT try to tell me that when someone drops off dirty clothes at the dry cleaner that he does not receive the same goods back because the clothes are now clean.

when clothing is left for alteration or in the case of FUNGIBLE GOODS.

The EXCEPTION to getting back the identical goods is:

1. Executive 2. Judiciary 3. Legislative

The Federal Government is divided in 3 distinct and independent branches. They are the:

Public Nuisance

The John's Manville Co. had their asbestos plant located in the middle of Manville, NJ. The company poured its poisonous waste into the town's water supply. The City of Manville sued the Company alleging several violations of the environmental law and of what tort?

Conversion

The Tort of ___________ is the "opposite" of the tort of Nuisance. __________ deals with a person being denied the use and enjoyment of his/her PERSONAL property.

BAILMENT

The agreement between the Bailor & Bailee

STRICT LIABILITY

There are certain events that can cause death or injury and no matter how careful or how many precautions are taken the person who was involved with these actions is responsible for damages. Damage caused by fire, water, dangerous chemicals, wild animals or explosives create a Strict Liability situation. For example, if an individual keeps wild animals at home and these animals get loose and cause damage, the owner of the animals would be 100% responsible and liable for all damages. Another example would be when a building is being imploded and there is damage to neighboring buildings, the person responsible for the explosions is liable for all damages.

LEGISLATIVE BRANCH

This is the Congress, which is comprised of the Senate and the House of Representatives.

EXECUTIVE BRANCH

This is the branch of Government that is headed by the President. It includes the Vice President and the various Federal departments, such Treasury, State, Homeland Security and Commerce to name a few.

JUDICIARY BRANCH

This is the courts. The highest court in the United States is the Supreme Court, which is headed by the Chief Justice.

VICARIOUS LIABILITY

This is when liability is the responsibility for an act is shifted from one person to another. For example, if you allow someone to drive your car and the driver gets into an accident, the responsibility for the accident can shift to the owner of the car. Thus the owner is vicariously liable.

HOTEL BAILMENTS

This occurs between the guest (bailor) and the hotelkeeper (bailee) with regard to the guests' property. a. Under Common Law the hotelkeeper's liability is absolute. b. Many states limit the liability to the amount listed in the posted notice.

PARKING LOT BAILMENT

This type of Bailment is created ONLY when the parking lot attendant has actual control. (Not a park yourself) If the Parking Lot makes express & implied assurances such as security, the court may interpret the facts or the case to find that the parking lot had control.

False

When a bailment is made the owner of the property transfers ownership of the goods to the bailee. (T/F)

Unconstitutional

When a court declares that a law is contrary to the U.S. Constitution, the law is declared to be

BAILMENT FOR WORK & SERVICES

When property is turned over with the understanding that certain work is to be performed on the property a bailment for work & services is created, i.e., fabric to a tailor for a suit

Great Extraordinary Care

When there is a Bailment for the benefit of the Bailee what type of care is required?

I Truth IV Privilege

Which of the following defenses are used for slander and libel cases. I Truth II Contributory Negligence III Comparative Negligence IV Privilege

Libel

_______ is the more permanent type of defamation. In this case there is a permanent record of the defamatory statement. As long as there is a permanent record such as a video, tape or written record the statement would be classified as ________.

Slander

________ is the LESS permanent type of defamation. For example if someone makes the defamatory statement and it is not recorded then as long as all the elements of the tort are satisfied then this defamatory statement would be considered ____________ - spoken words, gestures, actions and even omissions

Nuisance

__________ involves denying an owner of real property the enjoyment of his/her REAL property. The law gives everyone the right to enjoy his or her land without the unreasonable interference from others.

Bailment

__________ is a transaction in which possession of tangible personal property is given to a party other than the owner without title passing from the owner to the person who has taken possession, e.g., Clothes that are dropped off at the dry cleaner.

CONTRIBUTORY NEGLIGENCE

a DEFENSE that is used in negligence cases. This defense is used as follows: Assume that there is a car accident in which 2 vehicles are involved. A lawsuit is filed between the 2 parties, John and Mary. Mary sues John for damage to her car as a result of the accident. John in his response to the lawsuit

crime

a _________ is a violation of the rights of society as a whole whether the individual is the victim or there is no identifiable wronged party.

PUBLIC NUISANCE

a ____________ affects the community or the general public.

RESPONDENT SUPERIOR

a doctrine that provides that the Employer is responsible for the actions of the Employees. Of course, one must remember that for the Employer to be liable for the actions of the Employees the infraction committed by the employee must be within the scope of his/her employment. This means that if the employee's job is to drive the hearse at the funeral, and he is drunk when he drives it and causes an accident, then the Employer would be liable. If for example the employee went to a bar after work and got drunk and was in a bar fight, any damage from the fight would not be the responsibility of the employer.

COMPARATIVE NEGLIGENCE

a doctrine which Judges use to determine the amount of "guilt" or "negligence" parties to a accident. For example if you are involved in a car accident and the Defendant (the party against whom the lawsuit is brought) brings up the defense of Contributory Negligence, the Judge, after hearing all the evidence must allocate the negligence. a method of allocating negligence between the parties to a negligence lawsuit.

BAILMENT FOR STORAGE

a type of Mutual Benefit Bailment. this situation arises when the person or the firm that provides storage facilities is known as the WAREHOUSER. The Warehouser gives a receipt for the goods and accepts responsibility for any loss.