Term
| In Order To Possess you need |
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Definition
Physical Control
Intention to Possess (and exclude others)
Knowledge of the good (not necessarily exact) |
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Term
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Definition
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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Term
| Onus to prove gift is good is on |
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Definition
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Term
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Definition
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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Term
| Heffron v Imperial Parking |
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Definition
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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Term
| Heffron v Imperial Parking Co (1974) |
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Definition
| Bailment Car stolen. Liability-limiting signage used. Passing of keys. 1) Contract can be used as the basis of a bailment 2)Further necessary action by the bailee will increase their liability |
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Term
| Bata v City Parking Canada Ltd (1973) |
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Definition
| Bailment Car stolen. "Charges are for use of parking space only." Passing of keys. Wording of the contract can be used to construe a license rather than bailment |
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Term
| Minichello v Devonshire Hotel (1967) |
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Definition
| Bailment Plaintiff leaves jewels in trunk of car and informs the attendant of it. Passing of keyts. Jewels stolen. Knowledge of the bailee is important for their extent of liability |
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Term
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Definition
| Bailment Plaintiff leaves jewels in trunk of car and informs the attendant of it. Passing of keyts. Jewels stolen. Knowledge of the bailee is important for their extent of liability |
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Term
| The Pioneer Container (1994) |
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Definition
| Sub-bailment of freight containers. The vessel sank. Liability clauses between parties. Privity issue. If a bailee sub-bails with the owner's authority, the relationship between the owner and sub-bailor is same as owner and bailor |
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Term
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Definition
| Parks his car. Pays a chilling. Car dissapears. His 'friend' took the car. Is this a bailment or a license agreement? Carpark wins, no possession passed, no bailment. |
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Term
| Palmer v Toronto Medical Arts Building (1960) |
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Definition
| The parking of the car was outside terms of his employment. Did not represent his employer and they cannot be held liable for his actions. |
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Term
| Irons v Smallpiece (1819) |
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Definition
The plaintiff claimed that his father had made a verbal gift to him of two colts about a year before the father’s death. The father retained possession of the colts until his death. Six months before he died, the father had agreed to sell the son hay for the colts. The father provided no hay until a few days before his death. The father’s executrix (defendant) refused to deliver the colts to the son. The son brought suit to compel delivery of the colts. The trial court held that there had been no valid gift because the colts had not been delivered to the son. |
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Term
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Definition
Delivery Copelin lends the organ to the church; he maintained ownership. organ is in the possession of the church (i.e. the churchwardens). Rawlinson has access to the organ, but does not have possession. 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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Term
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Definition
| Delivery Gave furniture to father in law via a deed of assignment but kept possession. Tried to save from creditors Valid |
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Term
| Re Zachariuc; Chevrier v Public Trustee (1984) |
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Definition
| Donatio Mortis Causa Gave directions for the plaintiff to find the money in his basement, while contemplating death, as he was not feeling well and D was going to bring a will in the morning for him to sign. Rule: (1) has to be given in contemplation of death; (2) has the idea of revocation, (3) has to be delivered prior to death (there can be constructive/symbolic delivery) |
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Term
| Grafstein v Holmes & Freeman (1958) |
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Definition
| Employer v Employee Owner of the shop instructs employees to put a locked box on his personal shelf 1) Manifestation of control existed through a direct instruction 2) Employer has rights to items over employees |
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Term
| Armory v Delamirie (1722) |
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Definition
| Finder v 3rd Party Chimney sweeper found a jewel and brought it to jewelry shop. Jeweler stole it. 1) A finder has rights over everyone but the true owner 2)An employer is responsible for its employees |
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Term
| Bird v Fort Frances (1949) |
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Definition
| Finder v 3rd Party Boy trespassed on private property and found a tin of money under the step. Police took the money. A finder has best rights if the the true owner does not make a claim, even if it was obtained through trespass |
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Term
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Definition
| Finder v Finder Shipwreck recovery. Two parties extract valuables from the scene. First party marked the boat. Work and labour can show a clear intent and action. Manifestation to control is important to establishing a property right. |
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Term
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Definition
| Finder v Finder Metal detector used to find a belt plate. Pl. gets first signal and began digging at site. Def. finishes hole and finds object. 1) Abandonment is a high threshold, once an intention to control exists 2) Experts in the specific field can be of aid to normal practice |
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Term
| Bridges v Hawkesworth (1857) |
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Definition
| Finder v Occupier Money found on floor of owners shop. Finder turns money in and advertises within the shop. 1) The occupier of a "public" place must have intention to control object (know of its existence) 2)The honest finder is rewarded |
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Term
| Elwes v Briggs Gas Company (1866) |
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Definition
| Finder v Occupier Leasee finds ship sunken in Earth. Owner of land wants rights to it. 1) Attachment to land shows an intention to control, regardless if the owner knew it was there 2) The owner of the land has better rights than a finder on private property. |
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Term
| South Staffordshire Water Company v Sherman (1896) |
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Definition
| Finder v Occupier Finding of rings during private pool cleaning. Found in course of employment. 1) Owner of private land has better rights than the finder regardless of their knowledge of the item 2) Items found in the course of employment will go to the employer |
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Term
| Parker v British Airways Board (1982) |
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Definition
| Finder v Occupier Bracelet found in the private section of the airport lounge. 1) Finder has greater rights than occupier in a quai-public place, where the occupier has no intent to control the item (signs, specific policy etc) 2)Stated intention by the finder to want the article can act as intention to control |
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Term
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Definition
| Finder v Occupier Finding of a brooch loose in a crevice of a house. The owner of the house never occupied it. 1) Without occupying the land there is no manifested intention to control 2) An unknown item not attached to the land does not give the owner intention to control |
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Term
| The City of London Corp v Appleyard (1963) |
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Definition
| Finder v Occupier Construction workers find a safe hidden in the wall they were cutting down. Lease said owner gets any items found. 1) Attachment to land shows an intention to control, regardless if the owner knew it was there 2) Any items found in course of employment goes to the employer |
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Term
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Definition
| Finder v True Owner Found a tin full of money in the chimney. Previous owner of house claimed rights to it. 1) The true owner has rights over the finder 2)Abandonment needs to have an intention to give up possession, not a mere mistake |
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Term
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Definition
| Finder v True Owner Money found by contractors in a fire extinguisher. Did not report to true owner. 1) True owner has better rights than finder 2) A finder must behave honestly |
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Term
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Definition
| Finders Marijuana in car. Lady knew of the drugs and drove around in a panic, was arrested for possession. Needs to be an intention to control to have possession (different due to criminal law) |
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Term
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Definition
| Finders Money in trunk of car seized due to person saying it wasn't his to police A statement of abandonment releases claim of possession |
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Term
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Definition
| First Finder Fox pursuit. Case between the chaser and the killer. Possession requires a certain control. When no previous possessor, ownership comes with possession. The animal must be wounded or killed to obtain its rights. |
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Term
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Definition
| First Finder Net almost closed around school of fish. Def. puts their net in opening of pl. net to allow some of the fish out. Complete possession is necessary. A mere attempt of possession is not enough. |
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Term
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Definition
| Gift Capacity Brother with depression gifts land to brother, after hearing D talk about feeling left out of inheritance from father. A gift must be made without undue influence (intention component) Two types of undue influence, express (give me X) and implied (using relationship to influence person), it was implied undue influence, used relationship, power imbalance, didn't use ILA or 3rd party. |
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Term
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Definition
| Inter Vivos Gift Husband shows wife furniture and exclaims "It's all yours". No witnesses. Previously used deed. 1)Delivery is necessary for a gift. 2)Lack of evidence will deny a gift 3)3rd Parties interests will be protected |
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Term
| Tellier v Dujardin (1906) |
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Definition
| Inter Vivos Gift D tells P piano in home is hers, this is corroborated by witnesses Evidentary element, words are not sufficient witnesses are necessary to fulfil component |
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Term
| Langer v McTavish Brothers (1932) |
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Definition
| Inter Vivos Gift Paintings off the wall each year, with note of Happy Birthday. Paintings kept in possession of donor. Ceremony can act as symbolic delivery, People witnessed the gifts, corroboration of father's intent and delivery was satisfied. |
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Term
| Beaurenschmidt v Beaurenschmidt |
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Definition
| inter Vivos Gift P gives D keys to car, kept a set of keys, p argued car was a gift Two parties had control and possession, need to find corroborative evidence to pvoe the other intended sole control. Absent evidence claim will fail. |
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Term
| Thomas v Times Brook Co (1966) |
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Definition
| Inter Vivos Gift Manuscript lost between pubs and a taxi. Person told by author if they found it they could keep it. 1) Delivery can be conveyed through directions 2)Evidence needs to be taken with suspicion |
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Term
| Beaverbrook Art Gallery Arbitration (2007) |
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Definition
| Inter Vivos Gift Debate whether artwork was a loan or a gift Evidence from publications and testimony can be used to show a donor's intention |
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Term
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Definition
| Joint Finding Boys playing with a sock and it breaks open to find money inside 1) Intention to control does not exist without knowledge of the items' existence 2) Moment of finding is determined when there is an intention to control 3) Joint finders have equal rights to the object |
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Term
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Definition
| Joint Finding Young boys find a bag , with an envelope full of money in a parking lot. Older girl picked up bag and brought it home, with the boys. 1) Age can be a factor in forming an intention to control 2) The finders gain their rights at the moment of finding (when they left parking lot) |
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Term
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Definition
| Joint Finding Baseball caught and dropped, and picked up by another person 1)Test for possession: a) the object must be lost or abandoned, b)must have an intention to control for the exclusion of others and c)actual physical control 2)A pre-possessory interest can establish possession |
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Term
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Definition
| Resulting Trust Joint account between parent and child, father had money in the account remaining when he died, child had to prove $ was intended to be a gift SCC says, gift is considered intervivos, as the primary account holder could drain the account, gift will be when the account is open jointly, it is on the Donee to prove it was a gift not a Resulting Trust. |
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Term
| Harrison v Carswell (1976) |
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Definition
| Right to Exclude Strike at mall Did shopping mall have sufficent possession to exclude. Depends, but mostly no |
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Term
| Committee for the Commonwealth of Canada v Canada (1991) |
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Definition
| Right to Exclude Handing out pamplets. Hinging on freedom of expression? Yes, infringing on section 1 due to location. |
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Term
| Watt v Watt Estate (1987) |
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Definition
| Trust Boat claimed to be owned by two people. Often stated upon inquiries to sell. 1)Trusts can be used to circumvent the delivery portion 2)Evidence of trust needs to exist prior to dispute |
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Term
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Definition
| Trust One -quarter of the horse promised to Moore by Benzon. Benzon gives Cochrane the horse. 1)Trust can be used to allow someone to hold title while someone else has possession 2)Knowledge of the trust is necessary |
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Term
| Victoria Park Racing and Recreation Grounds Co Ltd v. Taylor (1937) |
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Definition
| Nuisance & Quasi Property is Property? Elevated platform. Wanted the live broadcasting to stop so people would come. Majority: No nuisance Dissent: Bends the rules of dissent. No spectacle of property, merely looking over. |
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Term
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Definition
| What is Property? Copied news from AP. No property in the news, but in the work labour effort in making it. |
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Term
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Definition
| What is Property? Hired to obtain names from hotel employees No confidential information not theft under criminal code. No fraud either. |
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Term
| Moore v Regents of the University of California (1976) |
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Definition
| What is Property? Cells used and sold for 1 billion No work labour effort, no rewards. Dissent said a bundle of rights. |
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Term
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Definition
| What is Property? Sperm sells as property Yes, property because can be divided equally. Slippery slope. |
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Term
| Saulnier v Royal Bank of Canada (2008 |
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Definition
| What is Property? Bankruptcy fisherman Whether a fishing license constitutes property? Yes, under the BIA and PPSA NS they are. A "bundle of rights" |
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Term
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Definition
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Term
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Definition
You need:
1. A clear act
2. And intent to possess. |
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Term
| Clear Act with Abandonment |
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Definition
| Seals, as per Ziff, must return. Cases work within the rules of the sport (ie generic hunting rule from Pierson and Post). Others addressed other practices like this one. |
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Term
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Definition
1. Intention of Donor
2. Acceptance of Donee
3. Delivery |
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Term
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Definition
1. Signed
2. Sealed
3. Delivered |
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Term
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Definition
| On deathbed husband decides he wants to give more land to his wife. $1.00 a year. Where peppercorn theory comes from. Was this a valid gift? (No, no sufficient delivery.) |
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Term
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Definition
| Pick up a piece of land and pass it over to the donee in front of witnesses. Covers the evidentiary and witness aspect. |
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Term
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Definition
three matters must be certain
(1) the intention to create a trust,
(2) the subject matter of the trust,
(3) and the objects (beneficiaries) of the trust.
- However, there is no need for any physical delivery of trust property, and it is possible, although somewhat unusual, to create an express trust of personal property by means of an oral declaration. |
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Term
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Definition
| The equitable remedy of undue influence may assist a donor who has been coerced either expressly or impliedly because of relationship in recovering gifted property |
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Term
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Definition
| a gift made in contemplation of death; the gift is subject to revocation if the donor recovers and does not die. |
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Term
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Definition
| occurs anytime an owner parts with possession of a chattel for a specified purpose. Usually it is for repair, loan, or transport. |
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Term
| Burden of proof to establish a bailment falls on the |
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Definition
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Term
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Definition
1290-Statute of Quia Emptores
1535-Statute of Uses
1540-Will’s Act
1660-Tenure Abolition Act |
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Term
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Definition
| all interests for land, primarily for accurate tax reporting, 10th century census. |
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Term
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Definition
| The terms on which tenants held land in feudal era. |
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Term
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Definition
| Tenants directly under the king. They are called lords. (FREE TENURE) |
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Term
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Definition
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Term
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Definition
| Very bottom of the hierarchy. Unfree Tenure, at the will of the lord. |
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Term
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Definition
| When tenants would subinfeudate land, through the process of the tenure, to the church, and in return for that, the church would hold the land and say prayer for your soul (frankalmoign). |
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Term
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Definition
| Highest honor whereby you are allotted land by king and in return, for your loyalty, you were allowed to do things for him i.e. get him cups. (tenants in capite) |
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Term
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Definition
| Honour granted was centralized sense of protection of the courts |
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Term
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Definition
| Process of parceling land out where a piece of land can be split between multiple parties. |
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Term
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Definition
| Whenever tenancy came to an end, the land would return back to the lord. If the tenant was convicted of a serious crime or if they died with no heirs. This still exists but is the Crown. |
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Term
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Definition
| The right to immediate possession of legal freehold estate in land. Does not make you an owner of the land, but in absence of an owner, gives you rights that no one else can challenge |
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Term
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Definition
| It’s a formal ceremony where person seised of land (feoffor) can convey it to another (feffee) where the feoffor entered onto the land and in the presence of witnesses delivered land to feoffee. Literally picked up gravel and handed it over. This used to exist when land transfers were not put in a written contract (Then you got the Statute of Frauds and land registry system of each province. ) |
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Term
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Definition
| Carry with them seisin. These estates are of uncertain duration “till the holder’s death”. |
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Term
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Definition
| An estate which can be transferred inter vivos or by will or on intestacy. Heirs are now lineal, ascendant and collateral. Down the tree, then up the tree, then down the sides. |
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Term
| “O grants Blackacre to A and his heirs” |
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Definition
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Term
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Definition
| a limited fee simple. It limits the property transfer only to lineal descendants. Lineal descendants are direct descendants of the grantor, it could not go to nieces and nephews. This keeps the estates in the family. |
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Term
| O grants Blackacre to A and his heirs of the body |
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Definition
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Term
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Definition
| This was the original form of freehold estate and is the earliest founded at common law after the Norman Conquest. Lasts for the life of the grantee and that person is described as the “measuring life”. |
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Term
| O grants Blackacre to A for life |
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Definition
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Term
| O grants Blackacre to A and then to B and his heirs |
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Definition
| Life Estate – Creation of successive interests |
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Term
| O grants Blackacre to A for the life of C |
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Definition
| Life Estate – Pur Autre Vie |
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