Property
Class Notes
A little more about Texas
American
The
court talked about the long-standing
The Ahab problem, p. 21
Let’s
do this like it’s an exam question! How
would Braunstein like us to organize our answers?
What’s the issue? Does the captain have actual possession of
the whale? Or, in other words, who is
the first possessor?
Why
is that the issue? We know from Pierson
that when we have two people claiming possession of a wild animal that the first possessor will win.
What
constitutes possession? Check out the
case, and the majority says that pursuit on Ahab’s part isn’t enough. Ahab needs actual possession. But what
constitutes actual possession?
Ahab
didn’t kill the whale right away.
Possession
requires actual custody with the intent and ability to maintain control.
The whale wasn’t in Ahab’s control.
Ahab failed to maintain control.
Does he thus lose? There’s an
exception! What about this “mortal
wounding” business? What about the
harpoon and the engraving on it?
We
look at the dicta from Pierson. Mortal wounding might be enough. If mortal
wounding is enough, does he win? Maybe
not. Did Ahab mortally wound the
whale? Let’s assume so. Did Ahab abandon his pursuit? Did he give up, or did he just plain fail? Abandonment is a question of intent, not just conduct. What about his reliance on the engraving on
the harpoon? How could you argue from
the engraving on the harpoon that he didn’t abandon the whale? Why did he put his name on the harpoon?
Maybe
Ahab wanted to signal that if he stuck his harpoon in a whale, it meant that he
did not intend to give up.
What’s
the policy underlying Pierson?
Is the policy to protect the hunter, or promote killing whales? The policy was to kill foxes, and we had a
competition between fox killers. But
here, we have no such competition. We
have an active hunter going against a passive washer-upper-on-the-beacher. The facts of the cases distinguish them. It can be argued that this case involves a finder rather than capture, and thus Armory v. Delamirie would apply.
Braunstein
sort of advocates a type of IRAC. You
can’t always resolve all the issues of facts, but you can identify what those issues are.
You can also include some policy reasoning.
Think
like a lawyer! Develop analytical
skill! (I think I should have paid a
little more attention to this.)
Finders – Armory v.
Delamirie
“It’s
an amazing case!” It’s a case that has
been taught forever. It’s 1722. It’s a rags
to riches story! It’s either an
employee or son of a chimney sweeper. Those
folks are near the end of the socioeconomic ladder. But he gets into court! He finds an attorney. He goes to court! He wins!
The justice system works!
The
“chimney sweeper’s boy” takes a jewel he found to the goldsmith. The goldsmith checked out the jewel and
refused to give it back. He offered a
penny and a half. The chimney guy says “NO!” He only got back the empty socket.
So
the chimney guy goes to court. He sues
for trover! He’s suing for the value of
the jewel. What does he win? He either gets the value of the actual,
factual jewel, or the maximum-valued jewel that could have fit in the socket he
has.
They
even had expert witnesses in this case!
The
chimney guy also gets 100% of the value of the jewel. Does he own
100% of the value of the jewel?
What’s
the actual holding of the case? The
prior possessor wins! Why should that
be?
1. The rule tends to result in
public order. The opposite rule would
encourage people to engage in force and trickery to get control of property.
2. The rule rewards people’s
reasonable expectations. Why do we care
about this? We want to engender a respect for the law. Screwed-up, unexpected results make people
think “the
law is an ass”. Braunstein thinks
this is kind of circular, though, and it doesn’t help you resolve many cases
because you have to decide whose expectations you’ll protect. There are actually more than one set of
expectations.
3. The rule encourages the use
of bailments (like leaving your shoes at the shoe repair guy or leaving your
car in a parking garage or taking your clothes into the cleaner). It is an important goal of property law to
encourage commercial transactions by making them easier and cheaper. I think Braunstein believes this is the most
applicable policy goal here.
How
did the chimney sweep get this jewel? Is
he a thief? When you find something in
someone else’s house and take it, that’s not what we usually call “finding”. That’s “stealing”. The court doesn’t give a moment’s thought to
that. If someone wants to claim that the
chimney sweep stole it, they can come forward and make that claim or go to the cops. But purely between the chimney sweep and the
shop owner, the chimney sweep wins because “first in time, first in right”.
Bailments
This
is a relationship between the bailor (prior possessor) and bailee, whereby the
bailor voluntarily transfers possession of the property with the expectation
that it will be returned. When you check
your coat at a restaurant or take your television in to be repaired, you give
your stuff to the bailee with the expectation you’ll get it back upon payment.
There
are two kinds of consensual bailments:
1. Express bailments – There’s
a little agreement on your claim check.
(I seem to recall that these aren’t enforceable as contracts.)
2. Implied bailments – The law
will infer from the facts that the bailor did not permanently give possession to the bailee even though they didn’t
say anything explicit. For example: “Can
I use your book?” The expectation is
that I’m going to give the book back to you when I’m done.
There
are also non-consensual bailments:
1. Finders – Take Armory for example. The chimney sweep was both an implicit bailor (as far as the jeweler was concerned) and also a bailee (as far as the true owner of the
jewel was concerned). In the latter
case, there was no agreement at all.
2. Thieves – These dudes are
bailees too, in that if you find the person who took your stuff, you can force
them to return it to you.
We
classify bailments in terms of who gets the benefit of it. The reason we do that is that it affects the
standard of care.
1. If the bailee is the sole beneficiary, the bailee is liable
to the bailor for even slight negligence
that results in damage to the property.
2. If the bailment is solely for the benefit of the bailor, then only gross negligence on
the part of the bailee will cause liability.
3. When the benefit from the
bailment is mutual, then the bailee will only be liable if his conduct was
characterized by ordinary negligence.
What’s
the difference between “slight negligence”, “gross negligence” and “ordinary negligence”? “Somebody once said it’s the difference
between a fool, a damn fool, and a goddamn fool.”