LAWS2012 â Introduction to Property and Commercial Law Notes
LAWS2012 – Introduction to Property and Commercial Law Notes
B y M a x G a o
Fall
14
Table of Contents CHOSE IN POSSESSION
3 4-‐5 6
TRANSFER OF OWNERSHIP BAILMENT CHOSE IN ACTION
7
TRUST SUCCESSION RIGHT AND INSOLVENCY
8-‐9 9-‐10
ASSIGNMENT
11
DISPOSING EXISTING EQUITABLE PROPERTY FUTURE PROPERTY
12 13
PRIORITY
14
EXCEPTION TO NEMO DAT PRIORITY CONTEST SECURITY INTEREST
14-‐15 16-‐17 18-‐19
Possession (evidence of ownership – The Tubatia) • Physical Control o Question of Fact (what control is the thing capable of?) o Need not to be complete dominion • Amicus Possedendi o Intention to take as a whole o Intention to exclude others
Ownership (residue rights a person has in an asset after some rights have been granted – Re Jigrose) • Chattels must have owners • Abandonment: o Intention of the owner o Construction of the K • Appropriation by purchaser o Manifested intention to exercise control
Choses in Possession
Custody (on the premise, assumed guardianship) • ANZ Banking Group – o Actual control and legal possession o Control can be shared
Concept of Delivery
Actual delivery – handing over of physical possession Constructive (symbolic) delivery – no change in actual possession, a change in the character of an uninterrupted custody (Akron Tyre v Kittson) • Seller in possession, after sales, attorns to the buyer (Elmore v Stone) • Buyer in possession, after sales, holds b y his own account (Gamer’s Motor v Natwest) • 3rd party in possession as bailee to the seller, after sales, attorns to the buyer, bailee for buyer (Gamer’s Motor v Natwest) Symbolic Delivery – Chattel incapable practically of actual delivery • Giving key is sufficient – transfer of control of the thing (Gamer’s Motor v Natwest)
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Transfer of Ownership Lost and Found •
Preliminary Questions: o Lost or abandoned? o Who can claim? o Location of the chattel? Finding on premise
•
Occupier has better right than finder (NCA v Flack) o Finder (Parker v British Airway) § Takes it into his care/control § Acting dishonestly – no right § Better right to possession but the owner or the person asserting prior right § Servant/agent – find in the course of employment – employer’s find § Reasonable care of the chattel and try to find the owner o Occupier (Parker v British Airway) § Right to item in the premise whether or not aware of its presence (NCA v Flack) § If not attached to land – manifested intention to exercise control – degree varies according to premise § Reasonable steps to find the owner
By Gift Preliminary Questions: • Is it a Chose in Possession • Is it inter vivos/Donatio mortis causa • 3 ways to make a gift – Nolan v Nolan o Deed o Trust o Delivery of property with intention to make a gift § Unequivocal Intention to make a gift § Intention to take the gift § Effective Delivery (intention must persist at the time of the delivery) • Actual • Constructive •
Delivery in Common Establishment o An unequivocal act shows delivery, mere words is not enough - Re Cole o Possession of mother at the time, pre-existing possession and custody is enough, there is no need for further delivery – Horsley v Phillips o Donor must give possession, not for donee to take possession, exception when donee is in such control that donor must retake it in possession first § Not effective if donee only has custody to use it from time to time Tullberry v Sutton Donatio Mortis Causa
Public Trustee v Bussell o Made in contemplation of death o Delivery of subject matter or transfer of ‘essential indicia of title’ o The act must amount to a gift conditional on taking effect on donor’s death and revocable until such event occurs
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