Clark_11e-AM-Ch47.doc

Clark_11e-AM-Ch47.doc - 371 C HAPTER 47 P ERSONAL P ROPERTY...

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Unformatted text preview: 371 C HAPTER 47 P ERSONAL P ROPERTY AND B AILMENTS A NSWERS TO Q UESTIONS AT THE E NDS OF THE C ASES C ASE 47.1W HAT I F THE F ACTS W ERE D IFFERENT ? (P AGE 964) Suppose that Gladys had told Clara that she was giving the rings to Clara but wished to keep them in her possession for a few more days. Would this have af- fected the courts decision in this case? Explain. Probably not. Whether a gift would exist would depend on whether Clara had acquired the unconditional right to remove the rings whenever she chose. In other words, the court would ask whether Gladys had given up complete control of the rings before it would rule that Clara was entitled to claim them as gifts. In such a situation, however, the fact that the rings remained in Gladyss possession would suggest that there was no effective delivery even though Clara might argue that she was given the power to remove the rings whenever she chose. C ASE 47.2Q UESTIONS (P AGE 968) 1A. Could the claimants have successfully argued that because they briefly possessed the currency, they had an ownership interest in it? Explain. No. [U]nexplained naked possession of cash, as the court described it, is not enough to establish standing to challenge the governments forfeiture claim. [T]he Claimants merely came upon the money as the result of a fortuitous incident. While they might have briefly possessed the currency, mere naked possession does not rise to the level of an ownership interest. The court cited as similar a case in which a cabdriver was held not to have an interest in a suitcase full of cash found by the polices drug-sniffing dogs in the trunk of his taxi. 2A. If the claimants had refuted the governments assertion that the cash was illicit, would the result in this case have been different? Why or why not? Yes. The claimants conceded that they had no evidence to refute the contention that the cash was illicit. The court acknowledged that if they had, this would be a different case. Under the standard analysis [however] the Government established probable cause that the property was used to facilitate a violation of federal criminal law. Once this burden [was] met, the burden shift[ed] to the claimant[s] to establish a defense to the forfeiture, which they could not do. 372 UNIT TEN: PROPERTY C ASE 47.3W HAT I F THE F ACTS W ERE D IFFERENT ? (P AGE 975) If Straub had claimed that he had not read the terms, would the result in this case have been different? Why or why not? No. The court said, Failure of the plaintiff to read the matter plainly placed before it cannot overcome the presumption that the plaintiff assented to the terms of the carrier. The court added that [t]his is basic contract law: one cannot accept a contract and then renege based on one's own failure to read it. T HE E-C OMMERCE D IMENSION Did the fact that Treiber and UPS contracted online affect the outcome in this case? What does that indicate about the use of the Internet to do business? case?...
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Clark_11e-AM-Ch47.doc - 371 C HAPTER 47 P ERSONAL P ROPERTY...

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