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24 Cards in this Set
- Front
- Back
In Order To Possess you need |
Physical Control Intention to Possess (and exclude others) Knowledge of the good (not necessarily exact) |
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Inter Vivos Gifts Need |
Donor must have mental capacity Donor must intend to give There must be passage of title of the subject matter of the gift – CHANGE IN POSSESSION! donee must accept the gift
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WHAT IS ACTUAL DELIVERY? (conservative definition) |
Conservative: actual delivery means manual handing over, words of gift without handing over of possession is an incomplete gift CASE: Reeves v. Capper CASE: Shower v. Pilck
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What is "actual delivery" (liberal explanation) |
not always possible/practical/easy to hand over manually CASE: Danby v. Tucker (1895) * Look at surrounding circumstances and nature and character of the chattel, has there been an intention expressed to give?* Does not say “manual handing over” * Liberal interpretation: “retaining possession is not conclusive proof of no gift” * No manual delivery necessary but must look at circumstances * “Flow” of possession and rights |
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CONSTRUCTIVE DELIVERY
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Possession moves with how people involved treat the good and act towards each other and the good See winter v winter- "Actual delivery of the chattel is no necessary to a gift inter vivos, it is sufficient that the conduct of the parties show that the ownership had changed” – bad language, does not overrule Irons"
Or a delivery of a representation of property (as a written instrument) or means of possession (as a key) that is construed as sufficient to show the transferor's intent or to put the property under the transferee's control called also symbolic delivery |
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Is Delivery Spoken of Actual Delivery? |
Yes- J Wills See Kilpin |
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Onus to prove gift is good is on |
Donee |
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Ratio Kilpin v Ratley |
Creditors FIL furniture
Delivery spoken of can constitute delivery of possession (can transfer legal right through words).
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Rawlinson v Mort |
Church Organ Symbolic delivery, did all that could be done in a circumstance where real manual delivery was impossible.
valid gift was made when the parties were at the organ and words of gift were uttered in front of a witness -obviously, you could not expect Mr. Copeland to lift the organ and physically transfer it over to the plaintiff
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Tellier v Dujardin |
Father Piano Ratio: Words alone are good enough when goods are in common possession. Witnesses help a lot. - Delivery not required where goods are already in possession |
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Re Cole |
Bankruptcy wife just living there and using is not enough to show change of possession. Important point is that insurance and house still in his name and he knew how to transfer properly cannot give gift and use it as you would have before, will equal out and cannot be a gift Delivery between members of same household is problematic, and words of gift alone will not suffice.
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Cain v Moon |
Husband, Mother of deceased, bank notes Antecedent delivery is OK, and witnesses help a lot -Actual words spoken important; must show intention to give in event of death Delivery can predate giving -Do not have to be in immediate contemplation of death. |
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Wilkes v Allington |
Uncle, Cancer, Mortgage Uncle offered to tear up niece's mortgage when he died of cancer, died of pneumonia. Ratio: Don’t have to die of what you contemplate, or immediately; delivery does not have to be perfect, or complete.
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Thompson v Mechan |
Fear of Flying, car
Held that no DMC was made - fear was imaginary, was later overturned, courts are typically lax with DMC |
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Labadie |
house-keeper, promissory note Rule: Not a sufficient gift, because he went on with business as normal, continued taking payments from people (NOT “in extremis” or contemplation of death) & didn’t give her control when he gave her note
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Delivery more relaxed in DMC than IV Indicia of Title is what actually gives you benefit of property Have to do everything to put the object out of control Burden of proof is on the donee Where there is clear contemplation of death, is enough for DMC (Subjective test)
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Coggs v Bernard (1703), 92 E.R. 107 (Q.B.) 73
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Brandy Spillage Six levels of bailment laid out – varying liability (1) where benefit is solely for the bailor – only gross negligence is actionable (2) where benefit is solely for the bailee – even the slightest negligence on the part of the bailee would be actionable (3) cases of mutual benefit – an ordinary standard of negligence (a reasonable standard as in tort) would apply Ratio: Even a gratuitous bailment requires “reasonable care |
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Crawford v Kingston and Johnston |
The one man could sell the cows; but in order to sell them he had to have title. Then title had shifted and there was no bailment.
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Ashby v Tolhurst |
Parking, Ticket Exculpatory Ratio: A license allows someone to do something they could otherwise be sued for (eg trespass) Licence – key distinction between bailment v. licence – bailment requires transfer of possession
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Heffron v Imperial Parking |
Other parking case keys delivered (no access to car) inference that attendant more than a money taker Once you establish bailment, the bailee has to answer for damage, and has to show it took reasonable care An exculpatory clause limits the liability of the bailee.
Exculpatory causes can be killed by showing a fundamental breach
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Punch v Savoy's Jewellers Ltd |
Jewel, repair, train To deal with limited liability clauses have to show: That it doesn't apply to situation or; Fundamental breach 'Cannot say you will do something and are not liable if you don't do it' failure to deliver was a fundamental breach and the liability no longer applies |
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Martin v Town 'n' Country |
bailee should prove he took reasonable care Difficult to get a finding against a defendant in gratuitous bailment in Manitoba
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Houghland v R.R. Low (Luxury Coaches) |
Seniors lose luggae, bus left unattended
Standard of care the same as torts-reasonable
the plaintiff must only show that the bailment happened and the defendant must show that they were not negligent
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Letourneau v Otto Mobiles Edmonton |
railer in a parking lot adjacent to the defendant's premises, as they had been instructed by an employee of the defendant.
Ratio: Bailment can occur upon delivery of chattel and evokes a duty of care of a 'prudent owner'. (Case/fact specific) |