Personal Property

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apgiering
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94226
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Personal Property
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2011-07-16 20:33:25
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NY Bar Exam
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NY Bar Exam
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  1. What is a bailment?
    The relationship created by the transfer of possession of an item of personal property by one called the bailor to another called the bailee for the accomplishment of a certain purpose.
  2. Is there a transfer of title in a bailment?
    No.
  3. Is an express contract necessary to create a bailment?
    No.
  4. How do you create a bailment?
    The bailee obtains actual or constructive possession of the item of personal property, i.e., physical custody over the property couples wiht intent to exercise control.
  5. Must a bailee have an intent to accquire possession of personal property to become a bailee?
    Yes, either specific or generic.
  6. Can a bailment be created where the bailor attempts to force possession of the item of personal property upon the bailee?
    No. No affirmative duties can be imposed on a possessor under these circumstances.
  7. Is it essential that the bailee know the precise nature of the item being bailed for a bailment to come into existence?
    No, as long as she has a general intent to receive the item.
  8. Does a parking lot attendance become a bailee of the automobile it receives plus all personalty contained therein?
    Yes, as long as such items are normal contents of a car.
  9. Does parking a car in a parking lot constitute the renting of parking space or create a bailment?
    It demends on whether the owner has surrendered control over the car to the garage. Turning over the keys by the owner to the operator of the garage indicates the creation of a bailment.
  10. Is a bathhouse keeper a bailee of the clothes in a bathhouse locker?
    Yes, despite the fact that the person using the bathhouse locker does not surrender the key.
  11. Is the relationship between the proprietor of a safe deposit vault and one who rents a box that if bailor and bailee?
    Yes.
  12. Does the ordinary possession by a servant of her master's goods constitute a bailment?
    No. The servant merely has custody of the goods. The possession and control of the goods remain wiht the master.

    In a bailment, the bailee has the right of possession and control of the goods, for the term of the bailment, against the world including the bailor.
  13. In a bailment, who has the right of possession and control of the goods?
    The bailee, for the term of the bailment, against the world including the bailor.
  14. Is a garagekeeper a bailee for hire?
    Yes.
  15. Can a warehouseman limit the amount of his liability in case of loss or damage to stored goods (but not for conversion to his own use) by including a limitation provision in the warehouse receipt or storage agreement?
    Yes. On the other hand, the bailor may request in writing that the warehouseman increase the amount of his liability, but the warehouseman may then chrage increased rates.
  16. For a checkroom (coatroom) deposit, what can a patron suing for negligence recover under New York law?
    • The value of the coat if negligence is shown, and a fee is charged for checking the coat, and a value in excess of $200 is declared and a written receipt stating the value is issued when the coat is given to the checkroom attendnat;
    • $300 if a value in excess of $200 is declared and the other conditions are met, but negligence cannot be shown; and
    • $200 if no fee or charge is exacted or a value in excess of $200 is not declared and a written receipt is obtained when the coat is delivered.

    NOTE: The owners of hotels, motels, or inns must conspiciously post copies of the statute. The posting requirement does not apply to restaurant owners.

    NOTE: The above statutory porovisons do not apply when the customer sues for theft by the owner or the owner's employees.
  17. What must the owners of hotels, motels, or inns post in order to limit recovery for a checkroom deposit according to New York law?
    Conspicuously post copies of the statute.

    NOTE: The posting requirement does not apply to restaurant owners.

    NOTE: The statute does not apply when the customer sues for theft by the owner or owner's employees.
  18. Are restauranteurs liable for coats on hooks near a guest's seat?
    No.
  19. Is a storekeeper a bailee of articles necessarily laid aside (e.g., old coat is put aside while trying on a new one)?
    Yes.
  20. Is the bank a bailee of deposits received during the period after its closing time and the opening of its next business day?
    Yes.
  21. What is a pledge?
    A particular type of bailment by which the bailor delivers property to the bailee to secure a debt owed by the bailor to the bailee. Title to the property remains int he pledgor. The property may be sold if the pledgor defaults in repayment to the underlying debt. Unauthorized use of pledged property by the pledgee does not terminate the pledge, but an inability to restore the article when the pledgor completes payment ont he debt is a conversion.
  22. How does a consignee differ from an ordinary bailee?
    She is authroized to sell the goods in the ordinary course of trade.

    In a true consignment for sale, the consignee is not only a bailee but also an agent of the consignor to sell the goods.
  23. How is a sale distinguished from a bailment?
    A sale invlves the transfer of title to the vendee, as distniguished from a bailment, which involves merely a transfer of possession to the bailee.

    In a sale of goods, the loss of goods is sustained by the vendee because she is the owner. In a bailment, the loss of goods falls upon the baior because he has title. When the identical thing delivered is to be restored in the same or an altered form, the contract is one of bailment, and the title to the property is not changed; but when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value or the money value, and the title to the property is changed, it is a sale. A sale on approval is a bailment, the bailee having an option to purchase; a sale or return is a sale, which becomes a bailment if title is revested in the vendor by the vendee.
  24. What are the bailee's rights durig the running of the bailment?
    Possession and use.
  25. Does the bailee have the exclusive right to possess the property in question during the running of the bailment?
    Yes, provided she is exercising this right according to the terms and conditions of the bailment.
  26. Can the bailee maintain an action in conversion or replevin against third parties who interfere with her possession?
    Yes. She can even maintain such an action against the bailor.

    Unless she is a gratuitous bailee, she may replevy even as against the bailor to recover possession.
  27. Does the bailee have any right to use the item of personal property bailed?
    Only in a manner that is expressly or impliedly agreed upon with the bailor.
  28. Does any intentional unauthorized use of the goods resulting in loss of damage render the bailee absolutely liable to the bailor?
    Yes, irrespective of the question of care or negligence.
  29. Where, due to the wrongful act of the bailee, the goods bailed have been lost or damaged, what actions can the bailor maintain against the bailee?
    Damages for breach of contract, a tort action for damages, a conversion action, or a replevin action.
  30. Where the bailment is for a definite time, can a bailor maintain an action in conversion or replevin during the life of the bailment against a person who converts the bailed property from the bailee?
    No, because he has neither the possession nor the right to possession.
  31. When can the bailor maintain the actions of conversion or replevin against a third party?
    If, by reason of a gratuitous bailment or one terminable at will, the bailor may treat the bailment as ended.
  32. Can a bailor sue a third party who injures the bailed property for damages for injury to his reversionary interest?
    Yes, even though he may not maintain trover or replevin for lack of the immediate right to possession.

    It is immaterial whether the bailee was contributorily negligent, as the sole isssue is whether the third party is negligent.
  33. When must the bailee exercise slight diligence?
    When the bailment is solely for the benefit of the bailor.

    Example: X leaves his car at a gas station operated by his friend Y for a free car wash.
  34. When must the bailee exercise ordinary care?
    When the bailment is for the mutual benefit of bailor and bailee, as in bailments for hire.

    Example: X leaves his car with a mechanic for service.
  35. When must the bailee exercise great diligence?
    When the bailment is solely for the benefit of bailee.

    X gratuitously lends his sports car to his friend Y to drive to her class reunion.
  36. When is the bailee absolutely liable?
    When the bailee departs from terms of bailment or fails to redeliver the item (exception: delivery to imposter holding "indispensable instrument")

    Example: X has turned the keys to his sports car over to Y's parking garage; Y's employee drives X's car to her class reunion. (But probably on absolute liability if X loses the claim check and Y's eployee, without notice, turns X's car over to dishonest finder of the claim check)
  37. Is there a modern trend away from the classifications of slight diligence, ordinay care, and great diligence?
    Yes. The trend is toward a rule requiring ordinary care under all circumstances.
  38. What is the burden of proof when goods have been lost, destroyed, or damaged during the bailment?
    On the bailee to prove that the loss was caused without a breach of her duty of care.
  39. What does a bailor need to show in order to establish a prima facie case against the bailee?
    • The bailment was created;
    • He made proper demand for the return of the goods; and
    • The goods were returned in a damaged state or they were not returned at all.
  40. Once a bailor has established his prima facie case, what is the burden on the bailee?
    To establish that any damage or loss resulted without a breach to her duty of care.
  41. When is a bailee rendered aboslutely liable (in conversion)?
    When she departs from the terms of the bailment, as by removing the goods from an agreed place of storage to another without the bailor's knowledge or consent, or by using the goods for a different purpose than the agreed upon one.

    Also, when the bailee expressly agrees, or by custom or previous course of delaing impliedly agrees, to insure the goods against hazards, but fails to do so and the goods are damaged or destroyed by such hazard.
  42. Does the bailee have a duty to redeliver or account for the thing bailed in its original or agreed-upon altered form upon termination of bailment?
    Yes.
  43. Is a bailee absolutely liable for improper delivery of bailed goods to someone other than the bailor or someone claiming under him?
    Yes.
  44. What is a possible exception to the rule of absolute liability for misdelivery?
    When the bailee delivers the chattel to one holding an indispensable instrument (e.g., claim check), so long as the bailee had no notice or knowledge that the one presenting the instrument was not the bailor.
  45. Will a bailee be absolutely liable for delivery to the original bailor if he has notice of, or reason to know of, an adverse claim to the bailed property?
    Yes, if the original bailor is not the true owner.
  46. Can bailor and bailee prescribe the extent of the bailee's laibility by contract?
    Yes. They may impose either a lesser or greater obligaiton than the law ordinarily requires.
  47. Can a professional bailee exempt herself by contract from liability created by her own negligence?
    No.
  48. Can a professional bailee limit her liability?
    Yes, under proper circumstances, but such limitation is not valid unless the bailor knows of and assents to the limitation.
  49. How must liability be limited in a bailment?
    By contract.
  50. Does a claim check evidence a contract between parties to a bailment?
    Most courts say no, as it is not sufficient proof that the bailor actually knewof its terms.
  51. Are liability limitations on posted signs binding on the bailor?
    Not in absence of proof that he read the notice or by its size and location should have read the sign.
  52. Can a garagekeeper housing or servicing four or more vehicles exempt herself from liability where injury results from her own negligence or that of her employees?
    No.
  53. Is a disclaimer of liability by one who simply leases garage space permitted?
    Yes.
  54. Is a disclaimer presumably effective where a loss occurs while a vehicle is in the custody of a garagekeeper but there is no negligence on her part?
    Yes.
  55. Are contracts exempting carries entirely from liability for goods in transit?
    No, they are void as against public policy.

    NOTE: Even baggage checks.
  56. Can a carrier disclaim liability for msidelivery by an explicit provision in the commercial bill or lading that represents the goods for transportation purposes?
    Yes.

    In the absence of a notation of limited liability on the negotiable instrument, a bona fide purchaser can hold the bailee liable for misdelivery.
  57. What is the general rule regarding reimbursement in a bailment?
    Ordinary expenses must be borne by the bailee, and extraordinary expenses by the bailor.
  58. What is the bailee entitled to receive in a bailment for the mutual benefit of the bailor and the bailee?
    The agreed compensation for her services or, in the absence of such agreement, the reasonable value of the services.
  59. What is the bailee entitled to receive in a gratuitous bailment or one for the sole benefit of the bailee?
    No compensation.
  60. How can a bailment be terminated?
    By agreement or by conduct of the partis.
  61. What is a constructive bailment?
    One implied by law regardless of the intent of the parties. Once possession is assumed, the bailment is then implied by law. Constructive bailments arise with respect to lost and mislaid properties.
  62. What are special requirements for the storage of household goods by a warehouse operator?
    The warehouse operator must make written disclosure, to the bailor, before the bailment, of estimated monthly storage charge, other related chrages, an inventory of the goods, and any limitation of damages provisions. The actual charge for storage may not exceed the estimate by more than 10%. In addition to any other right of acton the bailor may have, the bailor has the right to recover up to treble damages for unlawful detention of his househould goods. Attorneys' fees are also revocerable.
  63. Who is a common carrier?
    One who, for compensation, transports goods or persons for anyone who wishes to employ her.
  64. Who is an innkeeper?
    One who provides board and lodging to transients.
  65. What is the liability of a common carrier to passengers?
    Limited to forseeable negligence. The common carrier is an insurer of goods given to her by the shipper and is liable for any loss or damage to the goods excep tby act of God, act of the state, act of the shipper, or inherent nature of the goods (e.g., perishable).
  66. Who has the right to sue the carrier for breach of contract?
    Usually, the consignee, but where there is a violation of the Statute of Frauds, the cosignor may sue for breach of the contract of carriage.
  67. What is required for a plaintiff to detain goods allocated to a carrier?
    An undertaking in a fixed amount prescribed by the court.
  68. What is the statute of limitations for actions against a carrier?
    If suit is not brought within one year after delivery or the date when the goods should have been delivered, the carrier is discharged from liability.
  69. What is the liability of an innkeeper to his guests?
    Limited to negligence and he is held to a standard of reasonable care. He is not an insurer of the safety of a guest. As to the property of his guests, he is an insurer and is liable for loss by burglary, theft, or negligence. An innkeeper can limit his liability by providing a safe for his guests to keep their valuables in.
  70. What is a common law lien?
    The right to possess and retain personal property that has been improved or enhanced in value by the person who claims the lien until the person claiming the property pays in full all charges attaching to the property for the improvement.
  71. What does every lien require?
    • A debt has arisen from services performed on the thing;
    • Title to the thing is in the debtor; and
    • Possession of the thing is in the creditor.
  72. What is a general lien?
    The right to retain all the property of another person as security for a general balance due from the person.
  73. What is a special lien?
    The right to retain specific property of another to secure some particular claim or charge which has attached to the property retained.
  74. If a lienholder has a general lien and releases a portion of the chattels held, does he release part of the lien?
    No, he releases no portion of his lien and may hold the unreleased portion until the entier lien charge is paid.
  75. If a lienholder has a special lien and releases a portion of the chattels held, does he release part of the lien?
    Yes, he thereby waives his lien to the extent of the chattels released.
  76. Who can create a lien?
    The owner or someone authorized by him. A lien is a proprietary interest--a qualified ownership.
  77. Does the common law recognize the lien of the innkeeper?
    Yes. An inkeeper's lien attaches to any property brought into the inn.
  78. Does the common law recognize the lien of the common carrier?
    Yes. A common carrier's lien attaches only to property that it receives from the property owner.
  79. Does the lien of the warehouse operator exist under the New York Constitution?
    It is unclear. Some courts have extended the lien to the warehouse operator to secure him for the time and labor expended upon the chattel and for his storage charges.
  80. Does the New York Constitution prohibit the ex parte sale of property to satisfy the lien of a garagekeeper?
    Yes.
  81. Can a lien be waived by any contract inconsistent with the existence of the lien (e.g., one agrees to deliver the goods before payment for her services is to be made)?
    Yes.
  82. Where a lienor accepts security for payment, does the security eliminate the common law lien?
    Yes.
  83. Is the lien waived where, in her valid lien, the lienor includes amounts in excess of her lawful charges?
    Yes.
  84. Is a lien lost if the lienholder surrenders the goods to the bailor specifically reserving her lien, or if the bailor is permitted to make temporary use of hte property?
    No.
  85. What is personal property?
    Movable property, including every kind that is not real property.
  86. Can real property be converted into personalty?
    Yes, by severance.
  87. Can personal property be converted into realty?
    Yes, by annexation intended to be permanent.
  88. Is any estate in land classified as real property?
    Yes, including leaseholds, fixtures, and mortgages.
  89. Does a conveyance of the land include a conveyance of the crops?
    Yes. Fructus naturales (part of the land) and fructus industriales (considered personalty) are sufficiently related to the land.

    This result is based on the presumed intention of the parties; however, a contrary intent may be shown.
  90. Can the former tenant enter upon the property in order to harvest and remove crops planted by her after termination of the tenancy?
    Yes, under the doctrine of emblements, so long as the tenancy: (i) was for an uncertain duration, and (ii) terminated without the fault of the tenant.
  91. When is a chattel converted from personalty to realty under the concept of fixtures?
    When it is annexed to real property. The former chattel becomes a fixture and passes with ownership of the land.
  92. Explain ownership by occupancy.
    A thing capable of ownership but not then woned belongs to the person who acquires actual or constructive control or dominion over it and has the intent to assert ownership over it.
  93. Are wild animals in their natural state unowned?
    Yes.
  94. When do wild animals become private property?
    Upon being reduced to possession. The first person who exercises dominion and control over the wild animal becomes, with possession, the owner of it. Ownership continues so long as possession is maintained.
  95. When is the concept of constructive possession applicable to wild animals?
    Where one has set traps or nets, or where a hunter has mortally wounded an animal and is in pursuit so that actual possession is inevitable. If a wild animal escapes and resumes its natural liberty, title is lost. Exceptons exist where an animal has a habit of return or where an animal is marked and the owner exercises all possible efforts to pursue and recapture the animal.
  96. Is a landowner regarded as the owner of all wild animals found on her property?
    No.
  97. Does a trespasser who kills game on another's land forfeit his title in favor of the landowner?
    Yes.
  98. Does one who violates a statute forfeit his title to animals caught pursuant thereto?
  99. Does tortious conversion of personal property deprive the true owner of her title?
    No.
  100. Does one who does not have title to goods pass title?
    No, not even to a bona fide purchaser.
  101. What are exceptions where a bona fide purchaser can obtain good title from one without title?
    • Money or a negotiable instrument is transferred;
    • The owner of goods, induced by fraud or misrepresentaiton, sells the goods to the defrauder intending to transfer title to them, and the defrauder subsequently sells the goods to the bona fide purchaser; or
    • The owner of goods has expressly or impliedly represented that the possessor of the goods is the owner or has authority to sell them, and the bona fide purchaser has relied in good faith upon the representation.
  102. Does one attempting to divest another of personal property have the burden of showing title and the right do so?
    Yes.
  103. What is prima facie evidence of title and ownership?
    Possession plus a claim of title.
  104. Does the fact that the owner has either lost or mislaid his property lead to the divestiture of his title?
    No. However, rights of possession must be decided.
  105. When is property lost?
    When the owner has accidentally or involuntarily parted with his possession and does not know where to find it.

    NOTE: New York eliminates the traditional distinction between lost and mislaid property.
  106. When is property mislaid?
    When, judging from the place where found, it can be reasonably determined that it was intentionally placed there and thereafter forgotten.

    NOTE: New York eliminates the traditional distinction between lost and mislaid property.
  107. When is property abandoned?
    When the owner voluntarily relinquishes all ownership of it, without reference to any particular person or purpose. It is necessary to show an intent to give up both title and possession. Ownership of an abandoned chattel is acquired by reducing it to possession. Title to an abandoned chattel is acquired by: (i) actual or constructive control or dominion over the thing; and (ii) an intent to assert ownership over it. Where abandoned property is held by an intermediary with no property interest in the property, the state may assume title to the property through a process called escheat.
  108. How is ownership of an abandoned chattel acquired?
    By reducing it to possession.
  109. How is title to an abandoned chattel acquired?
    • Actual or constructive control or dominion over the thing; and
    • An intent to assert ownership over it.
  110. Under New York statute, is abandoned (waif, treasure trove, and other property) property that is found presumed to be "lost property"?
    Yes, unless the presumption is challenged in an action or proceeding commenced within six months of the finding.
  111. What must a finder of property with value under $20 do?
    Make a reasonable effort to find the owner and restore the property to her. If unable to do so after a reasonable effort, title vests in the finder at the end of one year from the finding.
  112. What must a finder of property with value of $20 or more and instruments do?
    Within 10 days of finding it, either return it to the owner or report the finding and deposit the property with the police.

    NOTE: A person in possession of premises where the property is found has a similar duty.
  113. What is the role of police in lost property?
    The police notify all persons they have reason to believe have an interest in the property as well as the occupant or person in charge of the premises where the property was found. The time period for which the police must hold the property is dependent upon the value of the property.
  114. When does the finder of lost property acquire title?
    When all statutory provisons are complied with, and there are no adverse claims or all filed claims are defeated by the finder.
  115. What happens if several persons participate in a finding?
    They are joint finders with equal rights in the property found.
  116. If a private employee is under a duty to deliver lost property to the employer, who is considered the finder?
    The employer, if she notifies the police.
  117. How does title to personal property by adverse possession result?
    From the running of a statute of limitations, which requres that the cause of action for recovery of the property be brought within a specified period after it accrues.
  118. When the statutory period of adverse possession has run, does the party in possession ahve an enforceable right to possession superior to everyone?
    Yes. Thus, he becomes the true owner.
  119. What is accession?
    The addition of value to property by the expenditure of labor or the addition of new material.
  120. Can a willful trespasser who augments the value of property gain ownership rights in the chattel?
    No. The owner of the chattel may elect to sue the trespasser for damages for conversion, or she may sue for replevin.
  121. When can an innocent trespasser acquire title interests by accession?
    Where the property has been completely changed by the addition to the property or where the augmentation in value is so great that it would be unfair to permit the original owner to reclaim her property.

    Under these two circumstances, the original owner is limited to a cause of action for damages. She may not sue in replevin because the act of accession divested the former owner of title.
  122. What is the law of confusion?
    Confusion is the intermingling of goods (e.g., fungible goods) owned by different persons in such a way that the property can no longer be distinguished.

    If the amount contributed by each of the respective owners is known, the parties are tenants in common of the mass in proportion to their respective interests, regardless of whether the confusion was fraudulent or willful.

    If, however, the amounts are unknown and confusion took place innocently, the owners are tenants in common equally of the mass.

    If the amounts are not known and the confusion results by virtue of the wrongful or negligent act of one of the owners (or his agent, bailee, or trustee), the burden is on the wrongful commingler to identify her portion. If she cannot do so, the entire mass belongs to the innocent owner.
  123. Can one who destroys, misuses, misdelivers, or otherwise wrongfully deprives the owner of chattel or her possessory rights be liable to the owner?
    Yes, via various theories of recovery, including (i) replevin, (ii) trespass, and (iii) trover.
  124. What is replevin?
    An action to recover the chattel itself.
  125. What is trespass?
    An action to recover money damages incurred by reason of the dispossession.
  126. What is trover?
    An action (commonly known today under the title of conversion) in the nature of a forced sale to recover the value of the chattel along wiht damages for dispossession.
  127. If an owner alleges conversion and sues the wrongdoer in trover, what is the effect on title if the action of trover is elected?
    Title passes in favor of defendant. The plaintiff, however, may pursue her election and use remedies such as trespass or replevin, and the right of election is not barred until the judgment is satisfied.

    When satisfiaction of the judgment has occured, title to the converted property passes in favor of defendant, and it relates back to the date of conversion. Thus, if the property is destroyed after conversion but before satisfaction of judgment, the loss falls on the converter.
  128. Who can maintain an action for conversion?
    Anyone who is in actual possession of the chattel in question or who is entitled to immediate possession of the chattel.
  129. Where the converter sells the subject of the tort before the action of trover is brought, is the purchaser liable as a converter?
    Yes, even if he is a bona fide purchaser.
  130. What is an inter vivos gift?
    The donor must intend to make an immediate gift.

    NOTE: Do not confuse a gift and a promise to make a gift. A gratuitous promise to make a gift in the future is not binding under contract law because it lacks consideration, but a gift, once made, is binding and cannot be withdrawn by the donor.
  131. When is delivery valid if the donor is the drawer or maker of a check or note?
    Not until the check or note is cashsed. If the donor is giving someone else's check or note, then delivery is valid when the check or note is given, even without a valid indorsement.
  132. When is a stock certificate validly delivered?
    When given, even without indorsement.
  133. What is the law of gifts through agent (for inter vivos gifts)?
    If the agent is the donor's agent, the gift is not delivered until given to the donee. If the agent is the donee's agent, the gift is delivered when given to the agent. If in doubt and the donee is a minor, presume the agent is the donee's agent; otherwise, the agent is presumed to be the donor's.
  134. In addition to delivery, what is the critical element in a valid inter vivos transfer?
    Acceptance.
  135. Does joint control by the putative donor and donee negate a gift?
    Yes.
  136. Are engagement gifts made in contemplatiopn of marriage and conditioned upon the subsequent ceremonial marriage taking place?
    Yes. If the marriage does not occur, engagement gifts must be returned regardless of who is at fault for breaking off the engagement.

    NOTE: This includes engagement rings.
  137. Can personal property be transferred as a gift causa mortis?
    Yes. Only personal property.
  138. What are the requirements for delivery and acceptance for gifts cause mortis?
    Delivery and acceptance must be sufficient to vest control and dominion in the donee.
  139. Does delivery to an agent complete a gift causa mortis?
    No.
  140. What is the threshold requirement for a gift causa mortis?
    At the time of the gift, the donor must have an immediate and present fear of death. However, the actual cause of death need not be the specific one hte donor feared.
  141. Is a gift causa mortis revocable?
    Yes, and is automatically revoked by the donor's recovery or by the donee's death.
  142. Who has the burden of proving fraud when challenging a gift as induced by fraud?
    The party seeking to relieve himself from an obligation on that ground. Fraud vitiates all contracts and generally is not presumed.
  143. When it is virtually certain that the parties did not deal on equal terms, who bears the burden on the issue of fraud?
    The burden shifts, the transaction is presumed void, and it is incumbent upon the stronger party to show that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary, and well understood.

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