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A. Means of Acquisition: copore et animo: Cases 1–11

Chapter 1: Acquiring Possession: Cases

Case 1 and Case 2 (second fact situation)
Case 2 (first fact situation) and Cases 3–7
Cases 8 and 9
Cases 10 and 11


Case 1 and Case 2 (second fact situation). These cases concern the transfer of derivative possession of land.  In general, the specific issues they consider would not arise under modern statutes that require the recording of deeds of conveyance (even if mortgagees will generally not accept a deed as security unless the parcel has been surveyed anew with each conveyance).  In the ancient common law, transfer of the ownership interest in a freehold was accomplished by means of “livery of seisin,” originally symbolized by the physical transfer from hand to hand of a clod of earth from the land in question.  Still in the modern American doctrine of adverse possession, a common source of litigation is the physical extent of an adverse possessory interest.  See, e.g., van Valkenburgh v. Lutz, 106 N.E. 2d 28 (1952).

Discussion Question:
  1. In Roman law, valid possession requires a “just cause” (iusta causa) as the basis for possession (more precisely, as the basis for the delivery that creates the possession).  Prescription is not possible without valid possession.  At common law, jurisdictions split on whether good faith is required to ground an adverse possessory claim.  In some jurisdictions it is not required.  In others, a good faith “claim of right” must be proven, and in still others the even more stringent standard of a claim “under color of title” is necessary.  To which of these three would the Roman “just cause” standard be most similar? 

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Cases 2 (first fact situation) and Cases 3–7.  These cases concern the transfer of possession of movables and turn on whether the nature of the transfer is sufficient to satisfy the physical requirement of corpus (corpore).  The principles are relevant to any legal transaction where “delivery” of tangible property from one party to another is involved.  Apart from the relevant common law rules, in the United States the delivery of “goods” in commercial transactions is now mostly regulated by provisions of the Uniform Commercial Code (UCC), as enacted in the statutes of every state, the District of Columbia, and the Virgin Islands.4  The UCC defines “delivery” as: “ . . . with respect to goods, the voluntary transfer of physical possession or control of goods.” Although the UCC distinguishes the “tender” of delivery from the “acceptance” of delivery, a seller who tenders is normally entitled to the buyer’s acceptance.  Since possession (and the consequent risk of loss) can only be in the buyer or the seller, the factual issues of when and whether delivery has been effected are therefore just as relevant under the UCC as in Roman law.

Discussion Questions:

Do the following provisions of the UCC and Restatement Second of Property yield the same results as the Roman rules in the indicated cases?  Are there additional factual or legal issues that would need clarification in order to answer these questions?

  1. Regarding Case 2 compare UCC § 2-509 (2003)(1)(b).
    [I]f [the contract] require[s] the seller to deliver [the goods] at a particular destination and the goods are there tendered while in the possession of the carrier, the risk of loss passes to the buyer when the goods are there so tendered as to enable the buyer to take delivery.

  2. Regarding Case 4 compare UCC § 2-509 (2003)(2)(b).
    If the goods are held by a bailee to be delivered without being moved, the risk of loss passes to the buyer. . . on acknowledgment by the bailee to the buyer of the buyer’s right to possession of the goods;

  3. Regarding Cases 5–6 compare the Comment regarding delivery of a gift, as summarized in REST 2d PROPERTY-Donative Transfers (2010) § 31.1.
    The delivery to the donee may be constructive or symbolical. Constructive delivery takes place when the donor has not made delivery of the subject matter of the gift to the intended donee but has given the donee something that gives the donee access to the place where the subject matter of the gift is located, for example, the key to that place. The delivery is symbolical if the donor has had the intended donee's name in some way indelibly associated with the subject matter of the gift. This would be the case if the donee’s name is inscribed on a ring. Constructive or symbolical delivery is a delivery of the subject matter of the gift as effective as any other delivery.

  4. Regarding Case 7 compare UCC § 2-509 (2003)(3).
    In any case not within subsection (1) or (2), the risk of loss passes to the buyer on the buyer's receipt of the goods.

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Cases 8–9. The common law “rule of capture” is illustrated by the two English cases included in the Casebook. Also see Charles Donahue, Jr. “Animalia ferae naturae: Bologna, Leyden, Oxford, and Queen’s County, NY,” in Studies in Memory of A. Arthur Schiller, Roger A. Bagnall, A. Arthur Schiller, and William Vernon Harris eds., Leiden, Brill, 1986, 39-63.

Discussion Question:
  1. Does the common law rule of capture extend to wild animals on the land of another?   See Keeble v. Hickeringill, Queen's Bench 1701, 11 East 574, 103 Eng. Rep. 1127.

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Cases 10–11.  These cases concern acts that under the UCC would raise an issue of whether the goods have been “accepted” in a manner that completes their delivery.  See UCC § 2-606 (2003)(1). “Acceptance of goods occurs when the buyer: . . . (c) Subject to Section 2-608(4), does any act inconsistent with the seller’s ownership.”

Discussion Question:
  1. 1) Would the facts outlined in Cases 10–11 constitute “acceptance” under UCC § 2-606?

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4 It should be noted that the UCC and other Uniform Laws, as well as the Federal and the State Codes of Civil Procedure, themselves reflect the influence of the “codification movement,” which is a hallmark of the civilian tradition.


Chapter 1: Introduction | A. Cases 1–11
B. Cases 12–21 | C. Cases 22–38


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