Class Notes in Legal Environment of Business
Class Notes in Legal Environment of Business BL 2413
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This 24 page Class Notes was uploaded by Brandon Veller on Sunday February 28, 2016. The Class Notes belongs to BL 2413 at 1 MDSS-SGSLM-Langley AFB Advanced Education in General Dentistry 12 Months taught by Cecilia Cook in Spring 2016. Since its upload, it has received 29 views. For similar materials see Legal Environmental Business in Business at 1 MDSS-SGSLM-Langley AFB Advanced Education in General Dentistry 12 Months.
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Business Law Chapter 3 Court Procedures Adversarial System – Adversaries meet at neutral field with same procedures so that outcome will be just. Procedural law – how case goes through system. 3 steps: o Pre trial procedure Cover the pleadings – legal document. Complaint/Petition – identify parties, state jurisdiction of the court, give facts, and ask for relief (statement of remedy). A summons – service of process. Who where and when. Goes to defendant with the copy of the complaint. This is how we meet our due process. (Requires notice and opportunity to be heard) Defendant’s answer. Very little info but important to fill out. Do not ignore court summons b/c failure to answer = automatic loss and the plaintiff wins. o Discovery – learn about other side’s case. Prevent any surprises. Find out everything that is presented to trial. 6 methods Deposition Sworn testimony given in an out of court setting. Testifying at trial. Missing judge. Can take from a parties AND witnesses. Very expensive however. Important b/c memories fade; sometimes witnesses are not available at trial. Interrogatories written questions. Problem: limited to parties ONLY. Standard question, who what when. Requests for admissions Establish facts that can be used at trial. Admit that so and so was going on that road. Admit that you were in an accident. Problem: Attorneys sometimes try to slip something into it. Request for examination Mental or physical examination. Allow both parties to examine injuries to reach a real answer. Request for production of documents commercial litigation. Businesses keep everything on file: Contracts, memos, who was where, etc. Some try to hide harmful documents with thousands of other documents. Allow lawyers to get a hold of all the documents to find this harmful thing. Electronic Discovery getting info electronically through CPU’s, phones, tablets, iPads. Any documents, blogs, texts, pictures, etc. o Pretrial conference – Conference between judge and attorneys. Used to narrow issues, what do we agree on and what are still the problems? o What happens at trial itself 1) Judge, attorneys, parties, court reporter, clerk in court, bailiffs. 2) Jury selection – process called voir dire. Means to speak the truth. We ask potential juries questions to select an impartial jury so there is no bias opinion. 3) Opening statements Attorneys tell the story of their case. Name witnesses. Prove that their case is right. 4) Presentation of the evidence Pinnacle of establishing the case. Can be demonstrated. Objects, facts, documents, eyewitnesses, expert witnesses. Plaintiff goes first in giving evidence b/c the plaintiff has the burden of proof (by a preponderance of the credible evidence. Case has to be established to a legally sufficient standard. Just enough evidence to cause the jury to find the plaintiff’s side.) Use every little piece of evidence to give yourself the best chance possible. 3 rules to evidence: o Must have relevant evidence – prove or disprove a material fact to this case. o Hearsay – excluded from the jury b/c it is inherently unreliable. Testimony offered in court regarding an out of court statement over heard by the witness. Someone told them that it was said. Basically gossip. o Best evidence rule – applies to documentary evidence. If we are going to have testimony about a document, we must have original document. And secondly we must have the person that prepared the document. Defendant that presents their evidence with the same rules applied Plaintiff gets one more chance, which is their rebuttal in order to establish their case. 5) Jury’s verdict – jury goes back to vote on their decision. One of two forms: Fine for the plaintiff in the amount of x dollars. Meaning the plaintiff met the burden of proof. Or in favor of the defendant. They are innocent. o Post trial Two options: Appeal trial Enforcing the judgment Jury in favor of plaintiff decides how to collect judgment. o Collect judgment: Writ of execution – seize the defendant’s non-exempt assets. Anything that is considered wealth or a luxury. House is exempt but not vacation homes Writ of garnishment – wage earners. We can take up to 25% of your take home pay until the judgment is satisfied. Doctrine of Res Judicata Res = thing Judicata = judged. It brings finality to judicial decisions. Prevents re-litigation. Chapter 4 – Business and The Constitution Articles of confederation – big power to states. Little national power. Big problem So we adopted the US Constitution in1787. Constitution – Sets out the framework of government and the relationship of the government to those governed. US Constitution establishes Executive, Legislative, and Judicial branch Expressed powers – They are fully written. What we see written in the Constitution Implied Powers – Comes through judicial interpretation. Federal Powers – Powers that are reserved exclusively to fed gov’t. Declaring war, international relations. Police Powers – not limited to criminal actions. Have to do with how the gov’t interacts with its citizens. Promote and provide for in health, education, protection, and public order. Traffic regulation, zoning (land use), health regulations Shared Powers – EX: taxation. Where federal and state police share powers. Privileges and Immunities Clause – article IV. Says that the citizens of each state shall be entitled to the privileges and immunities of the several states. Means that no state can unreasonably burden the citizens of another state (non resident). Applies to individuals and the commercial environment. Can’t treat a non-resident differently. Governs contracts, employment, access to courts, and banking. Can’t vote though in more than one state. o Exceptions – 2 of them. Hunting licenses: have to buy out of state license. Out of state tuition. Has to do with revenue Full Faith and Credit Clause – article IV. Says that every state shall give full faith and credit to the public acts, public records, and judicial proceedings of every other state. o Public acts = laws. If you break laws in other states your state must recognize it and send you back to the state so you face the trial. o Public Records = marriage license. If you get married in one state, you’re married in every state. o Judicial Proceedings = if you are a convicted felon in one state you are one in every state. Due Process – fundamental fairness. Mentioned in Constitution in th two places. 5 (life, liberty, or property; actions of federal gov’t) and 14 (Equal protection; Extends due process to actions of state gov’t) amendment. Bill of Rights – Rights given that cannot be restricted without some substantial reason. Applies to individuals and businesses. o 1 amendment – four basic freedoms. S.P.A.R (speech, press, assembly, religion). Press: Citizen’s right to know. Open information Assembly – right to assemble (form groups basically) Speech – Free voice to state opinions. Is not an absolute freedom. There are areas of unprotected speech: Any speech that violates criminal laws Threats/fighting words Defamatory speech Prurient speech: offensive, obscene, arouses unnatural interest in sex, obsessive sexual conduct. Lacks redeeming merit or value. Religion – Gov’t shall neither establish religion nor prohibit the free exercise there of. 2 clauses: o Establishment clause – No state sponsored religion. Separation of church and state. Cannot favor one religion over another. Not really freedom of religion but freedom “from” religion. School curriculum – creationism versus evolutionism. o Free exercise Clause – Can hold any religion within the confines of the religious grounds. Prohibits gov’t from acting. But gov’t can get involved in cults if they violate laws or one segment of society appears to be preyed upon. o 2 ndRight – The right to bare arms. Very controversial. What constitutes arms? What are arms? Should there be limitations on guns? rd o 3 amendment – Quartering troops. Citizens don’t have to house or quarter troops. o 1,4,5,6, and 8 amendments are the important ones o 4 amendment – Unreasonable searches and seizures. We protect search and seizure through warrants. Warrants must be issued based on probable cause. That means that a police officer must stand in front of a judge/magistrate and express probable cause. Probable cause – more likely than not. Must explain why they want warrants. If officer exceeds warrant and looks somewhere where it can’t, that evidence will be excluded. th o 5 amendment – contains 5 protections: 1) Due process 2) No self-incrimination – Cannot be compelled in testimony that might lead to criminal action based only on your words. Right to remain silent. 3) Double Jeopardy – cannot be judge over the exact same case 4) Property cannot be taken for a public or private use without compensation. Immanent domain – gov’t is building a road and it’s going through your property. They can take it but you will be compensated for it. 5) All criminal actions are presented through a grand jury. th o All provisions in the 4 amendment apply to people and businesses. When it comes to self-incrimination, that doesn’t apply to businesses. Only people o 6 amendment – 6 protections 1) Right to an attorney 2) Right to a speedy trial (271 days) 3) Right to confront the witnesses against you. Right to cross-examination. 4) Right to call witnesses on your own behalf 5) Right to be informed of the nature of the charges against you. 6) Right to a jury of your peers. Apply equally to businesses and people. The rights were expanded and applied in the 1960’s with the Miranda case. 6 amendments = the Miranda Rights. o 7 amendment – Civil case at law where damages exceed 20thollars will be heard be a jury. o 8 amendment – 2 provisions: 1) Cruel and unusual punishment – ex: application of death penalties. Utah was the only state to not abolish their application of the death penalty and still uses a firing squad. Everyone else now uses lethal injection. 2) Excessive fines and bail – fine needs to fit the crime. Bail cannot punish. Bail is only there to make sure you come back. Nothing more than your opportunity to be free from custody while you await trial o 10 amendment – whatever isn’t reserved for the federal govth is reserved for the states gov’t o 14 amendment – State due process. Known for equal protection. Gov’t cannot pass laws that treat similarly situated citizens differently. We can’t have laws that apply to one group but not tthanother.th o How we apply the 5 and 14 amendment together. Here’s the difference: If a law violates the rights of all citizens then it violates due process. If a law violates the rights of some citizens then it violates equal protection. Due process = ALL… Equal Protection = Some. o Privacy Rights – Privacy is not mentioned anywhere in the constitution. Has come through us in judicial interpretation. Right to be free from gov’t intrusion. Goes from 1928 comes up with doctrine. Penumbra Doctrine – Privacy is a penumbral right. Ex: right to travel, right o pick your own vocation, right to have children. Roe v. Wade abortion privacy rights. Family educational privacy act (FERPA) – allowing the parents to look at grades in your account in college. Business Law Chapter 2 Two distinct court systems: Federal court system and every state has a court system. Parallel systems meaning you can’t go between one or the other. What is a court and what does it do? o It interprets and applies the law to specific facts and circumstances Marbury v. Madison – Introduced the doctrine of judicial review to the court systems. Rendered in 1803. Gives supreme court the power to review acts of congress. 4 Basics of the court system: o Jurisdiction – Power of a court to render a binding decision. Juris – Law Dicto – Speak Tells us where we need to be so when we reach remedy we can enforce it. Types: Personal jurisdiction – gives court the power to bring a person into court. DUE Process- 5 amendment, It is fundamental fairness o Two prongs – Notice: defendant finds he/she is summoned. o And then the right to be heard. Long Arm Statutes – We bring an out of state defendant back into the state court. Can includes businesses and corporations as well as individuals o Minimum contacts – once you cross into a state, you must follow the laws of that state. Subject Matter jurisdiction – is statutory… It cannot be waived (given up). Can’t change jurisdiction. Look at it as being either general or limited. o General can hear many types of cases. Ex: circuit courts o Limited can only hear certain types of case. Youth court is inly in youth court. Justice cases cannot hear cases with damages for more than 5000 dollars Original or Appellate: o Original – where case begins o Appellate – A court of review. Do not try cases Federal court jurisdiction – 2 types o Federal question jurisdiction – applies when there is a federal statute involved. Ex: Article 9 case. Violation of civil rights o Diversity of citizenship – All parties must be citizens of different states and damages must be great that 75,000 dollars. Jurisdiction can be exclusive or concurrent: o Exclusive – only 1 certain court can hear cases. o Concurrent – can be heard in a couple types of courts. o Venue – Is geographic. Tells us where the court is. If it involves a crime, where did it happen? Venue is nothing more than where Venue is statutory but it can be waived. We can move it Can change venue for fairness o Standing to sue – Standing makes sure we get proper people in court. Have a vested interest in the outcome. You have a stake in the outcome. You will be personally affected by the outcome. Known as parties of interest. 3 requirements: Harm – grave danger of harm or actual harm has already occurred Causation – connection between the threat and the injury. Deals with conduct Remedy – Court has to provide a remedy for what you seek. If the can’t help you, then you don’t have standing in that type of court. o Case and controversy – Requires that we have a real case. Something must have happened. Court doesn’t deal with hypotheticals nor do they give advice ahead of time. State court systems: o 3 levels of court: State trial courts: Work horses… This is where everything happens. All evidence is shown, any kind of documents that need to be brought up, witnesses, etc. 2 important bodies: Judges (they are elected): Finder of law. Meaning it’s the judge that is going to decide, interpret, and apply the law. Jury – Finder of fact. Meaning that they answer all the fact questions. They hear the evidence, see the witnesses, and witness people’s credibility. Court of Appeals – intermediate court of appeals. This is a court of review. Only reviews what happened at the trial court. It is not a do over. No witnesses and no evidence. They review the trial transcript that is prepared by the court reporter (He takes down every word that is spoken during the trial). Attorneys Brief is a paper telling the appellant court what the judge did wrong or how the court cited certain evidence or rules wrongfully. State Supreme Court – Appeal is discretionary, they have to want to hear the case. Makes the final decision in all matters of state law. Cannot go any higher than this. One exception though is the death penalty case. Federal Court System: o Divided Geographically to determine federal court districts Trial Courts = District Courts – Every state has at least one federal district court. 94 district courts in US. Presided over federal judges (appointed for forever). Just like a state court. We have a judge and a jury. Circuit Courts of Appeal – 13 in US. 11 are geographic. We are in the 5 circuit, which has MS, LA, and TX. US Supreme Court – Judges are called justices in Supreme Court. Discretion: US Supreme Court is presented which 1000’s of appeals and usually only hear about 100-110 per year so the cases must be landmark cases that are very important. Begin with a filing of petition for certiorari (petition for cert). Cases are then assigned for each one of the justices. Their clerk reads everything and decides what are important to send to their judge. Justices then meet every Friday and vote (the rule of 4). At least 4 justices must vote in the affirmative in order for the case to be heard. If rule of 4 applies they send out a writ of cert to bring the case up to the Supreme Court. They listen to the court and then either affirm the case, reverse, or remand (send it back) to the court where it came from to fix the problems. Alternative Dispute Resolution (ADR) o Outside judicial process. Reach a resolve w/out going into courthouses. It’s quicker, less expensive, work out disputes. o The big 3: Negotiation – Voluntary. Find a way that both people can accept. Mediation – Overseeing. 3 party comes in (mediator) usually lawyer/retired judge. Parties gather in separate rooms and mediator goes back and forth to hear the arguments. Problem can go through whole process and end up back at the beginning b/c decision is not binding on the parties. Ex: divorces, child custodrd Arbitration – Requires 3 party called arbitrator. The decision is binding. Decision will be as final as if it came from judge. Both parties sign contract and agree that whatever the arbitrator decides is the final decision that must be followed. Business Law Chapter 1 Significance of law: John Locke: 1600’s English social philosopher. “Where there is no law there is no freedom.” Provision of freedom- at the very basis of laws comes the freedoms we enjoy as citizens 3 things the law does for 1) Law provides us with stability and predictability: o We know the likely hood of a lawsuit because of what has gone before 2) Allows citizens what is legally right and legally wrong o “Ignorance of the law is no excuse” 3) It provides rights, duties, and privileges: o Right- Legal capacity to require another person to act or refrain from acting. o Duty- Legal obligation to act or refrain from acting. o Rights and duties are absolute and apply to everyone. o Privilege- can be taken away. They only apply to a few individuals. Law- consists enforceable rules governing relationships among individuals and between individuals and their government. Single most important influence in your everyday life. Sources of a law: 4 sources of law. o 1) Constitutional Law- United States Constitution and State Constitutions. US constitution is the bedrock of all laws that are made. The US Constitution is the Supreme Law of the land (Article 6). It is a living document meaning it can change. Interpreted by the Judicial System. We have expressed rights (written and stated) -> Bill of Rights. o 2) Statutory Law- Laws that are enacted by legislative bodies. Federal laws by US Congress. State Laws by state legislatures. National laws affect everyone and state laws. And the municipal/local interest laws ex: when garbage is picked up. ALL criminal laws are Statutory. o 3) Administrative Law- the rules and regulations promulgated by administrative agencies. Ex: President’s Cabinet, CIA, FCC, Department of transportation, planning and zoning, Parks and Rec. o 4) Common Law- Heart of legal system… JUDGE MADE LAW. Every time a justice makes a decision, he either makes new law or follows prior decisions. Precedent- Following what has gone before. Doctrine of Stare Decisis… Latin for “let the decision stand”. o Kings Court- Early 1200’s-1400’s where king appointed judges. o Court of Law- Remedies- Land, Money, and other valuables. A solution basically. Circuit courts deal with this. Also we have introduced punishment. o Courts of Equity- Looking for something more than the remedies in a court of Law. Wills, Divorces, Contracts, etc. MS has Chancellery Courts. o Rosco Pounds, 1800’s: “The Law should be stable but never stand still.” Things change overtime and the law has to keep up with that. EX: Allbright Factors that decide which parents gets custody of a child in a divorce. Also Plessy v. Ferguson supreme court says Separate but Equal 50 years later 1953 Brown v. Board overturns separate but equal, separate is inherently unequal. Classifying Law… 4 way: o Law can either be substantive or procedural Substantive = subject matter Procedural = case proceeds through the court system. How do we let defendant know that a case has been filed against them? What evidence can be presented to the jury? o Civil or Criminal Law: Both are substantive law. Civil = Laws that applies among individuals. Rights and duties of individuals Criminal = Deals with the wrongs committed against society. Styles United States v. Person o Laws can be private or public: Private = dispute between individuals Public = between gov’t and individuals o Classifying law by remedy: Courts of law: see above Courts of equity: see above o Chapter 6 – Torts Purpose of Tort Law – to make an injured party whole again. Usually by money compensation. Tort – civil wrong that results from wrongful unreasonable behavior. Deals with both person and property Source of Law is common law b/c determining behavior. Decided on a case-by-case basis depending on the facts and circumstances. Fix the injured person through civil remedies: o Compensatory damages – Actual damages. Can see actual dollar amount. How much doctor’s cost, total value of your injured car. Property damage. o Consequential damages – special damages. Hard to quantify or put $ amount. Ex: Loss of companionship, disfigurement, loss of earning capacity, pain and suffering o Punitive damages – punishing the party that caused the problem. Usually unreasonable behavior, gross negligence. Product liability cases usually are these. Most common are drug cases that have defective drugs. As long as the company informs the user about the possible side effects then there is no case. o Nominal Damages – aka “So what” damages. All cases are always awarded $1. See this in trespassing cases. If someone trespasses and does not damage the land, so what. But when someone is injured, the first two are the main two that we go to compensate the person. Burden of proof – By a preponderance of the credible evidence. 3 basic areas of tort law – o 1) Intentional torts – done with intent. One time that intent does have its true meaning. Something done with purpose. Committing an act knowing the likely outcome. You don’t have to intend to hurt someone but you know the likely results of the action. “Even a dog knows the difference between being kicked and tripped over” --- Oliver Windle Holmes Types: 1) Assault – placing a person in fear of immanent harm. Just apprehension of harm. Reasonable belief that someone is going to hurt the other right now. They don’t ever touch you but place you in fear of being harmed. Purpose – to protect you from fear 2) Battery – A harmful offensive, unpermitted contact. Some kind of physical contact. Being actually hit. Either directly (with hands) or indirectly (with a bat). Offensive touching, spitting on someone, throwing a drink at their face. Transferred intent – when you intend to hurt someone but you end up hurting someone else 3) False Imprisonment – The wrongful detention or confinement of another without justification. Justification could be an arrest warrant. No justification when you have no rightful or lawful reason to hold another. It requires that you know you are being detained. Also called the Shopkeeper’s Tort mainly because we give an exception to shopkeepers that deal with shoplifting. They have to hold the person for a reasonable time without force and the holding has to be based on reasonable suspicion. Shopkeeper can lose privilege if they use force, there is no reasonable suspicion, or held them for too long. 4) Defamation – Wrongful harm to a person’s reputation and standing in the community. 2 forms: Libel – The written word. Harming through writing. Also includes things that are stored electronically that can be stored forever. Slander – Spoken word. Does not have nature of permanence. 4 elements under defamation – False Statement - It has to be a false statement of fact. It is not an opinion. Opinions are protected. It also doesn’t include something that someone heard. As long as it isn’t stated it is defamatory. Identification – have to identify the person we are talking about. Just have to give enough info to identify. Publication – said to or in the hearing of a third party. Damages/Harm – Depends on person. Some kind of actual harm to give remedy for *** For a famous person/political person only: o MALICE – evil intent. Purposely Hamrful Only defense to defamation is the TRUTH. Political campaigns are protected more 5) Invasion of Privacy – involves the to solitude. Right to being alone. How to establish privacy? What is reasonable expectation of privacy. Protected from electronic eavesdropping. Free from heat monitoring ( as long as it is legal). 4 types: Freedom to be private and secluded – private affairs are private False light – involves associating a person with a cause that they don’t follow or support. Something that you aren’t a part of. Public disclosure of private facts – ex: tabloid publications. Appropriation of identity without permission or compensation – Can’t use someone’s picture without compensating them and informing them. 6) Fraud – intentional misrepresentation… fraudulent misrepresentation. Deceit, based on a liar. Deceived into taking an actin that has caused them harm. 5 element: a) False statement of material fact made knowing that the statement is false or with reckless disregard for the truth. b) Intent to induce reliance on the misrepresentation. c) Actual reliance on the misrepresentation d) Causal connection between the statement and the harm e) Damages Exceptions – o Puffery… Salesman’s talk. They basically hype up what they are saying. It’s opinion, not fact. o If you did not rely on the misrepresentation then there is no fraud. 3 intentional torts against real property: a) Trespass to land – entry onto another’s real property with their permission b) Trespass to personal property – trespass to chattels (personal property). The taking of another’s personal property without permission c) Conversion – depriving (keeping) another person’s of their personal property. o 2) Negligence – The failure to use due or reasonable care toward another person or their property under the facts and circumstances. ALWAYS a jury question. Based on a reasonable prudent person (what would a reasonable person do). 4 element: a) A duty b) A breach of duty –failure to exercise the duty of a reasonable person. c) Causation – connection between the failures to act as a reasonable person. o Connection between injury and remedy. 2 tests: “But for” test – but for the fact that you were speeding, the accident occurred. Proximate cause – requires foreseeability. Means that it was foreseeable that the injury could occur o Pals Graf v. Long Island Railway landmark case – 1928 established proximate cause d) Harm/Damages o Beginning of chapter. 5 other things when establishing negligence: o 1) Contributory negligence – what did the plaintiff do to contribute to the accident. If plaintiff has any fault, there is no recovery. o 2) Comparative negligence – Jury will compare percentages of fault and reduce the plaintiff’s recovery based on percentage. o 3) Assumption of the risk – requires that plaintiff knew and appreciated the danger or potential harm and voluntarily participated. o 4) Doctrine of Res Ipsa Loquitor – Means the thing speaks for itself. Injuries are obvious. Helps establish negligence b/c we have an injured party but you have no knowledge of why you are hurt. o 5) Dram Shop Acts – One area that is statutory. Originally were drugs from pharmacies. Service of alcohol. Holds bar keeper’s, bar owner’s, and bar tender’s liable when guests were over served. Extends to wait staff as well. Recently extended to social hosts of parties as well. Land owner liability – duty: the reason the person is there A) Trespassers – people there without permission. Duty to a trespasser on your property is not to intentionally harm. They are not trying to hurt you they are just passing (this is just for torts). You can’t set traps. 1950’s Katko v. Briney: Spring gun case. US Supreme Court said that they would always put a higher value on human life than mere property rights. B) Liscensees – Social guests. Coming for their own enjoyment. Duty is to warn them of non obvious dangers. C) Invitees – Our customers. People that are their for the owner’s benefit. Have to inspect property and correct any danger. o 3) Strict or absolute Liability Chapter 49 – Real Property Aspects of real property (Land and anything attached to it permanently) Has the characteristic of it being immovable Can describe but we cannot hold it. Couple of interests------ o 1) Land and structures: soil, natural products (oil, minerals, gas) Water that is on or under the land as well. Own everything from the ground to the center of the Earth. Subjacent drilling – People cannot dig into your property and take what is yours. o 2) Airspace above the land. From the ground to the heavens. Exception: Airplanes because of how high it flies it doesn’t need permission from you to go through your airspace. New query are with drones. How should we deal with that and property rights. o 3) Crops and vegetation – naturally occurring and crops that are planted. Ownership is represented by title and you own it in fee 3 different ways of ownership: o 1) Fee simple absolute – highest, the best, the most complete ownership you can have. It means that it is yours alone, now and forever. You can enjoy any rights (right to use, enjoy, exclusivity, disposal) and you decide what happens to it once you’re gone through a will. As long as enjoyment is legal and you do not interfere with anyone’s property rights, you can do whatever you want. o 2) Life Estate – you have the use and enjoyment of your property, but only for your lifetime. It is a good estate- planning tool. Sell the farm but create a life estate to be able to use part of it for the remainder of your life. Not the other persons until you die o 3) Concurrent Ownership – Ownership is shared with people… When you own property with someone else you own an undivided interest in the hole. If there are two owners you cannot split up the and divide the land. Everything is owned by both people 4 types: a) Tenancy in common - Interest is inheritable. There is no survivorship. If two people own as tenants in common and one dies. Their tenants in common pass to their heirs. b) Joint tenancy – The right of survivorship. Like the last man standing. The last surviving co-owner gets to own it all. c) Tenancy by the entireties – Between a husband and wife. Neither party can sell their interest without the other. Both have to agree. Only way to pass entireties by death, agreement or divorce. d) Community property – Is limited to 10 states and Puerto Rico. Typically out west. If you move you need to know if you are in a community property estate. If there is a divorce, ALL property earned or brought into a marriage is community property. Which means on divorce it is split 50/50. Exclusions: inheritances, gifts, and premarital property. o Non possessary interests – You don’t own property but have an interest in it. 2 types----- Easement – gives you limited use of another person’s property. Ex: Pass across someone’s property. Utility company’s own easements. They can put up light polls or cables Profit – gives you the right to go on someone else’s property and take something away. Ex: Timber, topsoil, gravel. Chapter 48: Personal Property and Bailments Property –Our stuff. Anything that we own. But in the law, property encompasses more than just physical objects. It encompasses rights as well. o Right to possession – That is ownership… Title: nothing more than complete ownership. They are something physical. You can prove you have them. Ex: o Right to control property – you determine how it is used o Right to exclusivity – It’s yours. You can keep people away and off from it. o Right to enjoy property – use it for any legal purpose o Right to dispose of it* can mean throw away, but legally it means to sell it or trade it. Types of property: 2 types o Real Property – Land and anything attached to it. Includes structures, crops, trees, as long as they are attached to the property as well as embedded (oil, gas, minerals). It is immovable. o Personal Property – Everything else. Has to quality of movability. Chattels another word for personal property. Two kinds of personal property; Tangible – moveable things that we can touch. Intangible – We own it but can’t touch it. Ex: Stock, contracts, bonds, patents, trademarks, computer programs. Property can change characterization o Personal Property can become real property… A fixture is what we use. It is personal property that is attached or affixed to real property. It has lost its quality of movability. If it were to be removed, it would tear up both properties. Ex: Kitchen Cabinets, o Real property can also becomes personal property… Harvesting crops, extracting gas Concurrent Ownership: Property can be owned by more than one person or business entity Ways to acquire property: o Purchase it o Produced it o Possession – property that comes to you. Ex: wild animals on your property. o Accession – added to. We ass something of value to property we already own. Ex: Customizing cars o Gift – comes close to being a contract. Is a promise to make a gift enforceable? No. There’s is no legal obligation because there are definite requires for a gift to be legal: 1) Donative intent – the intent of the donor to transfer ownership freely. No cost attached. Can be litigated 2) Delivery – If you make a gift you must deliver it. Has to be delivered for it t Two ways: It can be physical actual delivery Or constructive delivery – I give you something that represents the gift. Happens to real property more. Ex: Giving a car, you had over the keys and title. 3) Acceptance – Person must accept gift for it to be completed. Two kinds of gifts: inter vivos – A gift between the living… Most common A gift causa mortis – A gift in contemplation of immanent death. Gift doesn’t apply if the person survives. Ex: death bed wish o Mislaid Property Property that someone voluntarily left there. They forgot it. Ex: Leaving a phone somewhere. You did not intend to leave it so No Title Passes. It is still the original persons property. o Lost Property Involuntarily left. Dropping a phone and not realizing it dropped. Finder of lost property acquires property. You have title against everyone unless the true owner reclaims it. o Abandoned Property Intentional leaving. If someone disposes of something you can claim property over everyone including its true owner. Title is all yours even if there was lack of intent when it was left on the curb. Bailment –creted when personal property is transferred by the bailor who is the owner of the property to the bailee who is the recipient without transfer of title. Merely a transfer of possession. Involves the entrustment of a person. Giving it for a period of time to look over or allowing them to use it. Based on an agreement. Contractual in nature. 3 elements to create one: o 1) It can only be personal property – see above. Ex: luggage at an airport. You entrust the airline to deliver it and still be in the same condition o o 2) Delivery of possession – Actual transfer of possession. We give possession and control to the bailee as well as them knowing what they are keeping. Bailee must be informed of everything to be held accountable for something that goes missing. o 3) An agreement – You can agree on anything to get the job done. The above is all Ordinary Bailments… 3 Types o 1) Sole benefit for the Bailor – gratuitous. Doing the bailor a favor. Basically caring for property while the bailor is away. The bailee has the duty of slight care. Cannot be grossly negligent. Bailee should treat it like it’s theirs. o 2) Sole benefit of the Bailee - “may I borrow”. Bailor is getting nothing out of it while the bailee is being able to using it. Still gratuitous. Bailee must take Extreme Care. If it is damaged the bailee is responsible to pay for damages. o Mutual-Benefit Bailment – Most Common. It involves compensation. I am going to pay you for the service that you are providing. One thing that is not covered by bailment is the rental of space. A mutual-benefit bailment is a valet service. It has to be reasonable care. A parking space that you pay for in a parking garage is NOT a bailment because it is just the rental of space.