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B. Special Cases: Acquisition Animo: Cases 12–21

Chapter 1: Acquiring Possession: Cases

Cases 12–16
Case 17
Cases 18–19
Cases 20–21


Cases 12–16. These cases address a problem created by the requirement that taking possession entails both a physical and a mental action.  What if the property to be transferred is already held by the would-be possessor?  An analogous problem at common law would occur when an owner decides to transfer ownership to a bailee. 

Discussion Questions:
  1. Under the UCC § 2–503(4)(a) (quoted below), is some further act required to effect “delivery” when the property is already in the control of a bailee?

    UCC § 2–503 (2003). Manner of Seller’s Tender of Delivery.

    . . .

    (4) Where goods are in the possession of a bailee and are to be delivered without being moved

    1. tender requires that the seller either tender a negotiable document of title covering such goods or procure acknowledgment by the bailee of the buyer’s right to possession of the goods; . . .

  2. Who owns the property at common law if the existing owner decides merely to abandon the property while it is held by a bailee?  Has it become “ownerless property?”

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Case 17.  As Hausmaninger notes (p. 29), the concept of “short-hand delivery” (traditio brevi manu) is essentially unnecessary, since the physical element of transferring possession has already been satisfied prior to the transferor’s adoption of the requisite intent.  Can the same properly be said, however, when the property is still held by the transferor who makes a “possessory decision/agreement” (constitutum possessorium) in favor of the transferee?  How might one prove that such an agreement or decision had been made? 

Discussion Question:
  1. The retention of possession by a merchant seller with the acquiescence of the buyer is called “entrusting” in the UCC.  What is the result if the bailee/merchant seller alienates the buyer’s property to a third party?  See UCC § 2–403 (2003):

    . . .

    (2) Any entrusting of goods to a merchant that deals in goods of that kind gives the merchant power to transfer all of the entruster’s rights to the goods and to transfer the goods free of any interest of the entruster to a buyer in ordinary course of business.

    (3) “Entrusting” includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor's disposition of the goods was punishable under the criminal law.

  2. The UCC rules regarding “entrusting” apply to merchant sellers.  What would be the result under common law in situations where the bailee is not a “merchant?”  What more would one need to know in order to answer this question?

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Cases 18–19.  Execution of a lease terminates the possession of the lessee/owner.

Discussion Question:
  1. Would the same result ensue at common law if a party who has commenced to possess adversely subsequently agrees, even for a brief period, to pay rent for the property she occupies?  See Ayers v. Day & Night Fuel Co. 451 P.1d 579 ($200 payment made by adverse claimant to former owner in 1963 was deemed to be for rent and therefore a recognition of former owner’s title to property and interrupted continuity of adverse possession period which had begun in 1955).

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Cases 20–21.  The qualification in Case 20 that the man is “not her husband” is necessitated by the fact that gifts between Roman spouses were not enforceable. The fact-situation of Case 21 is obviously remote from modern legal realities.

Discussion Question:
  1. What would be the result in a community property jurisdiction where a spouse, living separately, dies in adverse possession of property.  Does the limitations period begin to run anew when the surviving spouse takes possession of the property?  How about if the surviving spouse had been paying rent to the deceased spouse?

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


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