![]() ![]() ![]() But what if the ward is compelled by a third party to surrender possession? Is it the guardian’s fiduciary responsibility to recover that property within the statutory limitations period? By customary international law and by statute, beginning with the Trade and Intercourse Acts of 1790 as amended in 1834 and subsequently amended and codified at 25 U.S.C. At common law too a ward lacks the capacity to alienate property without the guardian’s consent.The mere loss of possession, however, is characterized as a factual matter, and thus within the physical capacity ( corpus) of even an incompetent. Thus the rule of Case 40 would not apply to such persons (absent the guardian’s consent), since a transfer of possession requires both the physical and mental elements ( corpus and animus). Children and other incompetents are generally deemed to lack the capacity for either the acquisition of possession (see Case 22) or the transfer of it to another. These three cases distinguish between loss of possession and transfer of possession. Changing the facts of Illustration “3” of the Restatement passage quoted above, if the writing purports to memorialize a decision to make a gift, has the promisor effectively made the gift irrevocably? Is the answer to this question affected by the Restatement rule quoted under Cases 5–7 of these notes to Chapter 1?Ĭases 41–43.REST 2d CONTRACTS (2010) § 102: A written promise is delivered unconditionally when the promisor puts it out of his possession and manifests an intention that it is to take effect at once according to its terms.Ī signs and seals a written promise to B and deposits the document in the drawer of his own desk, saying toī and to a third person as he does so that he intends the promise to be immediately binding. Regarding the requisite elements to transfer possession, the majority rule in the common law seems to be that intent alone is insufficient without some form of delivery ( corpus by another name)-at least in order to signal consent to a written contract. Case 40 holds that while a voluntary transfer of possession can be accomplished simply by adopting (and presumably manifesting) the requisite intent to surrender possession (i.e., transfer animo alone), Cases 52–55 will suggest that forcible dispossession is effective only when there is both a loss of control (the physical element of corpus) and the intent or decision not to contest the loss (the mental element of animus). Case 39 states the general principle that possession can be lost either voluntarily by intentional transfer, or involuntarily by force. Chapter 2: Keeping Possession and Losing PossessionĬases 39–40. ![]()
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