美国财产法
美国财产法(1)
第一章 序言
1.1 Introductionn
牛津大学比较法教授Lawson（劳森）曾说:财产法（Property law）不仅是我们法律中最好的一部分,而且它的主要原则和结构也优越于其它国家关于这个领域的法律。所以学习
美国法律,Property law是一门必修的的课程,另外,它也是美国各州律师资格考试的必考科目之一。在开始这门课之前,还是先让我们来看看Blackacre这个词。
1.2 Blackacre
Blackacre
这个词在一些美国财产法的著作里经常看到,但在常用的英汉法律词典里却找不到它的译义,有学者将它直译"黑土地",其实Blackacre是一个虚构的（hypothetical）概念,代表财产权的一种标的物:某一块土地或某一栋房屋。法学教授们在课堂上讨论与不动产有关的问题,需要假设一个案例时就会经常用到它,比如:A occupies Blackacre under a lease from B.另外,教授们如果虚构某一土地为Blackacre,还想虚构另一块土地,那另一块土地就称之为Whiteacre.
Black's law dictionary 对Blackacre解释如下:A fictitious tract of land used in legal discourse to discuss real-property issues. When another tract of land is needed in a hypothetical, it is often termed "whiteacre." Note: 美国财产法大量地使用一些像Blackacre之类的专业术语,要理解美国财产法,就必须掌握这些财产法的专业词汇,美国学生也得如此,我们编写这本小册子就是想提供一些重要的词汇,读者通过这些词汇和对其上下文的理解,可以对美国财产法有一个全面的了解。是为序。
第二章 财产和财产权
2.1 What is Property
Property一般译为"财产",通常的理解是指某一具体的物,又可以分为不动产（Real property）和动产（Personal property）,这种划分来源于普通法早期的诉讼程序, 在此诉讼程序中,有两种诉讼,一为"真实的诉讼"（Real action）,处理土地为他人不当占有的案子,这时土地可以返回给合法的所有人,另一种为"个人的诉讼"（Personal action）,处理土地以外的的财产纠纷,这时所有人只能获得金钱赔偿,不得要求返还原物。
关于动产,英文有"Chattels"和"Personal property"两种不同的表述,现在,人们一改早期普遍使用的"Chattels",而广泛地采用"Personal property".动产又可以分为两类:有形动产（Tangible personal property）和无形动产（Intangible personal property Types of property）,前者指能够看到、摸得到的有体财产,而后者则指看不到、摸不到的无体财产,如股份,银行账号,人寿保险等。
Note:According to Black's Law Dictionary, property is defined as:"That which is peculiar or proper to any person； that which belongs exclusively to one. An aggregate of rights which are guaranteed and protected by the government. Property extend to every species of valuable right and interest……the right to posses it, use it, and to exclude every one else from interfering with it." 问题:下面哪些不是财产？a） Military Retirement b） Earning Capacity c） Accrued Goodwill of Medical Practice d） Law Degree 答案:都不是
2.2 Philosophies
财产和财产权是什么？不同的法学家和法学派（Philosophies）有不同的观点,以下就是几个有代表性的观点:Posner（波斯纳）:（1）财产权是天赋的（Property rights are "natural"）；（2）没有财产权,财产就不能被有效地利用（Without property rights, there is no incentive to use property efficiently.）；（3）普遍性（Universality）、排他性（Exclusivity）和可转让性（Transferability）是财产权的三大要素（Three Elements）。Bentham （边沁）:Property是一种"能够从物当中获得一种利益的期待"（basis for expectation）。Cohen（科恩）:财产权必须要考虑到下列因素:政府、契约、管制、价值（Property merges by imperceptible degrees into government, contract, force & value）。Locke（洛克）:劳动创造财产（Labor creates property）。Note:关于边沁和波斯纳之观点比较,请参见下列注释:Comparing Bentham to Posner（1） Anomalies under Bentham: Under the Posner theory, property is something that has value, not just what is legally defined as property as under Bentham, but from what people hold as having value. There are several cases of items treated as property without law, such as illegal drugs, territories for marketing such, boyfriends and girlfriends. Here no property right exists but people treat it as such either by enforcement of societal values or by fear of retaliation.
（2） Anomalies under Posner: Transferability frequently measures more how much a person wants something, we being non-rational operators, than how efficiently we will do so. Transferability of some items actually induces inefficiencies, such as those which are merit based. If you could transfer law school admissions, you would be measuring who wanted it the most, or who could pay the most for it, and not who could best utilize it.
2.3 Attributes of Ownership
大陆法系的法律以所有权（Ownership）为基础来分析财产和财产权,宣称"一物一权",
美国财产法不像大陆法系那样强调财产的所有权,它重视的是财产权中各种不同的利益和所
有权的分割情况（Attributes
of Ownership）,这些利益常常是指:
e） 占有权——Possession （right to have, hold, & keep）
f） 排他权——Exclusion （right to exclude others）
g） 处置权——Disposition （right to alienate）
h） 使用权——Use （right to employ the property as desired）
i） 受益权——Benefit （right to profits realized through property's
use）
j） 破坏权——Destruction （right to destroy property）
2.4 Origins of Property
一个人如何获得一件物品的财产权呢？财产权的最原始取得（Origins of Property）
是如何实现的呢？按照洛克的观点（Lockean
view）:财产是通过劳动和努力来取得的（Property is acquired through
investment
of labor and effort）,关于财产的取得（Acquisition）,这里还有一条重要的原则:
First
in time, first in right（时间在先,则权利在先）。例如在美国:Indians have
right
to land, they were here first
Note:如果想在美国买房子或土地,就要查询其所有权的链锁（Chain of title）,这个
链锁可以追溯到该财产的原始取得之时,如果这个链锁的记录有问题,那你购买该财产就不
安全,别的人可能对所有权提出争议,这个情况我们以后会详细讨论。
2.5 经典案例（中英文对照）
Case:Armory v. Delamirie
The plaintiff being a chimney sweeper's boy found a jewel and
carried it to the defendant's shop （who was a goldsmith） to
know what it was, and delivered it into the hands of the apprentice,
who under pretence of weighing it, took out the stones, and
calling to the master to let him know it came to three halfpence,
the master offered the boy the money, who refused to take it,
and insisted to have the thing again； whereupon the apprentice
delivered him back the socket without the stones. And now in
trover against the master these points were ruled:
1. That the finder of a jewel, though he does not by such finding
acquire an absolute property or ownership, yet he has such a
property as will enable him to keep it against all but the rightful
owner, and subsequently may maintain trover.
2. That the action well lay against the master, who gives a
credit to his apprentice, add is answerable for his neglect
3. As to the value of the jewel several of the trade were examined
to prove what a jewel of the finest water that would fit the
socket would be worth； and the Chief Justice directed the jury,
that unless the defendant did produce the jewel, and shew it
not to be of the finest water, they should presume the strongest
case against him, and make the value of the best jewels the
measure of their damages: which they accordingly did.
案例来源:（1722） 1 Strange 5O5； 93 E.R.
664 （Court of King's Bench）
案例:阿莫里捡宝石案
该案发生在1722年的英国。原告是一个烟筒清洁工。一天,原告捡到一枚宝石,然后交
给被告金行鉴定。原告将宝石交给金行的徒弟手里。该徒弟在假装称重时将宝石取下,然后
告诉师傅,原告捡到的东西价值3个半便士。师傅就付钱给原告。原告不接受钱,坚持要求被
告返还原物。徒弟在要求之下只将嵌宝石的托子还给原告,没有将宝石还给原告。现在原告
以失主的身份起诉,要求被告赔偿。法院的判决如下:
（1）尽管失物的发现者不因拾到宝石而获得一种绝对的所有权（ownership）,但是他
有这样一种财产权,即可以保留失物,除了原失主以外任何人都不得妨碍。因此,原告可以具
有失主的身份。
（2）这个诉讼的被告是金行的师傅是正确的。金行的师傅信任他的徒弟,因而对自己
的疏忽大意负有责任。
（3）至于宝石的价值,根据考查交易行情,只有最好水准的宝石才配有该托子。法官指
示陪审团,除非被告拿出原宝石并证明它不是最好水准的,陪审团就应当要求被告按照最好
水准的宝石来计算宝石赔偿价值。
Note: 这个案子已经有270多年的历史了,但是至今美国法院仍视其为美国普通法的原
则之一。法学院的教科书中仍可以读到这个案子。
这个案子的关键部分是判决的第一部分,即失物的发现者可以享有占有该失物的财产权
。这个财产权属于一种先占（prior possession）。先占只要不是非法的,就可以导致所有
权。在这个案子里,如果原告一直没有出现并诉求归还宝石,那么阿莫里就有可能获得一种
完全的所有权。
2.6 本章节英文读物:
"First-in-time" rule
1. The general rule of possession is that the
first person to take a
possession of a thing owns it. A corollary to this rule is that
a prior possessor prevails over a subsequent possessor. Thus,
a finder has rights superior to everyone but the true owner.
Armory v. Delamarie. However, there are important exceptions
to this rule.
EX: In Armory, A finds a jewel and takes it to
a jeweler to have
it appraised. The jeweler refuses to give the jewel back to
A,
saying that A does not own it. A is entitled to recover from
the jeweler either the jewel or the full money value of the
jewel.
As between A and the jeweler, the prior possessor has superior
right.
2. The "prior possessor wins" rule also applies to
objects acquired
through theft or trespass.
EX: If A steals a jewel and hands it to B, who
refuses to return it, B is liable to A. B cannot question A's
title or rightful prior possession if B is merely the subsequent
possessor.
The rationale for this is that to rule in favor of B would most
likely not deter crime, but it would likely immerse owners and
prior possessors in costly litigation with subsequent possessors
to prove they are not thieves.
3. For the finder to become a prior possessor,
the finder must:
a. Intend to possess object； AND
b. Take steps toward possessing object
Thus, mere discovery is not enough for possession.
第三章:占有
3.1 Possession
在英美的财产法上,占有一词有两种不同的表述:"Seisin"和"Possession".
"Seisin"是指对不同产的的占有,"Possession"是对动产的占有,"Seisin"并非指单纯
的占有,它是和权利相关联的概念,主要是指通过占有获得收益的权利；而"Possession"则
不同,它不表明通过占有而获得收益的权利。占有（Possession）是指在事实上占据或控制
财产的一种权利。占有权主要包括以下基本内容:（1）原始占有,A野生动物的占有（Wild
animals）,B优先占有（First possession）,C政府优先占有；（2）发现者占有权
（Finder of
lost articles）；（3）时效占有（Adverse possession）；（4）委托占有
（Bailment）。
美国财产上法的占有还可以根据不的属性划分为不同的种类:
实际占有（Actual possession）和推定占有（Constructive possession）
独自占有（Sole possession）和共同占有（Joint possession）
善意占有（Possession Bona Fide）和恶意占有（Possession Mala Fide）
英文注释:
Possession is difficult to define. A person is in possession
of object he physically controls （such as an apple held in his
hand）。 But he
may be in possession of objects not in his presence, such as
the chair
in his backyard when he left for work. A person may even be
in
possession of objects in his house, or under the soil of his
house
（i.e. minerals or oil）, of which he is unaware. Thus, like property,
possession is an elastic word； its meaning varies with the context
involved and the purposes in view.
B. Different than ownership: Possession is not
the same as ownership. Ownership is "title," and is
usually proved by showing documents signed by the previous
owner of first possessor transferring title to the present titleholder.
Possession is proved by showing physical control and the intent
to
exclude others.
NOTE: Possession is easier to prove than ownership.
EX:A buys a watch from a jeweler, who bought
it from the manufacturer. B steals the watch from A. To recover
the watch, A must prove ownership or prior possession of the
watch. To prove ownership, one must produce the sales slip from
the jeweler or other proof of title, which A has probably lost.
To prove prior possession, though, A has only to prove that
the watch was in A's physical possession before theft.
C. Constructive possession: A person is in "constructive
possession" when the law treats him as if he is in possession
although, in fact, he is unaware of it. Constructive means "in
the eyes of the law." A court can still find the find has
better claim than the private property owner.
EX: In South Staffordshire Water Co. v. Sharman,
P allowed D to
enter his property to clean the pool. D found some rings, and
claimed
he should own them. Ct. ruled that D was allowed on premises
for
the limited purpose of cleaning, under the direction of P, and
that
P is entitled to objects found, even if he is unaware they exist,
since he
is the owner of the property.
3.2 Wild animals
翻开美国原版的财产法著作,在谈到"占有"问题时,最先谈到的总是野生动物（Wild
animals） 的占有问题,根据罗马法的观点（Roman law veiw）,野生动物属于共有财
产,不属于任何人（Belong
to no one ）,因此,对野生动物的占有属于财产的原始取得。根据优先占有原则,野生
动物属于最先占有和控制的人。那么什么是占有和控制呢？先来看看美国财产法教材经常
引用的三个经典案例（Leadin
cases）:
案例一:Pierson v. Post
Facts（案情）: P（plaintiff,指原告,下同） was hunting a fox on wild,
uninhabited
land. He and his dogs were hunting and pursuing the fox. Knowing
that the fox was being hunted by P and within his view, D（defendent,指被告
,下同）
killed the fox and carried it off.
ISSUE（问题）: who has ownership of the fox？
HELD（判决）: in view of the fox is not enough. The fact that the
land was wild and inhabited is important. The court looks at
a bunch of treaties to decide this case because there wasn't
much case law. One authority hold that actual bodily seizure
is not necessary to constitute possession of wild animals. The
mortal wounding of an animal or the trapping or intercepting
of animals so as to deprive them of their natural liberty will
constitute occupancy. However, here, P only shows pursuit. hence
there was no occupancy or legal right vested in P and the fox
became D's property when he killed and carried it off.
这是由纽约州最高法院终审的经典案例,事情发生在1805年,原告带着他的狗在野外的
一块土地（uninhabited
land）上追逐一只狐狸,这一切,被告都看在眼里,他跑过去杀死了那只狐狸并将它取走
,摆在法官面前的问题是,谁将拥有这只狐狸的所有权（who
has ownership of the fox）？法院最后认为:占有野生动物需要捕获该动物而不仅仅
是追逐（The most
important thing to remember regarding possession of wild animals
is that the law requires capture rather than pursuit.）,当然,“捕获”并不一
定要求从形体上控制住该动物（Actual
bodily seizure）,有时候,击中其要害（mortal wounding）也可以构成对野生动物的
占有（possession
of wild animals）。
案例2:Ghen v. Rich
Facts: D purchased a whale at auction from man
who found it washed up on the beach. The whale had been killed
at sea by the crew of P's whaling ship which left P's identifying
bomb-lance in the animal. The custom was when the crew of a
whaling ship killed a whale using its identifying bomb-lance,
the ship's owner was considered the owner of that whale. The
finder ignored custom and sold whale.
Held: the court mentioned:
1. marks of appropriation enough
If the whale is killed and left ashore with the marks of appropriation,
it is the property of the captain.
2. Involuntary abandonment （anchor fails to hold）。 After initial
capture, possession was complete.
Anchor failed to hold in this case. Possession here was complete
because whale was killed and marked. Possession unequivocable
intention of appropriating for own use.
3. Notice to world is enough for possession
Whale escaped wounded and with the iron attached to it. Held
that first iron marking was enough. Goes to first captor. Ps
did all that it was possible to do here to make it theirs. This
particular trade usage was necessary to the survival of the
whaling industry, for no one would engage in whaling if it could
not be guaranteed the fruits of his labor.
Rule: When all that is practicable in order to secure a wild
animal is done, it becomes the property of the securer who has
thus exercised sufficient personal control over the wild animal.-
Marks of Appropriation here sufficient enough to establish a
property right.
这个案例发生在1881年,是说在捕鲸业,有一个行规（Custom）,鲸被人擒拿并拥有后,
鲸的所有人通常以鲸身上的标记（bomb-lance）将自己所属的鲸和他人的鲸相区别,如果该
印有标记的鲸逃跑并回归自然,为了保护行规,法官通常的态度是,所有人并不丧失所有权,
他有权实施各种努力重新占有印有标记（bomb-lance）的鲸。
由于有行规的保护,在案例1中适用的捕获原则（Capture）在这里就不适用了。当然,
这种行规也有它的不足之处（Disadvantages）:
1） custom changes over time
2） what about when a new person who does not know the custom
comes into the society？
案例3:Keeble v. Hickeringill
Facts: P contended D scared ducks away from his
pond resulting in damages. Here P is the owner of the land who
sets decoys to trap ducks. D came and chased them all away.
Issue: May recovery be had for the frightening of wild game
off one's property？
Held: Yes. Damages may be recovered for intentional frightening
of wild game off another's land. Although no title to the game
existed, P was using his land in a lawful manner. Court held
for public policy and fact- he had "constructive possession
of ducks".
这个事情发生1707年:原告有一个池塘,专门用来引诱和捕捉野鸭的,但被告却故意过来
威吓和驱赶那些野鸭,于是原告就控告被告干扰了他谋取利益的权利,要求赔偿。被告认为
对这些野鸭没有财产权,因为原告没"占有"他们,.原告能胜诉吗？答案是肯定的。在私人土
地上行走的活动的野生动物,被推定为土地所有人占有（constuctive
possession）,所以原告诱捕野鸭和以此谋利并不为法律所禁止,任何妨害他这种生意
（Business）的行为都要负损害责任。
总之,先占者（Prior possessor）原始取得野生动物所有权,此为野生动物所有权取得
的原则。先占是对野生动物的最先占有。占有必须具备两个条件,一是指对野生动物的事实
上,物理意义上的管理和控制；二者是占有人在主观上确有占为己有的目的。仅仅是对动物
的追赶,尽管追赶者付出很大努力,只要追赶人未实际占有动物,或有他人已经先行占据了动
物,追赶均不能成为追赶人取得所有权的依据,追赶者不能以其追赶行为对抗先占人。从上
面的几个案例,我们可以看出这一原则也是有例外的。
3.3 Acquisition by Find
在美国财产法上有五种不同形态的无主物:丢失物（lost property）,错放物
（Mislaid）,抛弃物（Abandoned
property）,无主财宝（Treasure trove）和沉船（Shipwrecks）。对以上几种无主物
的占有,美国法律一般认为,丢失或错放财物的所有权仍属于财产的原主人（An
owner of property does not lose title by losing his property）。但是,除了真
正的物主（true
owner）之外,发现丢失财物者对该财物的占有优先于其他任何人（Finder is
entitled to possession
against all the world except the owner）,我们在第一提到的Armory v.
Delamirie案就是这方面的典型例子。
下面我们来简要分析一下无主物的所有权取得（Acquisition by Find）中的法律关系
:
A. 真实物主和发现者的关系（True Owner v. Finder）
1. 丢失或错放财物的所有权仍属于财产的原主人,没有“finders keepers”这样的说
法。（Lost or mislaid
property goes back to True Owner）。
2. 抛弃物归发现者所有（Abandoned property goes to Finder）,另外,抛弃物用拉
丁文表示为"res
derelictae",这在原版的财产法著作中经常看到。
B. 发现者和土地所有者的关系（Finder v. Landowner）
1. 非法入侵他人领地者,发现丢失物,不可取得对丢失物的占有权,丢失物归现场土地
的所有人占有（Property always
goes to Landowner if Finder is trespassing）。
2. 在私人场所发现无主物,私人场所的所有人而非发现人取得占有权（Abandoned,
lost or mislaid
property goes to Landowner if found in a private home）。
3. 在向社会开发的领地上发现丢失物或遗忘物,发现才取得占有权（Abandoned or
lost item goes
to Finder if found in an area open to the public）。
4. 在向社会开发的领地上发现错放物,领地所有人取得占有权（Mislaid item goes
to Landowner
if found in an area open to the public）。
5. 家佣在其被雇佣工作期间发现丢失物,主人取得占有权（servant finds for his
master）。
其次,在美国,关于无主物的占有取得还有不少政策上的考虑,详情如下:
Policy concern: need some rule but does it have to be finder
get property and prior possessor prevails？ Could be all goes
to the government or whoever needs/values it most. Why does
it have to be winner take all, could you split it. Justifications
for protecting prior possessor's rights are:
1） it preserves law and order, cuts down on succession of theft
or frequent change over of possession,
2） rewards those who possess and maintain property, puts land
to good use,
3） allows for entrusting of goods, bailment, which is an efficient
practice
4）promotes honesty by protecting a finder who reports a find
5） reward labor in returning a useful item to society
6） protects owner without documentation or proof of ownership
7） prior possessors expect to prevail so reinforces idea that
law is just
美国财产法中有关无主物占有问题的几个案例,几个热心的网友帮忙做了翻译,供参考
。
1. Eads v. Brazelton （1861）； briefed 8/27/94
Facts: AA Brazelton found the wrecked steamboat
America sunken in the Mississippi, and placed a bouy over it,
and to marked a fix on some nearby trees, intending to return
the next morning to recover the large amount of lead abandoned
therein. However, AA was unable to return during the next several
months and BB was able to find the wreck on his own, and commence
lifting the lead from it. AA. sued for recovery of his property
in the wreck, and to obtain compensation for the lead that BB
removed.
Issue: Were AA's efforts （marking the fix, placing
the bouy） sufficient to vest in him property rights for the
abandoned wreck？
Holding: No. "The occupation or possession
of property lost, abandoned, or without an owner must depend
on an actual taking of the property with an intent to reduce
it to possession".
Reasoning: The court reasoned that AA's actions
were not sufficient to warn away intruders, and so he had not
effectively taken possession of the wreck. Placing a boat there,
and making persistent efforts to raise the lead, would have
been acts of possession.
Notes: "the law does not clothe mere discovery
with the exclusive right to the discovered property because
such a rule would provide little encouragement to the discoverer
to pursue the often strenuous task of actually retrieving the
property……".
网友lawdent译:
1. Eads v. Brazelton （1861）； briefed 8/27/94（摘要）
AA 布拉泽登在密西西比河中发现美国轮船的沉船遗骸,他在上面放置了浮标,在附近的
树上也作了固定标记,打算第二天早上返回那里打捞沉没河底的石墨。但是,AA几个月内都
没能回去,而BB凭借一己之力也找到了遗骸,开始打捞石墨。AA起诉请求保护其对于沉船遗
骸的财产权,并就BB取走的石墨请求赔偿。
问题: 是否AA的努力（设置浮标与固定标记）足可以使沉船遗骸的财产权归其所有？
裁定:否,占有或拥有被丢失或被抛弃的财产或者无主财产,要看是否已经实际取得该财
产,并具备了所有意图。
推理:法庭认为,AA的行为不足以产生告诫入侵者不得靠近的作用,所以他尚未有效占有
该遗骸。泊船该处并持续努力打捞石墨,才是占有行为。
注:“法律不因发现人的单纯发现行为就赋予其对于所发现之财产享有独占权利,因为
这样的规则不能激励他继续艰辛工作,真正找回该财产……”。
2.Armory v. Delamirie （1722）； briefed 8/28/94
Facts: AA found a jewel and took it to BB's goldsmith
shop where BB's apprentice removed the jewel under the pretense
of weighing it, and informed BB of its weight. Then BB offered
the AA money for it, but the AA refused and insisted upon the
return of the jewel, at which time the apprentice returned the
empty setting without the jewel in it to the AA .
Issue: Does AA , in finding the jewel, have sufficient
property right in it to keep it from the BB？
Holding: Yes. A finder obtains exclusive property
rights of his find against all others except the rightful owner.
Reasoning: Although unstated, I believe the reasoning
to be that if the finder was not protected by the right to exclude
others from taking his find, simply because it was previously
unowned, that there would be no incentive to the discoverer
to bring the found item to a socially useful purpose.
Note: The court awarded the AA damages amounting
to the value of the finest jewel that could possibly be mounted
in such an arrangement, because BB was unable to produce the
actual jewel for return to the AA .
网友-steven译:
AA捡到了一块珠宝并把它卖给了BB.在BB的珠宝店里,在假装给珠宝称重量的掩饰下,BB
的学徒偷走了珠宝,但把珠宝的重量告诉BB.接着BB把珠宝款给了AA,但AA却拒绝收款并坚持
索回珠宝,因此学徒将已取下珠宝的空壳给了AA
问题:在找到珠宝的情况下,AA有充分的财产权以要回珠宝吗？
观点:除了不能对抗真正的所有人,捡到者对该财产有排他性的财产权利
分析推理:虽然在这一点上没有明文表述,但我相信这样的分析:假如仅仅因为该财产以
前归别人所有而不对捡到者的财产权利进行保护的话,那将无法鼓励财产发现者将其用于有
益的社会目的
注释:因为AA不能拿出实在的珠宝返还给BB,法庭判AA有权获得损害赔偿,损害赔偿的价
值应相当于 此类交易中所可能镶嵌的最好珠宝的价值。
3. Bridges v. Hawkesworth （1851）； briefed 8/28/94
Facts: AA , while leaving BB's shop, found a parcel
which had been lying on the BB's shop floor. When opened, it
was found that the parcel contained a stack of bank notes. AA
then requested that the BB retain the notes and return them
to the owner. After 3 years had passed, the owner had not claimed
the notes, and so AA requested that the BB turn over the notes
to AA . BB refused, and AA brought action to recover the notes
from BB.
Issue: Does the fact that the notes were found
inside the BB's shop give the BB the right to keep them from
AA , who is the finder？
Holding: No. The finder of a lost article is entitled
to it as against all parties except the real owner, even if
the discovery occurred on another's property.
Reasoning: The court cited Armory v. Delamirie
as authority for their holding. The court further reasoned that
since the notes were never in the custody of the BB, nor under
the protection of his house before they were found, he had no
responsibility for them and therefore could not have accrued
property in them before the finding by AA .
Notes: Armory v. Delamirie may have been interpreted
too broadly in this case, because Armory did not consider the
rights of the person in which the jewel was found.
网友qdwzl2002译
布里奇斯诉豪克斯伍兹:（1851）摘要8/28/94
事实:当aa离开bb的船时,在bb的船的地板上发现一个包裹。他打开包裹时发现里面时
一叠银行票据。AA将票据交给BB保管以便返还失主。3年后,失主仍未要求票据权利,因而AA
请求BB将票据返还给自己。BB拒绝,AA就返还票据一事对BB提起诉讼。
问题: 在BB的船上发现内有票据的包裹这一事实赋予BB获得将包裹从AA处取回保管的
权利了吗？ 谁是发现者？
观点:遗失物的发现者有权对抗除物之所有者之外的所有人,即使这项发现发生在其他
人的财产上。
理由: 法庭引用Armory v. Delamirie一案作为他们的权威依据。法庭给出的更充分的
理由是:包裹从未被BB保管,在包裹被发现前也从未被BB保护,BB对包裹从未有责任因而在AA
发现包裹前也自然未产生所有权。
注:Armory v. Delamirie的例子在此案中被运用的太广泛,因为Armory没考虑 发现宝
石所在地所有人的权利。
4. South Stratforshire Water Co. v. Sharman（1896）
（England）； pg. 102； briefed 9/4/94
Facts: AA's owned a fee simple property on which
was a pool that they contracted with BB to clean. While cleaning
the pool, BB found 2 gold rings. AA demanded said rings from
BB, who instead turned them over to police to find the original
owner. When the owner was not found, police returned the rings
to BB, and AA sues to recover rings.
Issue: Did AA exercise compete control of the
property and everything in it and thus have the general right
to demand anything found in the pool by his employee？
Holding: Owners of non-public property obtain
presumed possession of items abandoned on their property when
they are found by persons acting on his behalf if the owners
actively control use of their property, and the things which
are on it or in it, by excluding unauthorized interference.
Reasoning: The court distinguished this case from
Bridges, where a parcel of bank notes was found on the floor
of a shop open to the public, by noting that the money in Bridges
was found in a walkway open to the public, and that the rings
were on non-public use property over which the owner intended
strict control of all things on or in his property. It was also
reasoned that to hold otherwise would encourage people to pocket
what they find on another's property.
Notes: In Pyle v. Springfield Marine Bank, a safe
deposit vault was deemed to be a private area, and so valuables
found on the floor belonged to the bank and not the finder.
In a similar case Parker v. British Airways, the opposite resulted
when a passenger found a bracelet in first class because, although
the airline executed a limited control over who came and went,
and what they could bring in, their control was not construed
to include controlling all articles on or in the plane.
网友逍遥译
4、South Stratforshire Water Co. v. Sharman（1896） （England）；
pg. 102； briefed 9/4/94
事实:AA 拥有一处有绝对处分权的地产,其上有一池塘,AA雇佣BB清理。在清理过程
中,BB发现了2枚金戒指。AA要求BB交付戒指,BB却交给了警方以期找到失主。警方在没有找
到失主之后将戒指还给了BB.AA由此向法院起诉,要求BB交还戒指。
问题:AA是否对该地产及其中的任何物品有绝对的控制权,并因此得对其雇员在池中找
到的任何物品主张权利？
裁定:私有财产的所有者对代表其行为的人在其有效控制的财产之上发现的任何抛弃物
得享有占有的权利,并且不受任何无授权的干涉。
理由:法庭区别了本案和Bridges.在Bridges中,一包银行纸币在一个对外营业的商店地
上被发现。与该案中钱在公共走道上被发现不同,本案中的戒指是在私有地产上发现的,且
所有者对其财产中及其上的所有物品均有严格的控制。另外,如果作出相反裁定,则会鼓励
人们隐匿在他人财产上发现的物品。
注解:在In Pyle v. Springfield Marine Bank案中,一个保险库的拱顶被视为私人区
域,所以在该处发现的贵重物品属于银行而不是发现者。在一个类似的案件Parker
v. British Airways中,对一个旅客在头等舱发现的一个手镯则作出了相反的处理,因
为航空公司仅限于控制谁及带什么东西进入飞机,而不包括控制飞机上和飞机里的所有物品
。
5. Hannah v. Peel （1945） English, Pg. 105, briefed 9/4/94
Facts: AA was a corporal working in a gov't requisitioned house owned by
BB, when he found a brooch that was covered in cobwebs. BB offered AA a reward
for the brooch, but AA turned brooch over to police and obtained a receipt.
When the owner was not found after 2 yrs, the police returned to brooch to the
BB instead of the AA, and the BB sold it.Issue: Did the BB own the brooch
simply because he owned the house, or should it belong to AA, the finder？
Holding: Possession becomes vested in the finder against all but the
rightful owner when the item is found by
a person who is not the agent of the owner of the property where
the item was found, and the owner does not actually physically
possess the property where the item was found.
Reasoning: The court likened this to Bridges and
decided that the owner of the house never physically possessed
the house, and never had knowledge of the brooch before it was
found. Thus, the owner did not necessarily have possession of
everything lying unattached on his property, specifically this
brooch.
Notes: 4. Bridges was also cited in Durfee v.
Jones where the owner of a safe had no knowledge or real possession
of money that was found by a person he had entrusted the safe
to for display. 5. In determining who "found" the
money in a lost sock, the court held that the "finding"
did not occur until the sock was broken open, and so all of
the boys present were joint finders.
（5. Hannah v. Peel （1945） English, Pg. 105, briefed
9/4/94）。
网友albert译:
事实:BB的房屋由政府征用,下士AA在该房工作时,发现1枚蛛网覆盖的胸针。BB为此奖
励了AA.但是,AA
将胸针交给了警察并得到收条。两年后,无人认领,警察将胸针返还给BB而不是AA,BB将
胸针卖了。
问题:BB只因其是房主就有权拥有胸针吗？还是这枚胸针属于发现者AA？
裁决:物由不享有物之代理权的人发现,发现者可以对抗物的所有人外的任何人,但不能
对抗物之所有人,即使物之所有人在发现该物时没有占有该物。
推理:法庭将此比做桥并裁定房主从未亲自占有胸针,在胸针发现之前也从未得知此事
。因此房主不一定拥有并非其财产附着物的任何物品,比如这胸针。
注:4.桥也在Durfee v. Jones 一案引用。保险箱的主人将保险箱委托展示,被他人发
现其箱内有钱,保险箱的主人不知道或真正拥有该钱。5.在裁定谁“发现”了遗失的短袜中
的钱时,法庭认为短袜破裂时才“发现”钱,因此在场的全部男孩为共同发现者。
6. McAvoy v. Medina （1866）, pg. 108； briefed 9/4/94
Facts: AA was a customer of a barber shop owned
by BB. AA found a wallet with money in it laying on the table
of the BB. BB. retained the money in hopes of finding the true
owner. AA claimed that as finder, he should be allowed possession,
since the owner was not found.
Issue: Was the wallet "lost" under the
general meaning in Bridges, allowing the finder to claim possession
against all but the true owner？
Holding: When an item of property is deliberately
placed by the owner on the premises of a shop owner and then
forgotten, it is not "lost" in the ordinary meaning
of the word, it is mislaid, and the shop owner retains possession
against all but the true owner, even if the shop owner is not
the finder.
Reasoning: The wallet was not dropped, and it
did not appear to be "lost" by negligence, but rather
it appeared that the true owner had intended to pick it back
up again but had forgotten. Placing the wallet on the table
would be an ordinary thing to do in a barber shop, and so the
barbershop owner should keep it until the customer that left
it returned.
网友ldman译:
6. McAvoy v. Medina （1866）, pg. 108； briefed 9/4/94
事实:ＡＡ是ＢＢ所有的一家理发店的顾客。ＡＡ在ＢＢ的桌子上发现一个装有钱的钱
包。ＢＢ把钱留下来,希望能找到失主。ＡＡ声称是自己发现的钱包,钱包应归其所有,因为
失主没有找到。
问题:钱包是否依照ＢＲＩＤＧＥＳ原则（什么东东啊？）的通常含义“已经丢失”,
依据此原则可允许发现失物者对抗失主之外的所有人,主张拥有失物。
裁决:如果某物的所有者将其故意放在店主的场地,然后忘记拿走,该物并没有依据“丢
失”这个词的通常含义而真正丢失,而只是被放错地方。店主拥有对抗除失主外的所有人保
留此物所有权的权利,即使店主不是失物的发现者。
理由:钱包不是掉了,也不是因疏忽而“遗失”,,而是看来失主原打算再拿起来带走但
忘记了。在理发店将钱包放在桌子上是很平常的事,因此理发店店主应保留钱包,直至遗忘
钱包的顾客返回。
7. Schley v. Couch （1955）, pg. 109； briefed 9/4/94
Facts: Petitioner is he owner of a tract of land
on which stood a garage with a floor that was partially concrete,
and partially dirt. Petitioner hired respondent to lay concrete
over the dirt part of the garage floor. While digging in the
dirt part, the respondent found a jar of buried money that was
placed there 4 yrs prior by the previous owner. Both parties
claim possession against all but the true owner.
Issue: Was the jar of buried money "lost",
or a "treasure trove" （therefore entitling the finder
to possess it） or was it "mislaid" （therefore entitling
the property owner to possess it）。
Holding: The owner of the property on which buried
money which is found embedded in the soil under circumstances
that do not support the idea that the money was lost due to
neglect, carelessness or inadvertence, but rather which circumstances
suggest that the original owner intended to return to claim
the money, has the presumed right to possess the found money
against all but the original owner.
Reasoning: The Texas court rejected the British
notion of "treasure trove" （where the finder retains
possession）, and instead limited its analysis to whether the money was
lost or mislaid. They reasoned that the original owner simply forgot where he
had buried the money, and so judged the landowner to be the presumed possessor.
网友lh125125
案例:原告有一块儿地,地上建有一个修配厂,修配厂的地面有一部分是水泥地面、另一
部分是土的。原告雇佣被告将土的体面铺成水泥的。在挖地面的时候,被告发现一罐被这块
地以前的主人在4年前埋在地下的钱。
原告和被告双方（除这块地原来的主人外）都声称自己拥有所有权。
问题:这罐钱实是丧失物、或无主物（这样的话税发现归谁所有）,还是错放物（归放
置地的产权所有者所有）。
裁决:当这些钱是由于其主人故意埋在那里并有意图回来取,而不是由于疏忽、大意、
或不经心丢在那里的情况下,埋藏地的产权所有者对这笔钱应该比其它任何人（这笔钱原来
的真正主人除外）更有理由拥有所有权。
推理:德克萨斯法庭没有采用英国“无主埋藏物”的判案结论（那样的话应该归发现者
所有）,而只是限定在遗失物和错置物两者之间进行分析判断,他们推理认为,原来的主人只
是忘记把钱埋到哪里了,所以判定这笔钱归发现时土地的产权所有者所有。
网友fangmin1译:
7. Schley v. Couch （1955）, pg. 109； briefed 9/4/94
事实:原告是一片土地的所有者。在这片土地上有一间车库,车库的基底一部分铺了砖
块,另一部分则是泥土地。原告雇佣被告欲将泥土部分铺成砖块。而在挖泥土部分基底的过
程中,被告发现了一罐掩埋了四年之久,应归他人所有的钱币。于是,两人都认为自己是除真
正所有人之外的财产拥有者。
问题:这罐埋藏的钱币是丢失物、无主埋藏物（应赋予发现者拥有）还是错放物（应赋
予发现地的财产所有人/地主拥有）？
裁决:发现埋藏钱币的发现地的财产所有人/地主,被推定为拥有财产权而可以对抗除原
所有权人以外的所有人,不是因为钱币的丢失是原财产所用人出于疏忽、大意或漫不经心这
样一种观点,而是因为在此种情况下表明原所有人仍有意取回本属于自己的钱币。
理由:德克萨斯州法院驳回了British（普通法？）关于无主埋藏物归先占人的主张,去
而代之是对钱币的划分限制在是丢失物还是错放物之间。他们（法官们）充分认为原财产
所用人只是一时忘记埋藏的财物而已,因此判定土地所有者/地主为财产权利人。
3.4 Adverse Possesstion
Adverse Possession意译为时效占有,也可以译为相反占有。时效占有也是取得财产所有权的一种方法,是指无法律根据而占有他人财产者,根据法律规定的时间在一定条件下取得此项财产的所有权,财产所有人在法定的期限内不行使权利即被丧失收回其财产的诉讼权利,所以有美国学者称时效占有为
为法律认可的小偷（Legalized Theft）,时效占有须具备一定的条件（Requirements of Adverse
Possession）:
1. Actual entry（实际占有,对标的物施以事实上、物理意义上的直接控制和管领）,
2. Exclusive possession（唯一占占有,也可以称为排他占有）
3. Open and Notorious（公开占有,是说这种占有必须是公开的,众所周知的和可见的）
4. Continuous uninterrupted possession（持续占有）
5. Statutory period（占有所持续的时间已经达到法律所规定的时效,时效又可译为statue of limitations）。
为了帮助读者更好的理解Adverse Possession,我们摘录一篇与其有关的短文,希望读者在阅读时注意以下几个概念:
color of title,privity, Objective Test, Subjective Test, Good
Faith, Bad Faith,等等。
Adverse Possession
A. Theory of adverse possession is that if within the number
of years specified in the statute of limitations, the owner
of land does not take legal action to eject a possessor who
claims adversely to the owner, the owner is thereafter barred
from bringing an action in ejectment and the adverse possessor
gains title to the land. If a man neglects to enforce his rights
he looses them.
-rationale is that an owner should be keeping a good eye on
his property and that if someone comes and take possession of
it, it is his fault, by virtue of the owner' absence he has
legally forfeits his rights .
-burden is placed on land owner to attend to check for squatters,
eject any trespassers, and go to court if can't get them out
through self-help
-government land generally exempt from adverse possession under
theory they couldn't watch over lands like a private owner should.
B. Adverse possession is a means of acquiring title to property
by long, uninterrupted possession. The running of the statute
of limitations on the owner's action not only bars the owner's
claim to possession, it ends the old title of the owner and
creates a new title in the adverse possessor.
- Doctrine of relation back says that a successful adverse possessor
gets a new title which dates back to the time when the statute
of limitations began to run. The old owner can no longer sue
for mesne profits （the reasonable rental value of the land）
during possession.
- a possessor's claim was originally good against everyone but
the true owner, after statute of limitation runs it is superior
to the whole world
- new title by adverse possessor can be transferred as any other
through deed （alienable）, will （transferable）, or intestacy
to heirs （descendible）
- can't record title through adverse possession in court because
there is not recordable document, unless adverse possessor files
a quiet title action against the original owner which will record
title
- adverse possession is legislative in length of statute of
limitation and judge made in regards to other requirements such
as adversity
C. Statutory period, length of time required to gain land through
adverse possession, varies from state to state. In California
it is only 5 years, others have periods up to 21 years.
- modern trend is to shorten the period of adverse possession
B. Adverse possessor before acquiring title can evict a subsequent
possessor because she is a prior possessor and has title superior
to all, but the true owner. She can transfer her property interest,
possession, to another in tacking. However, she had no interest
in the property against the true owner.
F. Requirements of Adverse Possession: an adverse possessor
must show 1） an actual entry, 2） giving exclusive possession
that is, 3） open and notorious ,4） adverse and under a claim
of right 5） continuous for the statutory period.
1）Actual entry is necessary to begin the cause of action and
start the statute of limitations running.
-if someone actually enters part of the land described in a
deed, the possessor may be deemed in constructive possession
of the rest, but have to show actual entry of some part of the
land.
2） Exclusive possession, adverse possessor must not be sharing
possession with the owner nor with the general public； idea
is that if the adverse possessor was sharing possession with
the owner or someone else the owner may not realize that the
adverse possessor was claiming ownership against him
- It is possible for two or more persons living together to
acquire title by adverse possession as tenants in common
3） Open and Notorious, the adverse possessor must occupy the
property in such as way that an attentive and reasonable land
owner would know that someone was occupying the land and claiming
possession. There is not actual notice requirement, but the
idea is to give the owner a chance to defend his property rights.
。 acts have to resemble those of an owner of the property, community
observing those acts would infer that the actor was claiming
ownership
。the type of act required depends on the type of property involved,
must resemble that of the owner, so if farm land need to cultivate,
wild land need to hunt on it and build cabin, city dwelling
need to put up a fence etc,
。 Each state may develop statutory requirements in addition
to the usual requirements to claim land through adverse possession.
Some require color of title, some, like N.Y, specify that if
there is not color of title adverse possessor must have substantially
enclosed land, and cultivated and improved it. Common law didn't
require that land be put to good use, but some statutes require
it.
4） Adverse, under a claim of right, possession must be without
the owner's consent （sometimes referred to has hostile, but
does not refer to any animosity）。 Adversity is meant to assure
that owner knows of a possessor's claim to assert title, claim
of right. Further requirement, beyond lack of consent, for adversity
depend upon statutory additions and whether court applies an
objective or subjective （good faith/bad faith） test.
。 Objective Test: Majority view that the state of mind of the
possessor is irrelevant, adversity is determined by actions,
whether or not he is occupying the land without the permission
of the owner. If adverse possessor looks like he is claiming
ownership, and the community would view him as such then the
claim is adverse.
- Under objective test someone can gain title through adverse
possession even though not actually calming title against true
owner if actions indicate as that he is occupying the land as
if he was the owner
。 Subjective Test: The state of mind or intent of the adverse
possessor is evaluated to determine adversity, could be either
good faith or bad faith test. Criticized because it encourages
people to lie on the witness stand either to claim honest mistake
or malicious intent, it's irrelevant in objective test
。 Good Faith, adverse possessor honestly believes that he has
title to the land and that his possession is not adverse.
- under good faith test, if possessor knows he does not have
title and someone else does, he can't obtain title through adverse
possession even if he meets all other requirements because his
possession is not deemed adverse, mere squatter can't be adverse
possessor under this test
- Many states require an act of good faith, even those claiming
to adopt an objective standard. A possessor acting under an
honest mistake is holding adversely, but a person who knows
the land is not his and occupies it with bad intentions should
not gain title to someone else's land.
- California overtly requires good faith, plus payment of property
taxes
。 Bad Faith （aggressive trespass standard） adversity possessor
must know that he does not have title and still intend to occupy
the land and claim ownership anyways. This is small minority
view.
- some states say （at least in boundary disputes） that if possessor
mistakenly believes he has title, but would not claim title
if he knew the truth, that he is not occupying adversely
- criticized for rewarding intentional wrongdoing and punishing
those who made honest mistakes
。 Payment of property taxes is needed in several Western states,
including California, to gain land through adverse possession.
Payment of taxes are recorded in the courthouse and give notice
to the owner of an adverse possessor.
-even if not required, paying taxes is a good indication of
a claim of right
。Color of Title is a claim based on a written instrument （such
as a deed or a will）, or a judgment or decree which, unknown
to the claimant, is defective, and invalid. This arises when
the grantor of the deed does not actually own the land he deeded,
when the grantor is mentally incompetent, or when the deed is
improperly executed.
- Color of Title is proof of adversity in and of itself, it
is a prima facie case for claim of right, it thus reduces the
burden and thus makes attaining land through adverse possession
easier
- Most states require that grantee takes possession without
knowledge of the defect and must hold the faulty deed in good
faith
- Most states don't require color of title, even in good faith
requirement states, oral transfer can constitute honest claim
of title
- Some states reduce the length of the statutory period for
those claiming under color of title, or make requirements for
proving adversity more lenient if have color of title
。 Constructive adverse possession is a major advantage of color
of title in all states. The idea is that if a possessor enters
part of the land to which he thinks he holds title and satisfies
all the elements of adverse possession on that portion, he can
claim constructive possession over the rest. Without color of
title can only gain title to the land you are actually occupying,
with it one can claim the whole deed.
- The land has to be occupied in reasonable proportion to the
total deed, if occupy tiny fraction can't claim whole property
through constructive possession.
- If two adverse possessors occupy opposite ends of land and
the prior possessor occupies under color of title, he can eject
the subsequent possessor because he was constructively there
first.
- There are limits to the power of color of title. If an adverse
possessor is occupying one end of a property under color of
title and the true owner is occupying the other end, TO will
get part he is occupying and middle area because TO's deed is
valid and was there first.
- If two adverse possessors A1 won't get whole thing even though
claiming under color of title because constructive possession
interrupted by A2. A1 will get section he occupied plus the
middle.
- If adverse possessor only occupies part of one of two contiguous
lots can't claim adverse possession of the whole thing through
color of title unless the lots are owned by the same person.
Otherwise, owner wouldn't know that he was claiming adversely
and be able to stop it.
。 Boundary disputes often involve adverse possession when a
neighbor mistakenly believes a strip of land along an adjoining
boundary to be his and openly and notoriously occupies it. Majority
of states apply an objective test, some apply subjective （bad
faith） requirements for boundary disputes.
-Objective test in boundary disputes say possessor's mistake
or state of mind is irrelevant, if it appears to the community
that he is claiming ownership and does not have permission of
the true owner, than he is possessing adversely and has a claim
of right.
-Maine doctrine, Subjective test, say that if possessor is mistaken
as to where the boundary is and would not have occupied or claimed
the land if he had known the accurate line, then the possessor
doesn't have the intent to occupy adversely, bad faith test
in which intent matters.
- Subjective test, good faith requirement doesn't really apply
in most boundary disputes where it is an honest mistake, but
courts could require that possessor honestly believed the land
to be his own
- New Jersey view is an objective test, but if encroachment
is of a small area which is not obvious and requires an on-site
survey to disclose, then is not open and notorious, and the
statute of limitations doesn't run unless the owner has actual
knowledge of the encroachment
- If neighbors make an oral agreement about a disputed boundary
line, the agreement is enforceable, though not as a conveyance
- Long acquiescence, though it may be shorter than the statute
of limitations, can be held as an agreement over a boundary
line
- Estoppel says that if one neighbor makes positive representations
about a boundary line or remains silent, and the other neighbor
relies on such representation （Ex. spends lots of money ）, then
the first neighbor can't change his mind and claim another boundary
line.
。 A mistaken improver, someone who mistakenly erects a building
or part of a building on a neighbor's land thinking that it
was his own would be forced to remove his improvements at common
law. Modern trend is to give a good faith improver some relief
by either letting him pay damages to the neighbor or giving
the neighbor the choice of paying the improver for the value
of the building or selling the improver the land.
- Equitable relief is only available for those who acted in
good faith.
If a neighbor makes an intentional encroachment onto a neighbor's
land, the encroacher has to remove it or make a bargain with
his neighbor.
5） Continuous, uninterrupted possession throughout the statutory
period requires only a pattern of occupation similar to the
type of an average owner of that particular property. Adverse
use can be deemed uninterrupted even though there are periods
where the possessor is absent if the adverse state of mind continues.
- Purpose of the continuity requirement is to give the owner
notice that the possessor is claiming ownership and not just
entering in a series of trespasses. Owner thus not only has
to check regularly, but check at the right time.
。Seasonal use can satisfy the continuous requirement as long
as a normal owner would use the land in that way. Howard v.
Kunto, a summer home only needs to be occupied during the summer
for the length of statutory period. Same applies for seasonal
use of hunting cabin or grazing land.
。 Abandonment is the intentional relinquishment of possession,
if possessor abandons for any length of time without intent
to return, continuity is lost and statute of limitations starts
all over again should she return.
。Tacking by successive adverse possessors satisfies continuous
possession for the statutory period. One can tack onto his own
period of adverse possession any period of adverse possession
by predecessors in interest, but there must be privity of estate
between the adverse possessors. Howard v. Kunto with house that
were one lot off.
-Privity of Estate means that a possessor voluntarily transferred
to a subsequent possessor either an estate in land or physical
possession （ a reasonable connection between new and previous
possessor）。 If the transfer is not voluntarily, i.e. one possessor
ousts another possessor there is no privity of estate and tacking
is not allowed.
-privity is required because courts feel adverse possession
should be awarded for meritorious conduct and ousting someone
is not
-Tacking is not permitted where one adverse possessor abandons
the property and another enters immediately, there is not privity
of estate because the transfer was not voluntary
- Re-entry by adverse possessor who was temporarily ousted picks
up the statute of limitations where it left off. The possessor
can tack on her prior possession, but not the period in which
she was ousted, because during that time the owner did not have
a claim against her.
Tacking runs on the owner's side once adverse possession has
begun the statute of limitations runs against the owner and
all of his successors in interest. Gives advantage to the adverse
possessor.
两个与Adverse possession有关的经典案例:
1. Howard v. Kunto （1970）； pg. 1393, briefed 9/19/94
Facts: AA-appellee sought to sell half of his
waterfront land to another party, and so had a survey performed
to determine the exact lay of his property. When the survey
was performed, however, it was found that the previous surveys,
which were used for determining the deeds that were recorded
for each plot in the neighborhood, were in error by 50ft. Thus,
each lot that was occupied actually belonged in deed to the
person's next-door neighbor. BB-appellant occupied a house on
property that was described in the deed acquired by AA-appellee,
who sued for recovery of the land described by the deed. BB
contended that a long string of previous occupiers of the house
adverse to AA constituted a new title in BB.AA argued that BB
could not tack his adverse possession time onto that of his
predecessors because it was only a summer house, and therefore
not "continuously" occupied, and that the chain of
possessors was not in "privity" because the deed was
to the wrong tract of land. Trial court ruled for AA, BB appealed.
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 occupancy 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 mathematical 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.
Notes: 1. The privity requirement can be fulfilled
by a relation between disseisors of grantee/grantor, ancestor/heir,
or devisee/devisor. Possession need not be directly by the disseisin,
but may be by someone authorized by him. 2. A possessor can
claim title to a land which he occupied for the statutory period
under the mistaken belief that it was his own, even though he
may not have muniment of title. 6. Most statutes have disability
clauses that extend the period required for adverse possession
if the owner is a child, insane, incompetent, etc. However,
there can be no tacking of disabilities, the statute runs with
any change in ownership. 7. There has been opinion recently
that the disability clauses should be removed because they prevent
some cases from being settled in a reasonable time when there
is clearly no opposition from the disabled land owner. The theory
is that the disabled persons relatives/friends will look out
for him, and the occasional loss will be offset be the increased
security against latent claims by disabled persons suddenly
being brought forward.
2 O'Keeffe v. Snyder （1980）； pg. 145, briefed 9/27/94
Facts: O'Keeffe is the painter who painted several
paintings that she claims were stolen from her studio in 1946.
She did not advertise that they were missing until 1972 when
she registered them as stolen with an Art Dealers Association.
Snyder bought the paintings in question in 1975 from a dealer
who claims that they were in his family since perhaps as early
as 1941-1943 （before the claimed theft）。 O'Keeffe discovered
the paintings in Snyder's gallery in 1976 and instituted an
action of replevin to recover them. Snyder claims both that
the statute of limitations for replevin of chattels had run,
and that he had held the paintings in adverse possession, through
tacking with the dealer's family, for over 30 years. Trial court
issued summary judgment for Snyder, holding that the statute
of limitations had commenced running on the date of the original
theft. Appellate court reversed and entered judgment for O'Keeffe
holding that Snyder had not proven the elements of adverse possession.
Issue: Who has best title to the paintings？
Holding: 1. Unlike in real estate adverse possessions,
in cases involving personal chattels, a cause of action will
not accrue, and thus the statute of limitations will not begin
to run, until the injured party discovers, or by reasonable
diligence should have discovered, facts which form the basis
of the action. （Discovery Rule）。
Dicta: 2. The expiration of the statute of limitations
bars the remedy to recover, and also vests good title in the
possessor. 3. In establishing adverse possession of personal
chattels, tacking of periods of possession between parties in
privity with each other is permitted in the same way as with
real estate.
Reasoning: 1. The literal language of the statute
of limitations results in harsh holdings when the property in
question is one which is easily concealed, or its display is
not visible broadly enough to put the owner on sufficient notice
of the identity of the possessor （analogy to jewelry worn）。
It would encourage larceny to hold that the strict letter of
the statute would prevent the owner from recovering an item
of which he never knew the identity of the possessor. 2. Before
the statute runs out, the possessor has a voidable title against
all others but the true owner. To leave the title in the original
owner after adverse possession would not put issues to rest
that were deserving of resolution because of their age and action
of the owner. 3. Not to permit tacking would enable the original
owner to have rights much longer than the statute of limitations,
and put a subsequent buyer in a worse position than the person
who took it wrongfully in the first place.
网友方明译:
这两篇好难翻译呀,硬翻了翻,欢迎大家一起探讨！
1. Howard v. Kunto （1970）； pg. 1393, briefed 9/19/94
案情: 被上诉人AA为了将一半属于自己的临水土地卖给他人,对所属土地的位置进行了一次准确测量。然而,测量结果出人意外:其地契所依据的前次测量存在错误,在于邻居相连的每一单位土地上都有50英寸的误差,也就是说标明在地契上的这些单位的土地,实际上应归其邻居所有。而上诉人BB有一套房屋却位于被上诉人AA地契所标注的土地上,于是AA起诉要求恢复行使地契上的土地权利。BB提出主张,认为长期占有该房屋已经构成了自己的一项新权利。AA提出反驳,BB在时间上不符合先占时效,理由是该房屋仅仅是避暑别墅,不能能构成连续占有。而且,这种连续占有不因为地契有误而构成一种“默示”。法庭判决AA胜诉,BB因此上诉。
问题:1.仅仅因为这套房屋是避暑别墅就能使时效先占的主张败诉吗？2.对于相邻的有契约记载的土地,如果认为自己是合法拥有者而占有该土地,那么能不能形成对该土地时效先占呢？
裁决:1.不能。对于连续占有的构成,只要占有财产的时间与该财产的一般用途相一致即可。2.能。如果一个相邻的土地,其上存在几个连续的真实交易,且有契约记载,持续被占有超过法令规定的诉讼时效,并且有充分的占有默示,那么这就构成了时效先占。
分析:1.法庭充认为连续占有规则并不是要求绝对精确的连续,而是只要该土地在一年中能够使用的期间被占有,这就足够了。2.“默示”要求有意排除交易链中的无关方,以避免使原所有人权利无效,并且表明在此种情况下的不实之处。每一个土地现持有者都是前持有者的正当购买人。此外,如果有人主张地契记载之外的土地,默示成立的话,那么对于地契记载的相邻土地,默示也应当成立。
注解:1.默示的要求可以通过受让人/被受让人、被继承人/继承人、接受遗赠人/遗赠人中的抢夺者之间的关系来实现。占有不必直接去侵占,通过授权人也可以。2.即使没有土地所有权凭证,占有人仍可以对其错误认识下占有的超过法定期限的土地主张权利。6.大多数法令都有限制条款,这些条款扩大了所有人是儿童、精神病患者、无能力人等的时效占有的期间。〈然而,残疾人不在其中,其任何所有权的变动依照法律规定。〉7.近来,有人提出废除限制条款的主张,理由是,当土地所有人是无能力人,而这些无能力人又没有明显的反对意见的话,这些条款成了案件在合理时间内解决的障碍。<理论上讲,无能力人的亲戚/朋友,可以代理其行为,况且特殊情况下的损失可以通过增加安全性以防止无能力人潜在的突然提前提出主张的可能性来抵消？gt；
2 O'Keeffe v. Snyder （1980）； pg. 145, briefed
9/27/94
案情:O'Keeffe是一名画家,是几幅油画的作者。她认为她的这几幅油画是1946年从其画室盗走的。直到1972年,她向一家艺术经销协会注册这几幅油画时,才声明油画被盗,而此前她一直未做遗失广告声明。Snyder于1975从一商贩处买下这些有权利瑕疵的油画,商贩称这些油画家中早有,时间约在1941-1943年（早于所称被盗时间）。1976年,Keeffe在Snyder的画廊展馆内发现自己的这些作品,于是提起诉讼要求返还这些油画。Snyder认为不管是根据动产返还限制的法律规定,还是自商贩家中得到这些油画,已超过三十年,从时效占有,他都是这些油画的所有人。初审法庭判决Snyder胜诉,认为油画从最初被盗之日,时效就开始起算。上诉法庭推翻原判,判决O'Keeffe胜诉,认为Snyder不能证明时效占有的基本事实。
问题:谁是这些油画的真正权利人呢？
裁决:和不动产的时效占有不同,在涉及动产的案件中,原告的诉讼缘由不是自然增加的,因此诉讼时效是从被损害方发现或者有合理的细心而应该发现构成基础的起诉事实时,开始起算。（发现规则）
断言:2.过期的诉讼时效阻却了权利的恢复救济,同时赋予占有人合法的所有权。3.动产的时效占有,在当事人之间对占有期间的默示与不动产的时效占有的默示是相同的。
分析:1.诉讼时效的法律规定在字面上导致这样不良的观点,有权利瑕疵的财产容易被隐藏,或者它的存在不够显而易见,以便使所有人充分注意确认持有人的身份（比如珠宝饰物）。这就鼓励盗窃者认为法律严格的字面意思将会使动产的所有人因不知道谁是真正的持有人而无法行使返还该动产的权利。2.时效期满前,持有人享有除对抗真正所有者以外的所有人,但是可以撤消的权利。<为了使时效占有之后的原所有人的权利引起的一系列问题不保持静止不动,更因为这些问题在年限和诉讼上,因此应当得到很好的解决。3.如果不允许先占的话,就会造成原所有人行使权利的期限远远长于诉讼时效,这样就使后买者处在比最初者更糟的位置。
3.4 Bailment
在英美法系委托占有译为"Bailment",是指非财产所有者受财产所有者之委托对财产所实行的合法占有。占有者不是财产的真正主人,而只是受财产所有者（bailor）的委托而代行保管,受托人（bailee）有义务照管该财产并如约将其送交财产的所有者。
委托占有分为三类:
1.完全为委托人利益（Sole benefit for bailor. i.e. "Take
care of this for me whileI'm away."）
2.完全为受托人利益（Sole benefit for the bailee. i.e. Borrowing items.）
3.双方互利（mutual benefit of both parties. i.e. coat check）
上述三种受委托人的义务如下:
A. 1: only for gross negligence
B. 2: only for slight negligence
C. 3: only for ordinary negligence
D. Cases of misdelivery-split
a. Majority- bailee strictly liable
b. Minority- apply standard of care for the appropriate
type of bailment.
E. Involuntary bailments and finders
a. A finder can be deemed a bailee of an item he finds, but
most of the time finders will not be regarded as
involuntary "gratuitous" bailees. Even in the case
of
finders, there is probably some benefit to the finder.
b. A potential finder has no obligation to take a found
good into possession, but if she does, she becomes a
bailee to the true owner.
在英美法中,委托占有有三个构成要件:（1）委托人必须对所委托的财物拥有所有权或占有权；（2）委托人必须将对所委托的财物的排他占有（Exclusive
Possession）和实际控制权交付与受委托人；（3）受委托人必须自愿接受和控制所委托的财物,并且知道他有按委托人的指令归还该财物的义务,愿意承担对该财物的保管和控制的责任。
2、相关案例分析
为了清楚地了解委托占有的这三个构成要件,我们首先来看看下面芝加哥与田纳西州的停车场丢失车辆的两个截然不同的判案:
威廉先生将车驶近了芝加哥市机场的普通停车场,停放在停车场的停车位上,由于该停车场停车并不需要预先付停车费,而在将车开离停车场时在出口处交付停车费,于是威廉先生锁好车,然后自己拿着车钥匙离开停车场去办理自己的事。当威廉先生办完事回到停车场时,发现自己的车丢失了。威廉先生只有持车辆的保险合同向保险公司索赔,保险公司赔偿了威廉先生车辆丢失的损失,同时也从威廉先生那里取得了代位权（Submgation）,保险公司以停车场作为受委托人应该承担车辆丢失的损失为由,向停车场提出索赔要求。停车场认为威廉先生只是租用了停车场的一个停车位,在威廉先生与停车场之间并没有委托占有的委托关系。芝加哥法院判决认为,停车场并未实际控制威廉先生的车辆,威廉先生和停车场之间也不曾有任何口头或其他方式的协议,因此,威廉先生与停车场之间并没有产生委托占有的委托关系,所以停车场不应赔偿威廉先生丢失车辆的损失。
另一个案例是由田纳西州最高法院所审结的一个有关现代化停车场车辆丢失赔偿的上诉案。案情大致为:上诉人是田纳西州一家名为海特的多层高级旅馆的主人。紧挨着旅馆主楼的后面是一个具有现代设备、现代管理方式的现代化停车场。该停车场只有一个进口和一个出口,单一进口处由售票机控制着,单一出口处由一位停车场工作人员控制,出口与进口相对,停车场工作人员在出口处的一个小亭子里可以随时观察到进出口的一切动静。停车场雇佣几名保安人员,都身着特制的保安服装,平时有两名保安值班,负责在旅馆以及所属场地包括停车场巡逻。停车场不仅供旅馆的住客使用,同时停车场经营也面向社会公众提供有偿使用服务。一天早上,被上诉人艾伦先生将自己的一辆新轿车开到该停车场的进口处,从自动售票机上取下停车票,售票机便自动打开停车场进口的栏杆,允许艾伦先生的车进入。艾伦先生将车开上四层,停放好车、锁上、取出钥匙,乘电梯离开了停车场。当艾伦先生几小时后返回停车场取车时,发现自己的新轿车不见了,艾伦先生找到出口处的停车场工作人员,得到的答复是:"噢,车没有从这里开出来。"艾伦先生便报告给上诉人雇佣的安全部门,然后又报告了警察,但艾伦先生的新轿车始终没有找到。艾伦先生作为该案的原告,对海特旅馆提起诉讼,要求被告赔偿。法院做出了有利于原告的判决,被告不服,向田纳西州最高法院提起上诉。
田纳西州最高法院经审理后,法官的判词为:在本案中,法院考虑到当车主将汽车停放在一个商业经营性的停车场而被盗丢失的情况下,便存在该停车场主人自然和外延的责任问题。下级法院根据本州以前的判例裁定,当车主将汽车停放在一个现代的、室内、多层楼与大型旅馆连接在一起的由上诉人所经营的停车场,并锁好自己的车时,委托占有的委托关系便已产生。田纳西州最高法院判决这个裁定是合理的,因而维持下级法院的判决,旅馆应当赔偿原告的损失。
有关Bailment的经典案例
1. Parking Management, Inc. v. Gilder, （1975）；
pg. 119, briefed 9/13/94
Facts: AA parked his car in a pay lot owned and
operated by BB. After parking, he opened the trunk in plain
view of some employees and placed his lady friend's cosmetic
bag inside, and locked it. The rear of the car was exposed to
the aisle. When he returned, he found his car damaged by being
pried open. A non-jury trial awarded him damages, the appellate
court reversed, and this court decided to hear en banc.
Issue: Was the parking garage liable for the damage
under an implied contract of the circumstances？
Holding: Yes. The operator of a commercial "park-and-lock"
parking garage is required to exercise reasonable care to avoid
damage to vehicle parked in his lot if the circumstances create
a reasonable expectation in the mind of the car owner that such
care will be undertaken.
Reasoning: The court distinguished this case from
previous park-and-lock cases based on the facts that there were
several garage employees around, who by admission of their supervisor,
were supposed to be watching the area and acting as a "kind
of security". This admission, that security was a major
concern, led the court to believe that it was reasonable for
the AA to conclude that his car would receive some protection
from the presence of these employees.
2. Shamrock Hilton Hotel v. Caranas （1972）； pg.
122, briefed 9/12/94
Facts: Wife AA left her purse at the table in
the dining room at the Hilton. Upon discovering the purse, the
bus boy took it to the cashier according to hotel instructions.
Thereafter, the cashier handed the purse over to a man claiming
to be the husband BB. The next morning, AA's notified the hotel
of the loss and claimed the purse contained $13,000 worth of
jewels. AA's filed suit for negligence, and won $11,000 plus
interests and costs at the trial court. BB appealed.
Issue: Was there a bailment created by the cashier
although she may have had no intention of establishing one？
Holding: Yes. If a commercial enterprise which
caters to the public holds "lost-and-found" items
as a normal course of business, then they create an implied
bailment for any items that they recover on their property which
were misplaced by their owners.
Reasoning: The court reasoned that there was a
constructive bailment because the AA, if she knew that she had
misplaced the purse, she would have reasonably expected the
finder to hold and protect it for her until she could reclaim
it. Further, they said that the bailment was for mutual benefit
of both parties. The hotel derives a benefit of return business
for those who they return lost property to.
Dissent: The dissent argued that no bailment was
created because there was no intention to create a bailment
（bad argument）。 He further said that even if there were a bailment
for the purse and the normal expected contents of a purse, there
was no bailment for the jewels, which he doubted were there
in the first place.
Notes: 1. In Ampco Auto Parks, Inc. v. Williams,
a commercial auto park was held not to be a bailee of the contents
of a car trunk, concededly bailed, if those contents were not
reasonably to be found in a trunk （e.g. a Pre-Columbian Bell
from 1,000 BC.）。 In Samples v. Geary, a coat check at a dancing
school was found not to be a bailee for a fur piece wrapped
inside a checked coat, because there was no knowledge of the
fur, therefore no contract （Bull-oney）。 In Peet v. Roth Hotel
Co., a person who accepted possession of a ring for delivery
to another was a bailee, even though he did not know the ring
was valuable. 2. In Cowen v. Pressprich, a securities broker
became an involuntary bailee when a bond was delivered to his
office by mistake. He gave it to a person he thought was the
messenger of the true owner. He was found not to be liable for
conversion because he was trying lawfully to return it to the
owner, and divest himself of any implied bailment. Had he retained
it to try to protect it for the owner, he would then have been
a voluntary bailee and absolutely liable for protecting it.
3.5 Gift
赠与（gift）是某人将自愿将其财产转让给另一个人,并不附加任何条件和补偿。（A gift
is a present transfer of property by one person to another without
any consideration or compensation）
要使赠与行为有效,须符合以下三个要素（Three requirements）:第一,必须正式移交或音乐会所赠与的财产；第二,必须是赠与人的主观意愿；每三,必须被接受。
There are three requirements for the making of a valid gift:
（1） there must be a delivery from the donor to the donee； （2）
the donor must possess an intent to make a present gift； and
（3） the donee must accept the gift.
赠与可以分为两类:
生前赠与（Gifts inter vivos）,
临终赠与（Gifts causa mortis）
所谓生前赠与是指赠与人在其正常生活期间所进行的赠与行为。这种赠与是不可撤销的。而临终赠与是指赠与人在处于生命垂危时所进行的赠与,这种赠与在一定情况是可以改变的。
Gifts inter vivos-An inter vivos gift is a gift made during
the donor's life when the donor is not under any threat of impeding
death. An inter vivos gift, once made is irrevocable
Gifts causa mortis- a gift causa mortis is a gift made in contemplation
of immediately approaching death. A gift causa mortis is revoked
if the donor recovers from the illness that prompted the gift
交付是赠与的有效要素之一。交付可以分为以下三类:
实际交付（Actual physical Delivery）这个好理解。
推定交付Constructive delivery）- it is handing over the means of
obtaining possession such as the keys to a car for example.
However when the articles or goods are present and able to then
physical delivery must occur.
象征性交付（Symbolic delivery ）- handing over something that is symbolic
to the property given such as a writing. Notice that once again
if physical delivery can occur it must occur.
下面是关于交付的几个例子,请读者仔细阅读:
Examples of different types of delivery
1. A finds O's mislaid ring. O say to A it's yours. A keeps
it. O changes her mind. Who has title O or A？ A has better right
to the property because the elements are sought. The delivery
aspect is met because A has possession.
2. A finds O's mislaid ring. A returns it to O. O looks at it
and says to A: "Its your." O takes it to have it downsized
for A. O is killed. Who has title, O or A？ O has better title
because A did not have possession of it. The transfer of the
ring existed before the intent to give was made. A gave the
ring back to O so manual transfer was not made.
3. A finds O's mislaid ring. A returns it to O. O says I promise
to leave it to you when I die. O is killed. Who has title, O
or A. Without a will, future intent does not qualify. It has
to be present intent to kill
4. O gives savings bank book to B. （Bank permits book holders
to withdraw funds）。 O dies before B takes money out. Who has
title to the savings account？ B because we have constructive
delivery
5. O gives B check. O dies before B can cash it. Is check good？
Holding- no gift until check paid because donor retains dominion
and control of funds.
6. O gives A written instrument: I give you my wristwatch. O
reneges. This is valid gift because symbolic delivery is satisfied.
7. O hands A the leash to his pit-bull saying "Here take
this" O walks away. Has title to the pit bull passed to
A.？ It is unclear it "here takes this" was an intent
to give, and if A accepted the gift.
3.7 Bona Fide Purchasers
关于Bona Fide Purchasers（善意购买人）,先来看两个例子:
1. You bought a used casebook in a Campus Bookstore for $5.00.
Next week in a class, a student sitting behind you told you
that the book belongs to her. About a month ago, she said, she
left the book in the library and when she returned the book
had disappeared.
Do you have to return the book？
2. Mr. Owen, a resident in Illinois, owned a Porsche
911. The car was stolen on April 10, 1999 from the garage of
his office by someone （unidentified）。 The vehicle was insured
by Illinois Insurance Co., and it paid Owen $33,000 on its Auto
Insurance Policy. Boyer bought a new car in June. In August
10, the car came into the hands of Davis Motors, a used car
dealer in Detroit, through a person who identified himself as
Owen （purchase price was $30, 000）。 On June 10 in 2000, Dr.
Boyer, purchased the car for $35, 000 from Davis Motors. In
December 2000, the police seized the car as a stolen property
which was eventually returned to Boyer. March 15, 2001, Illinois
Insurance filed a law suit against Boyer claiming the car belongs
to the company. Is Boyer entitled to the car？ Is the conclusion
same if the law suit was brought on April 15, 2001？
传统的普通法（common law）规则认为"没有人可以转让不属于他所有的商品",然而,,该原则已被众多的例外弄得千疮百孔,除了盗窃物等少数情形,其他所有的情形都有例外,从而最终确立了善意购买人原则（Bona
Fide Purchasers）:不知标的物的权利瑕疵并且为之付出了对价（consideration）,善意购买人对于所购财产享有对抗一切先在物主的所有权（A
bona fide purchaser is one who does not know of the seller's
wrong doing but has a good faith belief that the seller has
title, and in addition pays valuable consideration.）。《美国统一商法典》第2403条后段的规定即体现了这一原则:"……具有可撤销的所有权的人有权向按价购货的善意第三人转让所有权。当货物是以买卖交易的形式交付时,购货人有权取得其所有权。"依该条规定,只要购买人出于善意,即不知卖方有诈,以为卖方是对货物具有完全所有权的购买人,则不论卖方的货物从何而来,即便卖方是偷来的,善意买受人也可以即时取得所有权。1979年《英国货物买卖法》的规定:如果货物是在公开市场上购买的,根据市场惯例,只要买方是善意的,没有注意到卖方的权利瑕疵,就可以获得货物完全的权利。也体现了对善意购买人原则的确认。
参与英文资料:
美国统一商法典关于善意购买人（Bona Fide Purchasers）的详细规定:
Uniform Commercial Code Article 2 Sales
§ 2-403. Power to Transfer； Good Faith Purchase of Goods； "Entrusting".
（1） A purchaser of goods acquires all title which his transferor
had or had power to transfer except that a purchaser of a limited
interest acquires rights only to the extent of the interest
purchased. A person with voidable title has power to transfer
a good title to a good faith purchaser for value. When goods
have been delivered under a transaction of purchase the purchaser
has such power even though
（a） the transferor was deceived as to the identity of the purchaser,
or
（b） the delivery was in exchange for a check which is later
dishonored, or
（c） it was agreed that the transaction was to be a "cash
sale", or
（d） the delivery was procured through fraud punishable as larcenous
under the criminal law.
（2） Any entrusting of possession of goods to a merchant who
deals in goods of that kind gives him power to transfer all
rights 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 have been such as to be larcenous under
the criminal law.
（4） The rights of other purchasers of goods and of lien creditors
are governed by the Articles on Secured Transactions （Article
9） and Documents of Title （Article 7）。
（4） The rights of other purchasers of goods and of lien creditors
are governed by the Articles on Secured Transactions （Article
9）, Bulk Sales （Article 6） and Documents of Title （Article 7）。
《《《《本内容结束》》》》》》
英文法律文书简明教程（一）缩写
一、缩写 Abbreviations
规则1、
在正式写作中，应当避免使用缩写，除非有下述规则2、规则3和规则4的情形。
In formal writing, one should not use abbreviations, except as indicated in rules 2, 3, and 4 below.
例如：
Incorrect: The U.S. Supreme Court held that the defendant's rights had been violated.
Correct: The United States Supreme Court held that the defendant's rights had been violated.
Incorrect: Professor Jonas mentioned several cities that have domestic-partnership ordinances, e.g., New York and San Francisco.
Correct: Professor Jonas mentioned several cities that have domestic-partnership ordinances, including New York and San Francisco.
Incorrect: The Court announced its decision in the case on Oct. 12, 1994.
Correct: The Court announced its decision in the case on October 12, 1994.
规则2、
如果一个缩写的应用已经非常普遍，在一般用法中已经取代了全称，则可以使用缩写；但使用此缩写时不应该使用表示缩写的英文句号（.）。
When an abbreviation has become so common that it has supplanted the full name in common usage, one may use the abbreviation; however, one should do so without the use of periods.
例如：
Incorrect: The N.A.A.C.P. was the subject of a profile on C.B.S. last week.
Correct: The NAACP was the subject of a profile on CBS last week.
（注： NAACP abbr.National Association for the Advancement of Colored People (美国)全国有色人种协进会，CBS abbr. （美国）哥伦比亚广播公司(Columbia Broadcasting System)）
However: The defendant in the case is R.J. Reynolds Industries, Inc.
请注意，在上面的例子中，字母R和J后面的句号（.）应当保留，因为这个缩写所代表的含义并非广为人知。一般来说，这样的缩写应当使用全称；但是在上面的例子中不能用全称，因为缩写R.J.是公司注册名称中使用的。
Notice that in the preceding example, the points after "R" and "J" should be left in, because the meaning of the abbreviation is not sufficiently well known to most readers. Ordinarily, one would replace such an abbreviation with the full terms; however, one can not do so in this case because the legal corporate name involved includes the abbreviation.
规则3、
当使用legal citation时，一定要按照Bluebook（见译注）的要求来缩写。但在行文中提及法院时，不应用缩写。
When writing legal citations, always use the abbreviations required by the Bluebook. However, when referring to a court in text, do not abbreviate. For example:
例如：
Incorrect: The Ill. Supreme Court required the return of the child to his birth mother. Smithson v. Bettaglia, 59 Illinois 2d 73, 180 Northeast Reporter 2d 754 (1994).
Correct: The Illinois Supreme Court required the return of the child to his birth mother. Smithson v. Bettaglia, 59 Ill. 2d 73, 180 N.E.2d 754 (1994).
规则4、
当行文中涉及的公司在其注册名称中含有一个或多个缩写时，如 R.J. Reynolds Industries, Inc.，应当保留缩写；不要把缩写所代表的全称全部拼出，除非公司的注册名称中已经全部拼出，如Exxon Shipping Company。这条规则适用于所有的公司名称中，包括Co.， Corp.， Inc.和 Ltd.。
When referring to a corporate entity that has one or more abbreviations as part of its legal name, such as R.J. Reynolds Industries, Inc., leave the abbreviations in the name. Do not spell out the abbreviation unless the corporation itself spells it out, which some do (for example, Exxon Shipping Company). This rule applies to all of the various forms of corporate designations, including Co., Corp., Inc., and Ltd.
例如：
Incorrect: McDermott International, Incorporated
Correct: McDermott International, Inc.
参照：
Cross References: The Bluebook: A Uniform System of Citation § 6 (15th ed. 1991).
译注：The Bluebook: A Uniform System of Citation
是Harvard Law Review联合 Columbia Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal一起出版的关于如何引用法律文件和期刊的权威工具书，为法律学者和实务工作者所广泛使用。
缩略符－见译注
当一个学生向教授提交书面作业或向律师事务所提交书面资料时， 没有什么比错误的使用或不使用缩略符造成的负面印象更严重了。因此，掌握这些简单，却常常容易混淆的规则非常重要。
在四种情形下使用或不使用缩略符容易引起混淆，分别是（1）复数词（2）单数所有格（3）复数所有格和（4）it's和its的缩写形式（Contractions，see cross reference hereunder）与所有格。是否使用所有格，要先问问自己是否涉及领有关系。如果是领有关系，名词或带词就要采取所有格。
规则1、Plain plural words do not require the use of an apostrophe. For example:
Incorrect: The lawyer's could generally be found after hours at the Hanover Street Bar and Grill. (The apostrophe here incorrectly indicates a singular possessive.)
Incorrect: The lawyers' could generally be found after hours at the Hanover Street Bar and Grill. (The apostrophe here incorrectly indicates a plural possessive.)
Correct: The lawyers could generally be found after hours at the Hanover Street Bar and Grill. (The lack of an apostrophe here correctly indicates a plural, nonpossessive term.)
规则2、In singular possessive terms, place the apostrophe before the "s." This will indicate ownership by one person or thing. For example:
Incorrect: Our schools collection included an original set of Blackstone's Commentaries.
Incorrect: Our schools' collection included an original set of Blackstone's Commentaries.
Correct: Our school's collection included an original set of Blackstone's Commentaries.
规则3、In plural possessive terms, place the apostrophe after the "s." This will indicate to the reader that more than one person or thing owns the thing possessed.
Incorrect: The students success was largely attributable to their hard work and dedication.
Incorrect: The student's success was largely attributable to their hard work and dedication.
Correct: The students' success was largely attributable to their hard work and dedication.
规则4、How to distinguish "its" and "it's."
"It's" is the contraction of "it is," as in the sentence, "It's best not to question the judge's knowledge of the laws of evidence in open court." In formal writing, however, one generally should not use contractions. Thus, the better formulation of the sentence above would be: "It is best not to question the judge's knowledge of the laws of evidence in open court."
"Its" is a possessive, as in the sentence, "The truck lost its muffler as it entered the pothole-laden Kennedy Expressway." This is the rare case in which a possessive term does not take an apostrophe.
规则5、A less-often faced decision involves the use of apostrophes where multiple owners are named. Where two or more people own one item jointly, place an apostrophe before an "s" only after the second-named person. For example:
Incorrect: Bill's and Mary's car was a lemon, leading them to seek rescission of their contract under the state's lemon law.
Correct: Bill and Mary's car was a lemon, leading them to seek rescission of their contract under the state's lemon law.
However, when two or more people own two or more items separately, each individual's name should take the possessive form. For example:
Incorrect: Joanne and Todd's cars were bought from the same dealer; both proved useless, even though Joanne's car was an import and Todd's was a domestic model.
Correct: Joanne's and Todd's cars were bought from the same dealer; both proved useless, even though Joanne's car was an import and Todd's was a domestic model.
规则6、When creating the possessive form of words ending in "s," use only an apostrophe after the "s" if the word ends in a "z" sound. However, if the word ends in an "s" sound use an apostrophe and an additional "s" to create the possessive.
Less Desirable: He was a student in Professor Adams's class.
More Desirable: He was a student in Professor Adams' class.
However: He was a student in Professor Weiss's class.
Cross Reference: Contractions 缩约词，通过省略或结合一个较长短语中的某些音素而形成的词，如从 will not来的 won't，或短语如从 of the clock来的 o'clock。
译注：apostrophe
省略符号, 撇号(')
冠词
冠词指“a”，“an”，和“the”。学生常在句子中漏掉冠词，以为这样“高效”或“听起来象律师（说得话）”。但是，漏掉冠词往往写出劣质文章。需要用冠词的时候就用冠词，律师也不能例外。亚洲国家学生在写作时应注意正确使用冠词，因为许多亚洲国家语言没有冠词。
1 避免律师的习惯干扰。漏掉冠词并不能使句子更简洁，反而使句子更难懂。不要试图把句子写得“象律师写的那样”。文章最好写得正式，而不是“象律师那样”。
Incorrect: Police officer moved evidence to avoid disappearance from crime scene.
Correct: The police office moved the evidence to avoid its disappearance from the crime scene.
Incorrect: Abrams, officer on duty at time of crime, testified against defendant, Joanna Stone.
Correct: Abrams, the officer on duty at the time of the crime, testified against the defendant, Joanna Stone.
2 发元音和发辅音。如何选用“a”和“an”。原则很简单：以辅音开头的名词前用a，以元音开头的名词前用“an”。在第三点中将讨论稍难些的问题－如何处理元音发音和辅音发音。
Incorrect: The judge had an gavel, and he used it frequently.
Correct: The judge had a gavel, and he used it frequently.
Incorrect: The judge had a elephant in her courtroom, though nobody noticed.
Correct: The judge had an elephant in her courtroom, though nobody noticed.
3 元音发音开头和辅音发音开头。
有时一个单词以辅音开头，但听起来象以元音开头（即，发元音），这些单词在选用冠词时应被看作是以元音开头。这些单词多以“h”打头（例如hour和 heir），但是如果该辅音发声（发声的辅音），就应象其它辅音一样选用冠词“a”。从而，单词“heir”以元音发音开头，单词“hotel”以辅音发音开头。
下面举个辅音开头发元音选用冠词的例子。
Incorrect: The judge gave the lawyers a hour's recess to review the new evidence.
Correct: The judge gave the lawyers an hour's recess to review the new evidence.
下面举个辅音开头发辅音选用冠词的例子。
Incorrect: The professor was well known for posing an hypothetical question when students suggested that one rule would suffice for all situations.
Correct: The professor was well known for posing a hypothetical question when students suggested that one rule would suffice for all situations.
括号
1 在引语中插入你自己选用的单词时，该单词使用括号。
Incorrect: The professor said that "Frankfurter evolved from liberal to conservative while on the Supreme Court (and) Blackmun evolved from conservative to liberal."
Correct: The professor said that "Frankfurter evolved from liberal to conservative while on the Supreme Court Blackmun evolved from conservative to liberal."
2 为表示你在引语中改变了一个单词的一部分时，该部分使用括号。此类情形通常发生在为合并引语和你自己的句子时，要把大写字母变小写字母，反之亦然。
引语:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII.
不正确合并:
The Eighth Amendment provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII.
正确合并:
The Eighth Amendment provides that "xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII.
Clauses - Restrictive and Nonrestrictive
限制性从句与非限制性从句
1. Restrictive and Nonrestrictive Clauses Defined. Restrictive clauses limit the possible meaning of a preceding subject. Nonrestrictive clauses tell you something about a preceding subject, but they do not limit, or restrict, the meaning of that subject. Compare the following examples.
含义。限制性从句限定前面主句的含义，而非限制性从句仅讲述与前面的主句相关的内容，但并不对前面的主句进行限定。比较下面的例句：
Correct Restrictive Use:
The suspect in the lineup who has red hair committed the crime.
Note how the subject "suspect" in this sentence is restricted in two ways: we know that this suspect is both in the lineup and has red hair. As a result, we know that the other suspects, who are not in the lineup, could not have committed the crime. Moreover, of those suspects in the lineup, we know that the one suspect in the lineup with red hair committed the crime. If there were more than one suspect in the lineup with red hair, the above usage would be incorrect because it implies a different meaning.
请注意：上句中的主语suspect以两种方式进行了限定：在排队和有红色头发。因此，我们可以知道，其它不在队列中的嫌疑犯没有参与犯罪。而且，在嫌疑犯队列中，只有有红色头发的才参与了犯罪。如果队列中不止一人有红色头发，则上述例句的用法是不正确的，因为它存有其它的含义。
Correct Nonrestrictive Use:
The suspect in the lineup, who owns a red car, committed the crime.
In this example, the restrictive clause "in the lineup" tells us that of all possible suspects in the world, the one who committed the crime is in the lineup. However, while the nonrestrictive clause "who owns a red car" tells us something about the suspect, it does not foreclose the possibility that there are several different suspects in the lineup with red cars. The car color may tell us something useful, but it does not restrict us to only one possibility.
在例句中，限制语in the lineup告诉我们，在所有可能的嫌疑犯中，参与犯罪的嫌疑犯在队列中。尽管非限制性从句who owns a red car告诉了我们关于嫌疑犯的若干资料，但是并不能排除在队列中其它嫌疑犯也拥有red car。车身的颜色可能告诉我们一些有用的东西，但无法限定到仅仅一种可能。
2. When choosing between "that" and "which," use "that" to introduce a restrictive clause and "which" to introduce a nonrestrictive clause. Although some writers use "which" to introduce a restrictive clause, the traditional practice is to use "that" to introduce a restrictive clause and "which" to introduce a nonrestrictive clause. When writing a restrictive clause, do not place a comma before "that." When writing a nonrestrictive clause, do place a comma before "which."
尽管有些作者用which来引入限制性从句，但是传统用法还是用that来引入限制性从句，而用which来引入非限制性从句。使用限制性从句时，that 前一定不要用逗号，而使用非限制性从句时，which 前一定要用逗号。
Correct Restrictive Use:
The store honored the complaints that were less than 60 days old.
Correct Nonrestrictive Use:
The store honored the complaints, which were less than 60 days old.
These sentences have different meanings as well as different punctuation. In the restrictive sentence, the store honored only those complaints less than 60 days old, but not those over 60 days old. In the nonrestrictive sentence, the store honored all the complaints, all of which were less than 60 days old.
这两个句子含义不同，所用标点也不同。在限制性从句中，商店只处理不超过60天的投诉；而在非限制性从句中，商店处理了所有的投诉，这些投诉都是60天内发生的。
3. Place proper punctuation around nonrestrictive clauses, but do not place punctuation around restrictive clauses. When a nonrestrictive clause appears in the middle of a sentence, place commas around it. When a nonrestrictive clause appears at the end of a sentence, place a comma before it and a period after it. Do not punctuate restrictive clauses.
在非限制性从句中可以使用标点，但在限制性从句中则不可以使用。当非限制性成分在句子中间出现时，应当在它前面和后面加逗号。当非限制性成分出现在句末时，在它前面加逗号，后面加句号。不要在限制性从句中使用标点。
Correct Punctuation of Nonrestrictive Clause:
The 1964 Ford Mustang, which propelled Lee Iacocca to the top of the automobile industry, is now considered a classic.
Correct Punctuation of Nonrestrictive Clause:
The credit card is in my wallet, which you can find in the kitchen drawer.
Correct Punctuation of Restrictive Clause:
The boat that sailed on October 25 is the one to which we referred in the contract.
Colloquialisms
口语（化表达）
法律文书是一种正式的文书。其首要目的就是清楚而有效地沟通观点。偶尔运用修辞性的华丽词藻有助于强调观点，尤其在论述性文书中。但是千万不要因用了华丽的表达而丢掉或混淆了重要的法律观点。观点重要性远大于表达形式。同样，写作不要象说话一样。英语口语中我们经常用生动的或是口语化的短语，这在书面英语中是不合时宜的。写作中一定不要用这些短语，要代之以准确的语言。
Incorrect: On arriving at the scene of the crime, the officer tore up the stairs in search of the big enchilada.
Correct: On arriving at the scene of the crime, the officer ran up the stairs in search of the leader of the crime syndicate.
前述例子中，口语短语"tore up the stairs" 和"big enchilada"有多个意思。所以，越准确语言越恰当。
Incorrect: On December 12, 1992, Ms. DeWitt kicked the bucket.
Also Incorrect: On December 12, 1992, Ms. DeWitt passed on to her heavenly reward.
Better: Ms. DeWitt died on December 12, 1992.
前述例子中，第一个不恰当的句子含俚语，通常这在法律文书或其它正式文书中都不合时宜。第二个不恰当的例子避免了俚语，但走到另一个极端，有失简洁。
冒号
1 一句话中在“such as " "including" 和 "for example" 短语后不用冒号。因为这些短语已提示读者接下来会举一些例子，没有必要再用冒号引出例子了，那样只是多此一举。
Incorrect: She had all the skills of a great litigator, such as: writing ability, perseverance, persuasiveness, and obsessive attention to detail.
Correct: She had all the skills of a great litigator, such as writing ability, perseverance, persuasiveness, and obsessive attention to detail.
2 介词（例如“in”） 或副词后不用冒号列举。
Incorrect: The new law student excelled in: Criminal Law, Legal Writing, and Torts.
Correct: The new law student excelled in Criminal Law, Legal Writing, and Torts.
Incorrect: The litigation tactics most disliked by the judge are: discriminatory use of peremptory challenges, indiscriminate use of document requests during discovery, and the introduction of frivolous motions as delaying tactics.
Correct: The litigation tactics most disliked by the judge are discriminatory use of peremptory challenges, indiscriminate use of document requests during discovery, and the introduction of frivolous motions as delaying tactics.
3如果不违反上述规则 1或者规则2 ，则用冒号引出例子或解释。
Correct Use to Introduce a List:
The store carried all the items the new judge needed: gavels, judicial robes, case reporters, and computers.
Correct Use as an Explanatory Tool:
The restaurant served the type of food most preferred by lawyers: red meat.
4 当重申一个观点时，用冒号。如果跟在冒号后的是一个完整句子，则开头字母大写，反之，跟在冒号后的是从句或短语，则开头字母不大写。
Correct: The writing was brilliant: It was clear, concise, and analytically correct.
Incorrect: The writing was brilliant: clear, concise, and analytically correct.
Commas
逗号的用法是正确运用标点过程中最复杂，最容易产生误解的问题之一。在一些情形中，存在着被广泛接受的用法。然而在另一些情况下，却有不只一种用法。学生常常认为，担心标点的用法有点可笑：毕竟，法律分析才是最重要的呀。但是，假如一个人申请一份工作或向上级提交书面报告，没有什么会比忽视标点运用基本规则更容易给人留下负面印象的了。毕竟，一位高级律师是决不会愿意去更正一位初级律师的逗号的用法的。
Comma usage is one of the most complex, and most misunderstood, questions of proper punctuation. In some cases there are widely accepted rules governing comma usage; in a few cases, there is more than one acceptable approach. Students often think it's silly to worry about things such as punctuation: after all, isn't the legal analysis what really counts? However, when one applies for a job or submits written work to a supervisor, nothing will leave a more negative impression than ignorance of the basic rules of punctuation. After all, the last thing a senior attorney wants to do is correct a junior attorney's comma usage.
1.
当你用一个短语或从属分句开始一个句子，并随后引入一个独立分句时，用逗号分隔。
When you begin a sentence with a phrase or dependent clause to introduce a subsequent independent clause, separate the clauses with a comma.
Incorrect: After many years as a criminal prosecutor she ascended to the bench.
Correct: After many years as a criminal prosecutor, she ascended to the bench.
Incorrect: Because the witness was unavailable the judge allowed the introduction of the testimony pursuant to an exception to the hearsay rule.
Correct: Because the witness was unavailable, the judge allowed the introduction of the testimony pursuant to an exception to the hearsay rule.
2. 用逗号分隔非限制性从句，但不要用逗号分隔非限制性从句。
非限制性从句告诉你关于句子主语的某些事情，但并不对其含义进行限定；相反，限制性从句对主语的含义进行限定。
Use commas to set off a nonrestrictive clause in the middle of a sentence, but not to set off a restrictive clause. Nonrestrictive clauses tell you something about the subject of a sentence, but they do not limit, or restrict, the meaning. Restrictive clauses, on the other hand, limit the possible meaning of the subject.
ompare the following examples.
Correct Restrictive Use:
The suspect in the lineup who has red hair committed the crime.
Note how the subject "suspect" in this sentence is restricted in two ways: we know that this suspect is both in the lineup and has red hair. As a result, we know that the other suspects, who are not in the lineup, could not have committed the crime. Moreover, of those suspects in the lineup, we know that the one suspect in the lineup with red hair committed the crime. If there were more than one suspect in the lineup with red hair, the above usage would be incorrect because it implies a different meaning.
Correct Nonrestrictive Use:
The suspect in the lineup, who owns a red car, committed the crime.
In this example, the restrictive clause "in the lineup" tells us that of all possible suspects in the world, the one who committed the crime is in the lineup. However, while the nonrestrictive clause "who owns a red car" tells us something about the suspect, it does not foreclose the possibility that there are several different suspects in the lineup with red cars. The car color may tell us something useful, but it does not restrict us to only one possibility.
3.用两个逗号来分隔同位语或插入语。同位语是对它所跟随的名词进行描述的单词或短语，插入语告诉我们关于某个名词的一些事情，但对阐述该名词并不重要。
Use two commas to set off an appositive or an aside in the midst of a sentence. An appositive is a word or phrase that describes a noun it follows. An aside tells us something about the noun, but is not essential to defining the noun.
Correct Use with an Appositive:
The police chief, William A. Bendofsky, is an authority on the use of roadblocks to protect neighborhoods from drive-by shootings.
Correct Use with an Aside:
The pretrial phase of the litigation, like all pretrial work, lasted longer than the trial itself.
4. 用两个逗号，而不是一个，来分隔非限制性从句。
Use two commas, not one, to set off a nonrestrictive clause in the middle of a sentence.
Incorrect: The city, a polyglot of different races and religions provided many opportunities for cultural exchange.
Correct: The city, a polyglot of different races and religions, provided many opportunities for cultural exchange.
5.在过渡性的副词前加逗号。比较常用的副词有accordingly, furthermore, however, moreover, therefore, 和 thus。
Place a comma after a transitional word that introduces a sentence. The following are examples of commonly used transitional words: accordingly, furthermore, however, moreover, therefore, and thus.
Incorrect: Accordingly he granted the motion to dismiss.
Correct: Accordingly, he granted the motion to dismiss.
Incorrect: Moreover she convinced the judge that her client had been out of state at the time of the burglary.
Correct: Moreover, she convinced the judge that her client had been out of state at the time of the burglary.
6. 当用逗号来分隔列举的项目时，在名单的最后一个项目之前前的连词前面加逗号。有许多人并不这样做，虽然这种用法比较常见，但这种方式在某些情况下有可能会产生歧义。
When using commas to separate items in a list, place a comma before the conjunction that precedes the last separate item in the list, unless that last item is a compound term. Many people are taught not to place a comma before a conjunction preceding the last item in a list (such as, "red, white and blue"). However, while popular, this approach runs the risk of creating ambiguity in a number of situations. Consider the following.
Incorrect: The car was available in red, white, black and tan, and special-order colors.
上例中，如果车子有四种标准颜色可供选择，则逗号的用法不正确，因为这种用法使人以为车子还有一种复合颜色（black and tan）可供选择。但如果车子只有三种颜色可选，其中一种是复合颜色（black and tan），那么上述用法就是正确的。
If the car is available in four standard colors, then the above usage is incorrect, because it implies that black and tan is one, two-tone color option. However, if there are only three color options, one of which is black and tan, then the above usage is correct.
Correct: The car was available in red, white, black, and tan, and special-order colors.
上例中，放在连词and前的逗号使得读者很清楚，车子共有四种标准颜色的款式，避免了由于在连词and前不加逗号所产生的歧义。
The use of the comma before the first conjunction in this sentence makes it clear that there are four standard color options, avoiding the ambiguity created in the first example by the absence of a comma before "and tan."
7. 如果有两个形容词一起修饰一个名词时，使用逗号分隔这两个形容词。如果这两个形容词中的第一个形容词是用来修饰第二个形容词的，而不是修饰后面的名词，就不要用逗号分隔这两个形容词。
Use a comma to separate two adjectives that modify the same noun, but do not use a comma if the first of two adjectives modifies the second adjective, but not the noun. In considering this choice, ask yourself whether the two adjectives can be reversed. If they can, as in the first example below, separate them with a comma. If they can not, as in the second example below, do not use a comma.
Incorrect: The only approach to the city was by a long old highway.
Correct: The only approach to the city was by a long, old highway.
Incorrect: The suspect drove a light, blue truck.
Correct: The suspect drove a light blue truck.
In the second example, use of a comma would be incorrect, since "light" modifies "blue," and is therefore not part of a series of commas that modify the word "truck." However, on the off chance that the writer intended to write that the truck was light in weight as well as blue in color, then the first use would be correct. Thus, you can change the meaning of a sentence —— sometimes inadvertently —— by your use of commas.
8. 不要用逗号来替代引导词that。
Do not use a comma to replace the word "that."
Incorrect: The court decided, there is no constitutional right to a second appeal, except by means of a habeas petition.
Correct: The court decided that there is no constitutional right to a second appeal, except by means of a habeas petition.
Also Correct:
The court decided there is no constitutional right to a second appeal, except by means of a habeas petition.
In the second correct example, removing the word "that" from the sentence is acceptable because its absence does not confuse the reader. However, leave "that" in a sentence if removing it would create some doubt in the reader's mind concerning what the writer meant to convey.
9.不要用逗号分隔一个句子的并列谓语，除非不加逗号会令人费解或是并列谓语的第二部分需要强调。
As a general rule, do not use a comma to separate the parts of a double predicate, unless the sentence would be confusing without it, or the second part of the double predicate requires special emphasis. A double predicate exists where the sentence has one subject and two verbs related to that subject. (Please read rule 10 of this section as well.)
Incorrect: The customer finished his meal, and paid the check.
Correct: The customer finished his meal and paid the check.
使用逗号分隔并列谓语来强调的例子：
Correct Use of Comma to Create Emphasis:
The defendant had been employed as a cashier for twenty years, and never once was accused of stealing money from the register.
In the preceding example, the writer creates a greater emphasis on the defendant's innocence by setting off the second part of the double predicate with a comma. Without the comma, the second thought seems like an afterthought.
使用逗号分隔句子避免歧义的例子：
Correct Use of Comma to Avoid Confusion:
The judge ruled that suppression of the evidence was required because it had been obtained illegally, and ordered the defendant released from prison.
In this example, the writer avoids confusion by using a comma to introduce the second in the series of compound verbs; without the comma, one might not be sure whether the verb "ordered" related to the subject "it" or the subject "the judge." By contrast, in the sentence above about the restaurant customer, the comma is not needed, because it is a simple sentence.
10. 当用连词连接两个独立从句时，在连词前加逗号。连词包括"and," "but," "or," "nor," 和 "yet"。
When joining two independent clauses with a conjunction, place a comma before the conjunction. Conjunctions include the words "and," "but," "or," "nor," and "yet."
Incorrect: The customer ate every piece of the apple pie and the waitress brought another pie.
Correct: The customer ate every piece of the apple pie, and the waitress brought another pie.
In the incorrect example, the reader may at first think the customer ate the pie and the waitress. In the correct example, the comma before the conjunction tells the reader, "Stop, another independent clause with its own subject (the waitress) is about to begin."
11. 通常，在which前面加逗号，但不要在that前面加逗号。虽然有的作者习惯于用which来引入限制性从句，传统用法是用that来引入限制性从句，用which来引入非限制性从句。在引入限制性从句时，在that前不要加逗号，在引入非限制性从句时，在which前一定要加逗号。
Generally, use a comma before "which" but not before "that." Although some writers use "which" to introduce a restrictive clause, the traditional practice is to use "that" to introduce a restrictive clause and "which" to introduce a nonrestrictive clause. When writing a restrictive clause, do not place a comma before "that." When writing a nonrestrictive clause, do place a comma before "which."
Correct Restrictive Use:
The store honored the complaints that were less than 60 days old.
Correct Nonrestrictive Use:
The store honored the complaints, which were less than 60 days old.
These sentences have different meanings as well as different punctuation. In the restrictive sentence, the store honored only those complaints less than 60 days old, but not those over 60 days old. In the nonrestrictive sentence, the store honored all the complaints, all of which were less than 60 days old.
12. 在引号内加入逗号，不要在引号外面加，不论逗号是否是其所引用的引语的组成部分。一般的规则是，逗号，句号总是放在引号内，而其他标点，如问号，冒号，分号和感叹号都应该放在引号外面，除非他们原来就是所引用的引语的组成部分。
Place commas inside, not outside, quotation marks. Follow this practice whether or not the comma is part of the original quotation. The general rule is that commas and periods should be inside the quotation marks at all times, while all other forms of punctuation, such as question marks, colons, semicolons, and exclamation points, should be outside the quotation marks, unless they were contained in the original quotation.
Incorrect: The court held that "physical injury is not a required element of a sexual harassment claim", and the plaintiff went on to win her case.
Correct: The court held that "physical injury is not a required element of a sexual harassment claim," and the plaintiff went on to win her case.
13. 用两个逗号来分隔日期和地点。表述详细日期（年月日）时，或详细的地理位置（如国家，州，城市）时，在最后的项目前后加两个逗号。
Use two commas when setting off dates and places. When using a full date (month, date, year) or multi-part geographical designation (such as city and state or city and country), use two commas around the last part of the designation.
Incorrect: On June 28, 1974 Judge Hayes took her seat on the Supreme Court.
Correct: On June 28, 1974, Judge Hayes took her seat on the Supreme Court.
However: In June 1974 Judge Hayes took her seat on the Supreme Court.
Incorrect: Laredo, Texas was host for the 1994 World Rodeo Championship.
Correct: Laredo, Texas, was host for the 1994 World Rodeo Championship.
Incorrect: We arrived in Tokyo, Japan for the meeting of the G-7 leaders.
Correct: We arrived in Tokyo, Japan, for the meeting of the G-7 leaders.
参考：从属从句和短语；限制性从句和非限制性从句
Cross References: Dependent Clauses and Phrases; Clauses —— Restrictive and Nonrestrictive
Compound Adjectives
复合形容词
1. A compound adjective is formed when two or more adjectives work together to modify the same noun. These terms should be hyphenated to avoid confusion or ambiguity.
复合形容词由两个或两个以上的形容词组成用以修饰一个名词。组成复合形容词的每个形容词之间要用连字符连接以避免混淆和词不达意。
Incorrect: The black and blue mark suggested that he had been involved in an altercation.
Correct: The black-and-blue mark suggested that he had been involved in an altercation.
Incorrect: Her fifteen minute presentation proved decisive to the outcome of the case.
Correct: Her fifteen-minute presentation proved decisive to the outcome of the case.
2. However, combining an adverb (usually a word ending in "ly") and an adjective does not create a compound adjective. No hyphen is required because it is already clear that the adverb modifies the adjective rather than the subsequent noun.
但是，副词（通常以“ly”结尾）与形容词组合不能作为复合形容词使用，其间不需使用连字符，因为，显而易见，副词用以修饰形容词而非其后的名词。
Incorrect: The remarkably-hot day turned into a remarkably-long week.
Correct: The remarkably hot day turned into a remarkably long week.
3. Furthermore, you should not place a hyphen in a compound adjective if the adjectives are capitalized, such as when they are part of a title.
此外，如果组成复合形容词的形容词为大写形式，例如：该附和形容词为文章题目的一部分，则不需在其间加以连字符。
Correct: His book was entitled, "Gender Neutral Language in English Usage," and it revolutionized the way people think about sex roles.
However: His book on gender-neutral language revolutionized the way people think about sex roles.
Correct: The students were participants in Chicago-Kent's vaunted Legal Research and Writing Program.
Also Correct:
同样正确
The student decided to attend a school with a good legal-research-and-writing program. Note that in this example, the reference is to a type of program, rather than a specific program, and so the use of hyphens is proper.
1. Avoid using contractions in formal writing. A contraction is a combination of two words as one, such as "don't," "can't," and "isn't." The use of contractions is inappropriate in formal legal writing. Replace them with the two-word version of the contraction.
在正式写作中应避免使用缩写形式。 缩写即是将两个词合二为一，比如 "don't," "can't," 和"isn't"。在正式的法律文书中使用缩写形式是不规范的。
Incorrect: He can't guarantee that the defendant will appear because the defendant hasn't called him in several days.
Correct: He can not guarantee that the defendant will appear because the defendant has not called him in several days.
2. Remember: "It's" is the contraction of "it is." The term "its" is the singular possessive of "it." The term "it's," by contrast, is the contraction of "it is."
记住：“It's”是“it is”的缩写形式，而“its”是“it”的单数所有格形式。
Correct use as Possessive: 所有格的正确使用：
My '68 Mustang is on its last journey.
Correct use as Contraction: 缩写形式的正确使用：
It's a long way from Tipperary.
Cross References: Apostrophes, Possessives 参考：省略符号，所有格
