The Personal Property and Bailment

PANHA CHIET UNIVERSITY
THE PERSONAL PROPERTY AND BAILMENT
Contents Part One

i/. Introduction I. PERSONAL PROPERTY..2 SALES OF GOODS. 3 WARRANTIES.6 BAILMENT.......9
I.1
I.2
II.
Part Two
SALE OF GOOD .. ...13 WARRAINTRIES 14
BAILMENTS .15
SAM Sacha
Page 1
Introduction
This book concentrates on the personal property and bailment from common law (Including property law, contract Information, sale of good, real property etc.). It has showed some definition and vocabulary that related to personal property and bailment; how to use and implied contract to sell.
I.
PERSONAL PROPERTY
Generally speaking, Personal Property is mean having to with movable property that is anything as opposed to land and building etc. Personal property is generally considered private property that is movable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any property that can be moved from one location to another. This term is in distinction with immovable property or immovable, such as land and buildings. Movable property on land, that which was not automatically sold with the land, included for example larger livestock (wildlife and smaller livestock like chickens, by contrast, was often sold as part of the land). There are two more that divided from the personal property, It is called Tangible personal property and Intangible personal property. Tangible personal property is the property, either real or personal, capable of being possessed. Tangible property is capable of being perceived by the senses, as distinguished from intangible property or incorporated right in property, such as franchises, copyrights or easements. For taxation purposes, tangible property generally refers to personal property (personalty) that has a value of its own. Though to Intangible personal property is the property that is really a right rather than a physical objects , for example, bank account, stock, copyright, good of will of a business, ownership interests in partnership corporations, and claims against others both in the tort and in contract. These in interests and claims , including checks and promissory notes , are also called chose in action which means a claim or debt upon which recovery may be made in a lawsuits; not a present possession, but merely
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a right to sue, becoming a possessory thing only upon successful completion of a lawsuits or which means evidences of the right to property but not the property itself. Something that was once a movable items but that is now attached to the real property in such a way that its removable would damage the property, and that is thus considered part of the realty; an interest in land etc; It is known as a fixture and becomes part of the real property when personal property is physically attached to the real property. A built-in dish washer or a permanently installed lighting until are example, of fixtures. In contrast, property placed on or added or rented real estate by a tenant to aid the tenant in conducting a trade or business, such as machinery, that is necessary to carry on the trade or the business to real property, it is called a trade fixture, does not become part of the real property, and may be removed by the business tenant of the tenancy.
I.1 SALES OF GOODS Goods are known as the tangible personal property and may be defined as anything that is movable, under the Uniform Commercial Code which is a law in every state that governs different types of commercial transactions. The meaning of Good In general, items of merchandise, supplies, or raw materials. In law of sales, all things (Including specially manufactured goods) which are movable at the time of identification to the contract for sale, other than the money in which the price is to be paid, investment securities and thing in action. Also includes the unborn young of animals and growing crops and other identified thing attached to realty as fixture, and all thing which are treated as movable for purposes of a contract of storage or transportation. In secured transactions, all thing which are movable at the time the security interest attaches or which are fixture, but money, documents, Instruments, account, chattel paper, general Intangible or minerals or the like (Including oil and gas) before extraction. If they are not yet in existence (such as fish not yet caught) , they are known as future goods. Future goods are the goods which form the subject of a contract of
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sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract of sale. If they are types of goods that are usually sold by weight or measure and are stored in bulk quantities, such as grain or oil, they are called fungible goods. Fungible goods are goods that are interchangeable for commercial purposes, and have essentially identical properties. When a producer mixes originating and nonoriginating fungible goods, so that physical identification of originating goods is impossible, the producer may determine origin of those goods based on any of the standard inventory accounting methods (e.g., FIFO, LIFO) specified in the Uniform Regulations. These provisions apply equally to fungible materials that are used in the production of a good. For example, Company Y of Mexico supplies clips to airplane manufacturers throughout North America. Some of the clips Y supplies originate in Mexico and others are made in China. All of the clips are of identical construction and are intermingled at Y's warehouse so that they are indistinguishable. On January 1, Company Y buys 3000 clips of Mexican origin; on January 3 it buys 1000 clips of Chinese origin. If Company Y elects FIFO inventory procedures, the first 3000 clips it uses to fill an order are considered Mexican, regardless of their actual origin. These are defined as goods of which any unit is the same as any like unit. Document of title to goods includes any bill of lading, dock warrant, warehouse-keepers certificate, and warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize either by endorsement or delivery, the possessor of the document to transfer or receive goods thereby represented. A sale is defined by the Uniform Commercial Code as the passing of title from the seller to the buyer for a price. Sometimes a bill of sale is given by the seller to the buyer, which is a signed writing evidencing the transfer of property from one person to another. The bill of sale is a relatively simple legal document that transfers the title of an asset from one individual or entity to a new owner. In general,
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it includes the minimum information necessary to confirm that the transfer of the ownership of an asset has taken place. Also, the document affirms the fact that the transaction was conducted in a manner that was agreeable to all parties involved in the transaction. Essentially, the bill of sale today is a document that is drafted by the seller, and is couched inn verbiage that is intended to document all the pertinent details of the sale. Central to the structure is the names and identifying data related to both the buyer and seller. This will always include the legal name of the buyer and the seller, and may also include the permanent physical addresses of both parties. A brief description of the item that is being sold will also be included. If title is to pass at future time, the transaction is called a contract to sell rather than sell. A contract of sale of goods is a contract whereby the seller: (i) transfers or agrees to transfer the property in goods (ii) to the buyer, (iii) for a money consideration called the price. It shows that the expression "contract of sale" includes both a sale where the seller transfers the ownership of the goods to the buyer, and an agreement to sell where the ownership of goods is to be transferred at a future time or subject to some conditions to be fulfilled later on. The following are thus the essentials of a contract of sale of goods: Bilateral contract: It is a bilateral contract because the property in goods Has to pass from one party to another. A person cannot buy the goods himself. Transfer of property: The object of a contract of sale must be the transfer of property (meaning ownership) in goods from one person to another. Goods: The subject matter must be some goods. Price or money consideration: The goods must be sold for some price, where the goods are exchanged for goods it is barter, not sale. All essential elements of a valid contract must be present in a contract of
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SAM Sacha
sale. A gift, in the law of property, is the voluntary transfer of property from one person (the donor or grantor) to another (the donee or grantee) without full valuable consideration. In order for a gift to be legally effective, the donor must have intended to give the gift to the donee (donative intent), and the gift must actually be delivered to and accepted by the donee. a gift is not a sale, because the person receiving the gift pay no price to the person making the gift(the donor). A bulk sale, sometimes called a bulk transfer, is a sale of goods by a business that represents all or substantially all of its inventory to a single buyer unless such a sale would be common in the ordinary course of its business. In order to protect the purchaser from claims made by creditors of the seller, the seller must usually complete an affidavit outlining its secured and unsecured creditors. The affidavit must usually be filed with a government department, such as a court office. Such procedures are outlined in the bulk sales act of most jurisdictions. If the buyer does not complete the registration process for a bulk sale, creditors of the seller may obtain a declaration that the sale was invalid against the creditors and the creditors may take possession of the goods or obtain judgment for any proceeds the buyer received from a subsequent sale.
I.2 WARRANTIES In business and legal transactions, a warranty is an assurance by one party to the other party that specific facts or conditions are true or will happen; the other party is permitted to rely on that assurance and seek some type of remedy if it is not true or followed. The two sources of risk that warranty covers are: the risk of malfunctioning of the product (covered by the warranty of malfunctioning) and the risk of making a wrong purchase decision regarding the product (covered by the warranty of misinforming). A warranty of malfunctioning is an agreement offered by a seller (or a producer) to a
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consumer to replace or repair a faulty item, or to partially or fully reimburse the consumer in the event of a failure. In recent times the impact of the risk of product malfunctioning and the warranty of malfunctioning have been well understood and analyzed by researchers and practitioners. Lately, due to the growing volume of indirect commerce (e.g., online shopping), an increasing impact of the risk of misinforming on business transactions has been observed. A better understanding of the risk of misinforming and development of appropriate new tools and methods for analyzing the warranty of misinforming are needed. In real estate transactions, a general warranty deed is an agreement that the buyer's title to a parcel of land will be defended. A limited warranty deed, on the other hand, is a promise that the title will be defended against a limited set of claims which is usually claims arising from incumberances executed by the grantor. Thus, a general warranty deed binds the grantor to defend the title against all claims even those arising from previous owners; whereas, a limited warranty deed typically only binds the grantor to defend the title against claims arising from when the grantor held title to the property. A limited warranty deed is the deed of choice for banks when selling foreclosed properties. A warranty may be express or implied, depending on the product. In common law jurisdictions, an implied warranty is a contract law term for certain assurances that are presumed to be made in the sale of products or real property, due to the circumstances of the sale. These assurances are characterized as warranties irrespective of whether the seller has expressly promised them orally or in writing. They include an implied warranty of fitness for a particular purpose, an implied warranty of merchantability for products, implied warranty of workmanlike quality for services, and an implied warranty of habitability for a home. The warranty of merchantability is implied, unless expressly disclaimed by name, or the sale is identified with the phrase "as is" or "with all faults." To be "merchantable", the goods must reasonably conform to an ordinary buyer's
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expectations, i.e., they are what they say they are. For example, a fruit that looks and smells good but has hidden defects would violate the implied warranty of merchantability if its quality does not meet the standards for such fruit "as passes ordinarily in the trade". In Massachusetts consumer protection law, it is illegal to disclaim this warranty on household goods sold to consumers etc. The warranty of fitness for a particular purpose is implied when a buyer relies upon the seller to select the goods to fit a specific request. For example, this warranty is violated when a buyer asks a mechanic to provide snow tires and receives tires that are unsafe to use in snow. This implied warranty can also be expressly disclaimed by name, thereby shifting the risk of unfitness back to the buyer. Another implied warranty is the warranty of title, which implies that the seller of goods has the right to sell them (e.g., they are not stolen, or patent infringements, or already sold to someone else). This theoretically saves a buyer from having to "pay twice" for a product, if it is confiscated by the rightful owner, but only if the seller can be found and makes restitution.But there is an implied condition that the goods are reasonably fit for the purpose for which they are required if: (i) the buyer expressly or Impliedly makes known the intended purpose, so as to show that he relies on the seller's skill and judgment, and (ii) business to supply (whether he be the manufacturer or not). There is no such condition if the goods are bought under a patent or trade name. For example1, In Priest v. Last (1903), a hot water bottle was bought by the plaintiff, a draper, who could not be expected to have special skill knowledge with regard to hot water bottles, from a chemist, who sold such articles. While being used by the plaintiff's wife, the bottle bursted and injured her. Held, the seller was responsible for damages. For example 2, In Grant v. Australian Knitting Mills (1936), 'G' purchased
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the goods are of a description which it is in the course of the seller's
woollen underpants from 'M' a retailer whose business was to sell gCJods of that description. After wearing the underpants, G developed some skin diseases. Held, the goods were not fit for their only use and 'G' was entitled to avoid the contract and claim damages.
I.
BAILMENT Bailment describes a legal relationship in common law where physical
possession of personal property, or a chattel, is transferred from one person (the 'bailor') to another person (the 'bailee') who subsequently has possession of the property. It arises when a person gives property to someone else for safekeeping, and is a cause of action independent of contract or tort. Bailment is distinguished from a contract of sale or a gift of property, as it only involves the transfer of possession and not its ownership. To create a bailment, the bailee must both intend to possess, and actually physically possess, the bailable chattel. Bailment is a typical common law concept although similar concepts exists in civil law. There are three types of bailments: 1/.for the benefit of the bailor and bailee 2/.for the sole benefit of the bailor; and 3/.for the sole benefit of the bailee. Examples A bailment for the mutual benefit of the parties is created when there is an exchange of performances between the parties (e.g. a bailment for the repair of an item). A bailor receives the sole benefit from a bailment when a bailee acts gratuitously (e.g. a restaurant, a bailee, provides an attended coatroom free of charge to its customer, the bailor). A bailment is created for the sole benefit of the bailee when a bailor acts gratuitously (e.g., the loan of a book to a patron, the bailee, from a library, the bailor).
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Bailment can arise in a number of situations, and is often described by the type of relationship that gave rise to the bailment. Several common distinctions are: Voluntary vs. Involuntary. In a voluntary bailment, the bailee agrees to accept responsibility for possession of the goods. In an involuntary bailment, the bailee has possession of the goods without intent to do so. A common situation that creates voluntary bailment is when a person leaves goods with someone for service (e.g., dry cleaning, pet grooming, car tune-up). The bailee must hold the goods safe for the bailor to reclaim within a reasonable time. An involuntary (or constructive) bailment occurs when a person comes into possession of property accidentally or mistakenly, as where a lost purse or car keys are found and need to be protected until properly redelivered a bailment is implied by law. For consideration vs. gratuitous. NO: If a person agrees to accept a fee or other good consideration for holding possession of goods, they are generally held to a higher standard of care than a person who is doing so without being paid (or receives no benefit). Consider a paid coat-check counter versus a free coat-hook by the front door, and the respective obligations of the bailee. Some establishments even post signs to the effect that "no bailment" is created by leaving your personal possessions in their care, but local laws may prevent unfair enforcement of such terms (especially attended car parks). Fixed term vs. indefinite term. A bailor who leaves property for a fixed term may be deemed to have abandoned the property if it is not removed at the end of the term, or it may convert to an involuntary bailment for a reasonable time (e.g., abandoned property in a bank safe, eventually escheats to the state, and the treasurer may hold it for some period, awaiting the owner). However, if there is no clear term of bailment agreed upon, the goods cannot be considered abandoned unless the bailee is given notice that the bailor wishes to give up possession of the goods. Frequently, in the case of storage of goods, the bailee also acquires a contractual or statutory right to dispose of the goods to satisfy overdue rent; a lawful conversion of bailed goods.
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A mutuum was a loan for consumption. It was the oldest contract in re, growing in importance after 326 BC when the lex Poetalia was passed. It could be used by people without the right of commercium a package of rights to participate in the ius civile and to undertake remedies. It involved the delivery of certain types of fungible goods, such as money, food, and drink. Ownership was transferred, as was possession. In a strict sense then, because ownership passed, it should not be considered a loan. The mutuum obliged the borrower not to return the thing itself, because its use would involve consumption, but a similar thing in quantity, quality and size.
The lender had a condictio action for the value of the thing if a similar
thing was not returned as described. It was stricti iuris ("strict law") the lender could not claim interest] Despite this, it became the standard arrangement for moneylenders in the Roman republic. Interest would instead have to be given in a stipulatio, an additional contract. Rates of interest were heavily regulated by the state. As a mutuum did not place on the borrower any specific date on which to return the equivalent thing, this would also be given in a stipulatio if required. In the later law, the stipulatio replaced mutuum completely. The borrower was bound to return the equivalent thing. As owner, he bore liability for loss, theft, or damage; they were irrelevant to his liability for the thing. Two exceptions were made, where repayment would be dependent on the success of the operation: the financing of a cargo ship, and the sponsorship of a professional athlete. Neither was liable if they did not succeed; the risk was born by the lender. Mutuum was unilateral and did not place the lender under any obligations or duties. It is called a mutual benefit bailment when both the bailor and the bailee benefit from the transactions. For example, when someone leaves a watch with a jeweler to be repaired, the watch owner receives the benefit of having the watch repaired, and the jeweler receives the benefit of being paid for the service rendered. In this type of bailments, the bailee owner a duty to use ordinary care toward the
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property and would be responsible for ordinary negligence if the goods are lost or damaged. one that occurs when care and custody of the bailors property is accepted by the bailee without charge and without any consideration or expectation of benefit or one in which no consideration is given by one of the parties in exchange for the benefit bestowned by the other. It may be either for the sole benefit of the bailor or the bailee. For example, if someone stores his or her car in a garage for safekeeping while away on a trip, it would be a bailment for the sole benefit of the bailor. In this type of bailment, the bailee owes a duty to use only slight care over the property and would be responsible only for gross negligence, because he or she is receiving no benefit. When someone loans a car or other item to friend, conversely, it is a bailment for the sole benefit of the bailee. Here, the bailee owes a duty to use great care with the property and would be responsible for slight negligence in the event of loss or damage to the bailed property. A tortious bailee is one who has wrongful possession of anothers goods. For example, a person who takes anothers goods without authority, or keep anothers goods after they should be returned, or used anothers goods for a purpose other than agreed on is a tortious bailee.
THE END of Part One
( Part Two)
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sale of goods
( )
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() (
Warranties
l
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Bialments

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The End Of Part Two
THE END
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(Reference) www.qustlii.edu.au www.en.wikipedia.ogr BOOK: English- Khmer Law Dictionary (First Edition 1997) BOOK : LEGAL TEMINOLOGY by Gordon W.Brown
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The Personal Property and Bailment

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PANHA CHIET UNIVERSITY