Fall 2018 Burton Property KHB Book Notes

Property Book Notes

Professor Sheldon Kurtz

(KHB) Kurtz, Hovenkamp & Brown, American Property Law (6th Edition)

Chapter 1: Acquisition of Property Rights: A First Look

§ 1.1 Introduction


§ 1.2 What is Property?

(Friedman, The Law of the Living, The Law of the Dead; Property, Succession, and Society, 1966
Wis.L.Rev. 340-349)
 Property
o Property consists of “institutionally defined and regulated rights of persons (or
other social units) in scarce values.
o Legitimate power to initiate decision on the use of economic assets.
 These definitions (and others) emphasize 2 aspects of the meaning of property: first,
what actions can be lawfully taken by the holder of rights (the “owner” of property); and
second, what are the objects (“scarce values” or “economic assets”) with respect to
which such actions can be taken.
 They say that for us property is something of value, an asset. It is something, in other
words, which can be bought, sold, or given away.
 The legal system defines what it is that can legitimately be treated by private persons as
an economic asset—for instance, a house, a horse, or a stock certificate. It also defines
what is not property to be bought and sold, such as the Brooklyn Bridge or a Judgeship.
 The legal system also describes what kinds of decision s can be made with regard to
economic assets, and how these decisions must or may be carried out. It defines
markets, and the formalities of markets.
 Land can be sold, but the instrument of sale must be in writing. Stock in public
corporations is traded through stock exchanges. Liquor may be sold, but in some towns
not on Sunday, or only in bottles and not by the drink, or in authorized liquor stores
only.
 A basic fact of our social and legal system is that assets may be individually owned, and
indeed usually are.
 Property rights, on other words, are generally held by individuals. 2 or more persons
may hold “undivided” interests in a piece of property, but the legal system insists for the
most part on analyzing these interests as divisible though not currently divided.
 True joint ownership is the exception, not the rule.
 Ownership by a social collective—the “family” or the “clan”—is virtually unknown. By
way of exception, some states recognize the institution of community property. Under
this system, income received and property acquired by a husband and wife during
marriage belong to the marital “community.”

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 Collective ownership can be used as a device to ensure automatic succession to

property rights, in contrast to an individual-property system with free transfer of
property during lifetime and at death.
 Though our society does not permit ownership of property by extended families, it does
recognize ownership by aggregates akin to collectives. The government, business
corporations, or churches may own property since they are “legal entities” (treated for
some purposes as if individuals). And since these entities are or can be immortal, they
may dispense with the need to be governed by some rules of succession which bind
individuals.
 The right to sell corporate asses is vested in officers of the corporation, and they in turn
are chosen through definite procedures, partly determined by law, partly by custom.
The presidency of the corporation itself, though an “asset” of tremendous value, is not
“property,” which is simply a way of saying that the mode of succession applicable to
the office is different than the mode of succession for houses, cows, and debentures.
 In our legal system a distinction can be made between valuable assets which are and
those which are not within the system of the law of property.
 It is perfectly clear that the distinction between assets which are within and those which
are without the property system cannot be drawn in terms of inherent characteristics of
the assets themselves. Many offices and positions in our society (the Presidency, for
example) are not property. They are not capable of being bought, sold, given away, or
inherited.
 There are many more principles of succession in our legal system than just these 2
principles—the property principle and the not-property principle.
o The hereditary principles
 In public offices, rules of succession are laid down by positive law (that is, by statute and
judicial rule). Office is not to be bought, sold, or inherited. Life tenure is a rarity, though
federal judges do have it. Private positions, offices, and jobs have their own rules of
succession.
 Mostly, rules of succession to positions in private organizations are provided for by
contract or by custom, rather than by positive law.
 Through law, the power of unions has been solidified or at least ratified, and this means
that for many workers a principle of seniority has replaced a principle of succession in
which full discretion is in the hands of the employer.
 Job tenure is like a property right in that it is legally secured from adverse action. But in
other senses it is not property.
 Our legal system closely associates the concept of property with economic risk.
Maximum freedom to “initiate economic decision” with regard to a valuable right
means the power to make economic gambles on the basis of that right; tenure in a job
usually means a limitation on both risk and opportunity.
 Pension rights, both public and private, are among the most valuable fringe benefits in
many jobs.
 Pension rights, by and large, are not property in the sense of marketable assets. They
are nontransferable. Though many pension plans include death benefits for the worker’s

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survivors, they reject the principle of freedom of testation and limit inheritance to the
immediate family circle of the deceased.
 Ordinary insurance, for example, is an economic asset; it is property in every sense of
the word.
 In fact, social security rights, like some private pension rights, are not “property” even in
the sense that the rights of contributors are safe from the risk of government
encroachment.
 Some assets stand outside the property system because they are permanently vested in
the commonwealth. Not all property is of this type merely because it is publicly owned.
 A park bench illustrates what might be called common property. It is open to everyone,
but obviously only one or two can sit on it at any given moment. Access is by priority in
time. There are no rights in a park bench apart from physical possession; the bench
cannot be reserved. Succession, then, is purely a matter of one physical occupation
following another physical occupation in orderly sequence, and each member of the
public has a potential, limited use-right—limited to the length of time he retains
physical possession.
 There is no essential difference between public facilities which are free and those which
charge admission. When a common facility is not free, the price may be fixed or the
supply rationed. In any event, one cannot but up all available facilities. In the case of the
park bench, the rationing of access is automatic—a consequence of the rule that limits
the user to so much of the bench as he can physically occupy. Indeed, all common
property embodies a system of rationing of access and succession: this is what makes
such property common.
 To prevent the destruction of irreplaceable assets, they have been removed from the
property system (the system of markets and inheritances) and vested in the public. In
place of market rules of succession, there are rules of limited physical use-rights. Title is
in the government as “trustee” for the common good.
Notes and Questions
 Friedman appears to be saying 2 quite different things:
o First, something is property if it is scarce (if there was as much of it as anybody
wanted, nothing would have any value, and property rights would be
unnecessary);
o Second, something is property if the legal system identifies it as such by
permitting it to be exchanged on the market.
 For example, human organs for transplant are scarce and therefore quite expensive, so
they are “property” under the first definition. However, federal law prohibits the sale of
human organs, so they are not “property” under the second definition. Are human
organs property? Perhaps Friedman is saying that both of these things must be true if
something is to be called “property”.

§ 1.3 Acquisition of Property Rights By Capture

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Notes and Questions


 This first theory is known as the doctrine of first possession, as defined by Samuel von
Pufendorf and Hugo Grotius. First possession requires mancupation—or the actual
physical capture of the beast—in order to confer a property right to the hunter. Mere
pursuit of the beast is inadequate. Possession could also be obtained if the beast is
mortally wounded or if the beast escapes, but is subsequently recaptured.
 The second theory is known as the labor theory of property, as defined by John Locke
and Jean Barbeyrac. The labor theory of property grants a property right to the hunter
who invests labor in the pursuit of the beast. Occupancy can be obtained without
mancupation, and pursuit of the beast may be adequate. These alternate theories of
property cut to the core of Pierson—can pursuit yield dominion? Judge Tompkins relied
on the doctrine of first possession to rule for the interloper Pierson. He found that
pursuit was inadequate to yield occupancy, and physical capture was required. Judge
Livingston in dissent relied on the labor theory to rule for the hunter Post. Livingston
found that physical capture was not necessary, and the pursuit vested Post with a
property right in the fox.

 The case involved an action of trespass by Post against Pierson on the grounds that
Pierson had interfered with Post's property in a wild fox. The facts of the case are
relatively simple, Post in possession of certain dogs was hunting on an abandoned
beach, having caught sight of a wild fox, he led pursuit for it and had the fox in his
gunsight. Before Post had any chance of killing the fox, Pierson intercepted his pursuit
and killed the fox and took away the carcass. Pierson's interception took place with the
full knowledge that Post was in hot pursuit ofthe animal. The basis of Post's action was
that his pursuit had given him property in the fox that had now been interfered with by
Pierson.
 The judgments in the case are very interesting and attempt to lay down some general
principles as to when first occupation or possession occurs. Justice Tompkins delivered
the decision of the majority, who held in favour of Pierson. After citing a long list of
authorities both English and American, and consulting the opinion of jurists, the
majority held that actual capture and control of the thing in question could give rise to
first possession. The hot pursuit of Post was insufficient to give him any property in the
fox. Furthermore, it mattered not that Post could have killed the fox had it not have
been for Pierson's
 interception. For the majority, possession meant a clear act whereby the entire world
understands that the pursuer has "an unequivocal intention of appropriating the animal
to his individual use. ,,16 Anything short of such an act would be insufficient to give
property in the animal. There are sound justifications in this position in that, in the
absence of a kill and complete control of the animal, when does the court assign

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possession? The underlying objective of the majority ruling was to avoid constant
disputes and quarrels about when possession takes place.
 Justice Livingstone dissented on the grounds that the question of first possession should
not be decided by a judge but by a panel of hunters. 17 In his view the matter would
have clearly been decided in favour of Post by such hunters, the majority ruling had the
effect of discouraging fox hunting.
 Professor Rose as argued there appear to be two principles emanating from the decision
in Pierson v. Post as to when first occupation takes place. First, notice to the whole
world through a clear act, and secondly, the reward of useful labour. 18 These two
principles require discussion because they seem at first instance to be rather
contradictory. The former principle suggests that fIrst occupation takes place when
there is a clear act to the whole world that control has been taken by the possessor. The
second principle, however, suggests that fIrst occupation takes place by mixing one's
labour, for example, by hunting the thing in question. The second principle on its own
leaves a number of difficulties. First, it leaves a number of question unanswered in the
decision in Pierson v. Post, and secondly, it fails to explain the difference, if any,
between the occupation theory and the rather different labour theory of property which
is discussed later on. If the principle is to reward labour then what about the labour
employed by Post in his pursuit of the fox? On this second principle, Post should have
been entitled to the fox as his property. Despite these initially apparent contradictions,
the two principles work hand-in-hand. The central principle is that of notice to the
whole world through an unequivocal act to appropriate. The question can be put in the
following way; who has exercised a better control?19 Labour is important only in so far
as making that communication effective. Thus the facts of Pierson v. Post can be
explained by stating that, although Post had employed some labour in hunting the fox,
his labour had never reached the important stage of communicating notice to the whole
world. Pierson's labour had the effect of making that important notice to the whole
world.
 The rule emanating from the occupation theory of private property is that objects
become the private property of individuals when such individuals have taken occupation
of them. Occupation is only effective when there has been a clear act of appropriation
and which has been communicated to the whole
world. Pursuit and acts, which fall short of such an unequivocal act of appropriation, are
insufficient because of the problem of assigning possession when there are two or more
overlapping efforts to take occupation. The principle behind the occupation theory is
thus clear enough, however, it may be questioned whether the theory has any
contemporary signifIcance in property law. The primary objection to its continued
reliance in contemporary property law is that it is based on facts, which are both
historical and primitive.2

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Acquisition of Property Rights by Find pg. 47

Favorite v. Miller
 When questions have arisen concerning the rights of the finder as against the person
upon whose land the property was found, the resolution has turned upon the
characterization given the property.
 Typically, if the property was found to be “lost” or “abandoned,” the finder would
prevail, whereas if the property was characterized as “mislaid,” the owner or occupier of
the land would prevail.
 Lost Property – involving an involuntary party (i.e. where there is no intent on the part
of the loser to part with the ownership of the property.
 Abandonment – the voluntary relinquishment of ownership of property without
reference to any particular person or purpose.
 Mislaid Property – that which is intentionally placed by the owner where he can obtain
custody of it, but afterwards forgotten.
 It should be noted that the classification of property as “lost,” “abandoned,” or
“mislaid” requires that a court determine the intent or mental state of the unknown
party who at some time in the past parted with the ownership or control of the
property.
 Cases that have dealt with the same issue as Favorite v. Miller has held that except
where the trespass is trivial or merely technical, the fact that the finder is trespassing is
sufficient to deprive him of his normal preference over the owner of the place where
the property was found.
 The basis for the rule is that a wrongdoer should not be allowed to profit by his
wrongdoing.
 Another line of similar cases holds that property, other than treasure trove* which is
found embedded in the earth is the property of the owner of the locus in quo.
o Treasure trove – any gold or silver in coin, plate, or bullion found concealed in
the earth or in a house or other private place.
o Locus in quo - The place where something is alleged to have occurred.
 The presumption in such cases is that possession of the article found is in the owner of
the land and that the finder acquires no rights to the article found.
 Decision and Reasoning Favorite v. Miller
o In light of the undisputed facts:
 the defendant’s trespass was neither technical nor trivial
 The property found was embedded in the earth
 The defendant was a trespasser
o These facts are sufficient to defeat any claim to the property which the
defendant might otherwise have had as a finder.
o Decision
 Affirm the decision in the court below
 There was no error
 In this opinion the other Judges concurred.

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Acquisition of Property Rights by Gift, Pg. 109

 An owner of property may have the right to possess the property and the right to pledge
the property as a security for a loan
 The owner may have the right to exclude others from the property.
 Two important rights a property owner may have are the right to alienate the property
during her life and the right to dispose of the property by her will.
 The right to alienate includes, among other things, both the right to sell and the right to
give.
 Both sales and gifts represent transfers; the sale is premised on the receipt of
consideration, and the gift is founded upon the intent to make a gratuitous transfer.
Gruen v.Gruen
 Facts: father wanted to retain lifetime possession of valuable Klimt painting and give to
son after death; intentions were written in a series of letters from father to son
 Legal Significance: The elements of an inter vivos gift can be met when a donor intends
to gift something during his lifetime and is accepted symbolically/constructively (in this
case, there was a writing), even if he has retained a life estate in the item, and the gift is
to be physically delivered after his death. The donor must intend to make an immediate
transfer of ownership to the donee.
 Inter vivos gift - A gift of personal property made during the donor's lifetime and
delivered to the donee with the intention of irrevocably surrendering control over the
property. — Also termed gift inter vivos; lifetime gift; absolute gift.
 Decision – the judgment appealed from and the order of the Appellate Division brought
up for review should be affirmed, with costs.
 Issue: Whether a valid inter vivos gift of a chattel may be made where the donor has
reserved a life estate in the chattel and the done never has had physical possession of it
before the donor’s death.
o To make a valid inter vivos gift there must exist
 The intent on the part of the donor to make a present transfer;
 Delivery of the gift, either actual or constructive to the done; and
 Acceptance by the done
o The proponent of a gift has the burden of proving each of these elements by
clear and convincing evidence.
 Requirements of an Inter vivos gift
o (1). Donative Intent
 The intent to surrender dominion and control over the gift that is being
made.
 An inter vivos gift requires that the donor intend to make an irrevocable
present transfer of ownership; if the intention is to make a testamentary
disposition effective only after death, the gift is invalid unless made by
will.
 A valid inter vivos gift of a remainder interest can be made not only of
real property but also of such intangibles as stocks and bonds.
 The gift of chattel must include a present right to possession.

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 Chattel – movable or transferable property; personal property

 Correct test:
 “whether the maker intended the (gift) to have no effect until
after the maker’s death, or whether he intended it to transfer
some present interest…”
 As long as the evidence establishes an intent to make a present and
irrevocable transfer of title or the right of ownership, there is a present
transfer of some interest and the gift is effective immediately
 Once the gift is made it is irrevocable and the donor is limited to the
rights of a lift tenant not an owner.
 With the gift of a remainder title vests immediately in the donee and any
possession is postponed until the donor’s death whereas under a will
neither title nor possession vests immediately.
 The postponement of enjoyment of the gift is produced by the express
terms of the gift not by the nature of the instrument as it is with a will…
o (2). Delivery
 In order to have a valid inter vivos gift, there must be a delivery of the
gift, either by a physical delivery of the subject of the gift or a
constructive or symbolic delivery such as by an instrument of gift,
sufficient to divest the donor of dominion and control over the property…
 What is sufficient to constitute delivery “must be tailored to suit the
circumstances of the case…”
 Rule – “The delivery necessary to consummate a gift must be as perfect
as the nature of the property and the circumstances and surroundings of
the parties will reasonably permit.”
 The major purpose of the delivery requirement is evidentiary.
o (3). Acceptance
 Acceptance by the donee is essential to the validity of an inter vivos gift,
but when a gift is of value to the donee, as it is here, the law will presume
an acceptance on his part.
 Notes Book Section (Pg. 114)
o It is generally stated that in order to make a valid gift there must be intent,
delivery, and acceptance.
o The intent must be an intent to give an interest in property to the donee at the
present time. A promise to make a gift in the future is unenforceable absent
consideration. On the other hand, it is not necessary that the gifted interest be a
presently possessory interest; it may become possessory in the future.
 One of the geniuses of the common law property system was the
recognition that interests in property could be created both concurrently
and successively.
 When interests in property are created successively, one person has a
present interest; another a future interest.
 A future interest can be quite valuable.

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 The futurity of the interest in property merely refers to the fact that the
right to the possession of the property is postponed to the future,
typically when the present interest terminates.
o Property transferred during a donor’s life as a gift is subject to the federal estate
tax (death tax) if the donor retained the right to the possession of the gifted
property for her life.
 This provision causes such gifted property to be taxed in the same way as
if the donor retained the property until death and bequeathed the
property to the donee in her will.
o Professor Mechem state there were 3 reasons why delivery was required to
affect a valid gift.
 First, “delivery makes vivid and concrete to the donor the significance of
the act her is doing…”
 Second, “the act… is as unequivocal to actual witnesses of the transaction
as to the donor himself…”
 Lastly, “the fact of delivery gives the donee at least prima facie evidence
… of the alleged gift.”
o The major purpose of the delivery requirement is evidentiary.
o Where the subject matter of the gift is incapable of a physical delivery, the
delivery requirement may be satisfied by either a “constructive” or “symbolic”
delivery.
 Constructive delivery – occurs when the donor delivers to the donee an
object that permits the donee to gain possession of the subject matter of
the gift.
 Symbolic delivery – occurs when the donor delivers to the donee some
object intended to represent the subject matter of the gift.
o In a number of cases the courts have had to consider the effectiveness of a gift
where the subject matter of the gift (or something else intended to be a “stand
in” for the subject matter of the gift) is delivered to a third person rather than
the donee.
o The third person may be either an agent of the donor or a trustee for the donee.
o The characterization of this third party’s role can affect the validity of the gift in
light of the delivery requirement.
o If the third party to whom the subject matter of the gift is delivered is
characterized as an agent of the donor, the gift is incomplete; if the third party is
characterized as a trustee for the donee, the gift is complete.
 chattel (chat-əl) (14c) Movable or transferable property; personal property; esp., a
physical object capable of manual delivery and not the subject matter of real property.
o “That Money is not to be accounted Goods or Chattels, because it is not of it self
valuable … Chattels are either personal or real. Personal, may be so called in two
respects: One, because they belong immediately to the person of a Man, as a
Bow, Horse, etc. The other, for that being any way injuriously withheld from us,
we have no means to recover them, but Personal Actions. Chattels real, are such
as either appertain not immediately to the person, but to some other thing, by

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way of dependency, as a Box with Charters of Land, Apples upon a Tree, or a

Tree it self growing on the Ground. … [O]r else such as are issuing out of some
immoveable thing to a person, as a Lease or Rent for the term of years.” Thomas
Blount, Nomo-Lexicon: A Law-Dictionary (1670).
Albinger v. Harris, pg. 117
 Supreme Court of Montana (2002)
 Π – Albinger (Boyfriend)
 ∆ - Harris (Girlfriend)
 Brief Fact Summary.
o Albinger (Plaintiff) and Harris (Defendant) were engaged to be married. The
engagement ended and Plaintiff sued Harris for the return of the engagement
ring.
 Synopsis of Rule of Law.
o A gift given without condition is irrevocable. Montana law does not allow actions
in contract law based upon a promise to marry, unless the promise was elicited
through fraud or deceit. A plaintiff cannot recover an engagement ring by
claiming it was a gift conditioned on marriage.
 3 Issues:
o (1). Did the district court err in determining an engagement ring is a conditional
gift that may be revoked upon termination of the engagement?
o (2). Did the district court err in denying Albinger reimbursement for telephone
charges incurred by Harris during cohabitation?
o (3). Did the district court err in awarding Harris compensation for general
damages resulting from an assault and battery by Albinger?
 The district court concluded that the give is entitled to the return of the ring upon
failure of the condition of marriage.
 The District Court determined that this action brought to recover an antenuptial gift is
maintainable, notwithstanding § 27-1-602, MCA, which states:
o § 27-1-602
 Cause of action for breach of promise abolished -- right to damages for
fraud and unjust enrichment preserved.
 All causes of action for breach of contract to marry are hereby abolished.
However, where a plaintiff has suffered actual damage due to fraud or
deceit or a defendant has been unjustly enriched, the plaintiff may
maintain an action for fraud or deceit or unjust enrichment and recover
therein only the actual damage proved or for the benefit wrongfully
obtained or restitution of property wrongfully withheld where such
action otherwise is maintainable under existing law.
 Sup.Ct. agrees with District Court’s conclusion that the rights and duties of the parties
regarding property exchanged “in contemplation of marriage” are still determined by
existing law and common-law principles.

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 The doctrine of unjust enrichment is an equitable means of preventing one party from
benefiting by his or her wrongful acts, and, as such requires a showing of misconduct or
fault to recover.
o Unjust Enrichment
 1. The retention of a benefit conferred by another, without offering
compensation, in circumstances where compensation is reasonably
expected. [Cases: Implied and Constructive Contracts 3. C.J.S. Implied and
Constructive Contracts § 5.]
 2. A benefit obtained from another, not intended as a gift and not legally
justifiable, for which the beneficiary must make restitution or
recompense.
 3. The area of law dealing with unjustifiable benefits of this kind.
 The District Court employed the “conditional gift” theory advanced by Albinger to
determine present ownership of the disputed engagement ring.
o The theory holds that an implied condition of marriage attaches to the gift of a
ring upon initial delivery due to the ring’s symbolic association with the promise
to marry and, when the condition or marriage fails, the incomplete gift may be
revoked by the giver.
 Only in engagement ring cases does precedent from other jurisdictions weigh heavily for
conditional gift theory in the absence of an expressed condition… Considering it “unduly
harsh and unnecessary” to require a hopeful suitor to express any condition upon which
a ring might be premised, many courts stepped in to impute the condition of marriage.
 In practice, courts presume the existence of the implied condition of marriage attaching
to an engagement ring in the absence of an expressed intent to the contrary.
 A party meets the burden of establishing the conditional nature of the gift by proving by
a preponderance of the evidence that the ring was given in contemplation of marriage.
 Abolition of Breach of Promise Actions
o Historic breach of promise jurisprudence tended to view an engagement ring as
either a pledge of personal property given to secure a marital promise or as
consideration for the contract of marriage.
o When a contract to marry was abrogated (repeal or do away with), the jilted
(suddenly reject or abandon) lover could seek redress in a breach of promise
action that sounded in contract law but availed the plaintiff of tort damages.
o “The law allows punitive or vindictive damages to be assessed by the jury; and all
the circumstances attending the breach before, at the time, and after may be
given in evidence in aggravation of damages.”
o Anti-Heart Balm Statutes – You cannot sue someone for backing out of a
marriage.
o Some courts allowed actions for Replevin
 To reclaim property which the other party allegedly no longer has a right
to possess.
 Replevin (ri-plev-in)

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 1. An action for the repossession of personal property wrongfully

taken or detained by the defendant, whereby the plaintiff gives
security for and holds the property until the court decides who
owns it.
o — Also termed claim and delivery. [Cases: Replevin 1.
C.J.S. Replevin §§ 2–7.]
 2. A writ obtained from a court authorizing the retaking of
personal property wrongfully taken or detained.
o Other courts entertained claims for restitution and unjust enrichment
 To reclaim property transferred in reliance upon the promise to marry
when the donor was the “non-breaching party”.
 Conditional Gift Theory, pg. 123
o According to Montana law, “a gift is a transfer of personal property made
voluntarily and without consideration.”
o The essential elements of an inter vivos gift are donative intent, voluntary
delivery and acceptance by the recipient.
o Delivery, which manifests the intent of the giver, must turn over dominion and
control of the property to the recipient.
o Such a gift, made without condition, becomes irrevocable upon acceptance.
o When clear and convincing evidence demonstrates the presence of the essential
elements of donative intent, voluntary delivery and acceptance, the gift is
complete and this court will not void the transfer when the giver experiences a
change of heart.
o Another essential element of a gift is that it is given without consideration.
o A purported “gift” that is part of the inducement for “an agreement to do or not
to do a certain thing,” becomes the consideration essential to contract
formation.
o An exchange of promises creates a contract to marry, albeit an unenforceable
one.
o When an engagement ring is given as consideration for the promise to marry, a
contract is formed and legal action to recover the ring is barred by the abolition
of the breach of promise actions.
o The only revocable gift recognized by Montana law is a gift view of death.
o Also known as a gift causa mortis, such a gift is subject to the following
conditions:
 (1). It must be made in contemplation, fear or peril of death;
 (2). The giver must die of the illness or peril that he or she fears or
contemplates; and
 (3). The delivery must be made with the intent that the gift will only take
effect if the giver actually dies.
o Statutory law provides that a gift in view of death may be revoked by the giver at
any time and is revoked by the giver’s recovery from the illness or escape from
the peril under which the gift was made.

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Fall 2018 Burton Property KHB Book Notes

o Montana law recognizes the transfer of personal property subject to an express

or implied condition which must be satisfied before title vests, as either a
contract, or as a gift in view of death.
o Under Montana law, no gift is revocable after acceptance except a gift in view of
death.
 Gender Bias, pg. 124
o Article II, Section 4 of the Montana Constitution recognizes and guarantees the
individual dignity of each human being without regard to gender.
o In its petition to the Supreme Court, the State Bar of Montana’s Gender Fairness
Steering Committee listed four forms of gender bias:
 (1). Denying rights or burdening people with responsibilities solely on the
basis of gender;
 (2). Subjecting people to stereotypes about the proper behavior of men
and women which ignore their individual situations;
 (3). Treating people differently on the basis of gender in situations in
which gender should be irrelevant; and
 (4). Subjecting men or women as a group to a legal rule, policy, or
practice which produces worse results for one group than the other.
o Montana’s “anti-heart balm” statute bars all actions sounding in contract law
that arise from mutual promise to marry, absent fraud or deveit, and bars all
plaintiffs from recovering any share of expenses incurred in planning a canceled
wedding.
o The statutory “anti-heart balm” bar continues to have a disparate impact on
women.
 Engagement Ring Disposition, pg. 125
o To preserve the integrity of our gift law and to avoid additional gender bias, we
decline to adopt the theory that an engagement ring is a gift subject to an
implied condition of marriage.
o The District Court found the engagement ring was voluntarily offered by Albinger
on Dec. 14, 1995, without consideration and with the present intent to
voluntarily transfer dominion and control to Harris.
o Harris accepted the ring.
o Although the court implied a condition of marriage attaching to the gift as a
matter of law, we do not..
o In our judgment, the gift was complete upon delivery, and a completed gift is not
revocable.
o The fact that possession of the ring passed back and forth between Albinger and
Harris during the course of their relationship bears no relevance to the issue of
ring ownership.
o All of the elements of gifting must be present to transfer ownership, and the
facts do not indicate re-gifting occurred.
o Albinger acknowledged Harris’ ownership himself when he told Harris “to take
the car, the horse, the dog and the ring” when she left the relationship.

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Fall 2018 Burton Property KHB Book Notes

 Holding: We hold that the engagement ring was an unconditional, completed gift upon
acceptance and remains in Harris’ ownership and control.
 Decision/Reasoning: We reverse the District Court’s conclusion of law and hold the
engagement ring to be a gift given without implied or express condition. Montana gift
law makes no provision for conditional gifting, except in the context of a gift in
contemplation of death. We refrain from adopting permutations in the legal theory of
gifting that have no legislated authority and serve to exacerbate gender bias.

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