Property Class Notes 1/23/04


A little more about Texas American


The court talked about the long-standing Kentucky case of Hammonds.  Braunstein suggests that the problem with this old case is that they adhere too rigidly to the Pierson analogy.


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”.




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.”


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