英美法律制度期末复习

1.（有效赠与满足的三个条件）three requirements for an effective gifts:(1) delivery :Delivery is obvious in most cases, but some objects cannot be relinquished physically(2) donative intent:Donative intent (the intent to make a gift) is determined from the language of the donor and the surrounding circumstan ces.(3)acceptance by the donee: The final requirement of a valid gift is acceptance by the donee.

2. (反向取得的四个条件) adverse possession:(1) Possession must be actual and exclusive, than is ,the possessor must take sole physical occupancy of the property.(2) The possession must be open ,visible and notorious, not secret and clandestine.The possessor must occupy the land for all the world to see.(3) Possession must be continuous and peaceable for the required period of time.(4) Possession must be hostile and adverse

3.Battery（非法接触）and Assault（威吓）的异同：(1) Similarity: Both have intention to make contact (2) Difference: contact : 1.The first of intentionally inflicted injury is battery.Battery is the intentional, unconsented, harmful or offensive touching of another.2. Assault o ccurs when the defendants’s acts intentionally cause the victim’s reasonable apprehension of immediate harmful or offensive contact. The contact must be seen as imminent. Intention:In case of the assault there is no physical harm to victim , it is just threat from criminal to victim. While in case of battery ,there must be some physical contact between criminal and victim.

4.Conversion(侵占)的概念和特征：概念：Conversion is a

special type of trespass.It is

an intentional interference with

plaintiff’s possession or owners

hip of property that is so

substantial that D should be required to pay the property’s full value. It involves a major interference, more serious interference with the possesssor’s rights.

特征：(1) Conversion is an

Intentional tort(2) Distinguishe

d from trespass to chattels

5.地役权

(1) An easement is the

right of s person to

make limited use of

another persons’ real

property without taking

anything from the

property.

(2) An easement, for example

, can be the right to walk

Across another’s property. In

contrast, profit is the right

to go on to land in possession

of another and take away

some part of the land

itself or some product

of the land

6.(过失侵权的成立要素)

elements of negligence:

(1) the duty of care and

Its breach (2) the injury(3)

causation

三．案例

1.火车爆炸案(可预见性

foreseeability)

Issues:1.How is the duty of

due care that is owed

determined?

2.To whom does a party

owe the duty of due care?

Holding and Rule

(Cardozo –“Zone of

Danger” rule)

1.A duty that is owed must

be determined from the risk

that can reasonably be

foreseen under the

circumstances.

2.A defendant owes a duty

of care only to those who

are in the reasonably

foreseeable zone of danger.

a."there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff's safety, so far as appearances could warn him."

b.Without any perception that one's actions could harm someone, there could be no duty towards that person, and therefore no negligence for which to impose liability. 一个正常的小心谨慎的人所感知的危险的范围决定应承担责任的范围(the orbit Of the danger aS diSClosed tO the eye Of reasonablevigilance would be the orbit of the duty) 2 土地测量误差

Issues:1.Is tacking of possessi

on by subsequent occupants

permitted if the land is occup

ied under a mistake of fact?

2.May a party prevail on a

claim of adverse possession

if physical use of the

property was limited to

summer occupancy?

Holding and Rule

1.Yes. Tacking of possession

by subsequent occupants is

permitted if the land is occupied under a mistake of fact provided the occupants are in privity.

2.Yes. A party may prevail on

a claim of adverse possession

if physical use of the property

was limited to summer occupa

ncy.

Issue: 1. Is a claim of adverse possession defeated because the house was only used as a summer property？

2. Can a person who has recorded title to a tract of land adjacent to his, but

thinking that he has correct title to the land which he possesses, tack his adverse possession onto the previous periods of occu

pancy which went before his？

Holding: 1.No. To establish continuity of possession, a person must only occupy the property for periods of time which are consistent with the nature of the property.

2. Yes. Where there are several successive bona fide purchases and recordings of a

deed to a tract of land adjacent to the tract of land occupied,and the cumulative possessions are longer than the statute of limitations for actions to recover property, there is sufficient privity to permit tacking and thus establish adverse possession.

Reasoning: 1. The court reasoned that the rule of continuity was not one requiring absolute mathe matical continuity, but rather if the land is occupied during the period of the year when it is capable of use, that is sufficient.

2. The requirement of "privity" is intended to keep chains of unrelated squatters from voiding the title of the original owner, and clearly those are not the facts in this case. Each possessor was a bona fide purchaser from the previous one. Furthermore, where a person claims more than his deed describes, the question of privity is not defeated, so it should be the same for where the deed describes an adjacent parcel of land.

Issues

1.Is tacking of possession by subsequent occupants permitted if the land is occupied

under a mistake of fact?

2.May a party prevail on a claim of adverse possession if physical use of the property

was limited to summer occupancy?

1.Under WA property law, may a person who receives record title to tract A under the

mistaken belief that he has title to tract B (immediately adjacent to tract A) and who subsequently occupies tract B, for the purpose of establishing title to tract B by adverse possession, use the periods of possession of tract B by his immediate predecessors who also had record title to tract A?

Holding and Rule

1.Yes. Tacking of possession by subsequent occupants is permitted if the land is occupied under a mistake of fact provided the occupants are in privity.

2.Yes. A party may prevail on a claim of adverse possession if physical use of the property was limited to summer occupancy.

3.Yes. When several successive purchasers received record title to tract A, under the mistaken belief that they were acquiring tract B, immediately adjacent, and where possession of tract B is transferred and occupied in a continuous manner for more than 10 years by successive occupants, there is sufficient privity of estate to permit tacking and thus establish adverse possession as a matter of law.