Gale Encyclopedia Of American Law 3Rd Edition Volume 7 P50 ppsx

adopted in some form by many states and
promulgated by the Commission on Uniform
State Laws, also sets forth the following basic
elements for the crime of perjury: (1) a false
statement is made under oath or equivalent
affirmation during a judicial proceeding; (2) the
statement must be material or relevant to
the proceeding; and (3) the witness must have
the
SPECIFIC INTENT to deceive.
The punishment for perjury in most states,
and under federal law, is the imposition of a
fine, imprisonment, or both. Federal law also
imposes sentencing enhancements when the
court determines that a
DEFENDANT has falsely
testified on her own behalf and is convicted.
Under the Federal Sentencing Guidelines, the
court is required to automatically increase the
defendant’s sentence.
Two federal statutes govern the crime of
perjury in federal proceedings. Title 18 U.S.C.A.
§ 1621 codifies the
COMMON LAW of perjury and
consists of the elements listed above. In 1970,
the scope of section 1621 was expanded by the
enactment of 18 U.S.C.A. § 1623. Section 1623
changes the definition of intent from willfully
offering false testimony to merely having
knowledge that the testimony is false. In
addition, it adds to the definition of perjury to

include the witness’s use of information,
including any book, paper, document, record,
recording, or other material she knows contains
a false material declaration, and includes
proceedings that are ancillary to any court,
such as affidavits and depositions, and
GRAND
JURY
proceedings. Section 1623 also contains a
retraction defense. If, during the proceeding in
which the false statement was made, the person
admits to the falsity of the statement before it is
evident that the falsity has been or will be
exposed, and as long as the falsity does not
affect the proceeding substantially, prosecution
will be barred under section 1623.
Commentators believe that the existence of
these two federal statutes actually frustrates the
goals of Congress to encourage truthful state-
ments. The reasoning behind this concern is
that when a retrac tion exists, prosecutors may
charge a witness with perjury under section
1621 and when a retraction does not exist, the
witness may be charged under section 1623.
Two variations of perjury are
SUBORNATION
OF PERJURY
and false swearing; in many states
these two variations are separate offenses.
Subornation of perjury is a crime in which the

defendant does not actually testify falsely but
instead induces, persuades, instigates, or in
some way procures another witness to commit
perjury. False swearing is a false statement made
under oath but not made during an official
proceeding. Some states have created a separate
offense for false swear ing, while others have
enacted perjury statutes to include this type of
false statement. These crimes also may be
punished by the imposition of a fine, imprison-
ment, or both.
The
IMPEACHMENT of President BILL CLINTON
in 1998 took place in part due to allegations of
perjury against him. In particular, President
Clinton was accused of committing perjury
before a grand jury sitting in connection with an
investigation being conducted by
KENNETH STARR
of the Office of INDEPENDENT COUNSEL. Clinton
was likewise accused of perjury in connection
with the Paula Jones case, in which Jones, a
former Arkansas state employee, sued him for
SEXUAL HARASSMENT. The Senate acquitted Clin-
ton on the charge of perjury as a cause to
remove him f rom office. However, the Arkansas
federal district court judge in Arkansas ci ted
Clinton for civil
CONTEMPT and fined him
$90,000 for not telling the truth in connection

with the underlying sexual harassment suit filed
by Paul Jones. On the day before leaving office
in 2001, Clinton agreed to a five-year suspen-
sion of his Arka nsas law license as part of a deal
made with Starr’s successor, Robert Fisk. By
agreeing to the suspension Clinton avoid ed
prosecution of criminal charges for his perjury.
FURTHER READINGS
Aycock, George W., III. 1993. “Nothing But the Truth: A
Solution to the Current Inadequacies of the Federal
Perjury Statutes.” Valparaiso Law Review 28.
Curriden, Mark. 1995. “The Lies Have It.” ABA Journal 81.
Feinstein, Ami L. 1993. “United States v. Dunnigan and
Sentence Enhancements for Perjury: Constitutional
Perhaps, but Unnecessary in Fact.” American Criminal
Law Review 31.
Posner, Richard A. 2000. An Affair of State: The Investigation,
Impeachment, and Trial of President Clinton. Cambridge,
Mass.: Harvard University Press.
v
PERKINS, FRANCES
At a time when few women achieved prominence
in national politics, Frances Perkins distin-
guished herself as a public official, a respec ted
labor and industry expert, and an adviser to the
president of the United States. When Perkins was
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
478 PERKINS, FRANCES
named secretary of labor by President FRANKLIN D.
ROOSEVELT in 1933, she became the first woman in

U.S. history to hold a cabinet post. Perkins used
her position to help launch the sweeping social
and economic reforms of the
NEW DEAL.
Perkins was born April 10, 1880, in Boston,
and raised in Worcester, Massachusetts. After
graduating from Worcester Classical High
School, Perkins attended Mount Holyoke Col-
lege, where she studied physics and chemistry
and was class president. As a senior at Mount
Holyoke, Perkins was influenced by Jacob A.
Riis’s 1890 book How the Other Half Lives and
by a speech given by Florence Kelley, the general
secretary of the National Consumers League.
Perkins’s growing awarene ss of the plight of
underprivileged U.S. citizens would lead to her
life’s work as a labor activist. After graduating
from Mount Holyoke in 1902, Perkins pursued
further studies in economics and sociology at
the University of Pennsylvania and Columbia
University. She earned a master’s degree from
Columbia in 1910.
After graduate school, Perkins briefly taught
biology and physics in a school in Lake Forest,
Illinois. In her off-hours, she volunteered at
Jane Addams’s Hull House, in nearby Chicago,
and at other settlement houses. There, Perkins
witnessed the poverty and wretched working
conditions endured by thousands of U.S.
citizens. Determined to help improve the plight

of workers, she returned to New York City to
work as a lobbyist with her mentor, Kelley, at
the New York Consumers League.
Perkins’s task was formidable. Throughout
the early twentieth century, U.S. businesses were
unregulated: workers in sweatshops worked
long hours for low pay in unsafe working
conditions. There were no
BUILDING CODES to
ensure the employees’ safety, no regular inspec-
tions of equipment and machinery, and no limit
to the number of hours employees could work.
Children routinely were employed in factories,
mills, and mines under the most miserable
conditions. Some women worked 19 hours per
day with their child ren by their side.
An industrial tragedy heightened Perkins’s
resolve to force changes in the workplace. On
March 25, 1911, a fire broke out at the Triangle
Shirtwaist Company, in New York City. Perkins
happened to be in the neighborhood and
watched as employees trapped on the top three
floors of the burning ten-story building jumped
from windows to their death. The door to the
only stairway in the building had been locked by
employers, to halt break-ins. One hundred
Frances Perkins 1880–1965
❖
1880 Born,
Boston,

Mass.
◆
1910 Earned M.A. from Columbia University
◆
1890 How the Other Half Lives,
by Jacob A. Riis, published
◆
1902 Graduated from
Mount Holyoke College
◆
1918 Appointed to the
New York State
Industrial Commission
1914–18
World War I
1965 Died,
New York
City
1939–45
World War II
1950–53
Korean War
1961–73
Vietnam War
▼▼
▼▼
19001900
18751875
19251925
19501950

19751975
❖
◆
1911 Witnessed fire at Triangle Shirtwaist Company in New York
1933 First woman appointed to a
cabinet position when FDR named her
secretary of labor (served until 1945)
◆◆
1935 Social Security Act passed into law
◆
1946–52
Served on
the U.S.
Civil Service
Commission
1938 Fair
Labor
Standards
Act passed
Frances Perkins.
LIBRARY OF CONGRESS.
WE ALL TAKE REFUGE
IN THE OPTIMISM
WHICH IS TYPICAL OF
THIS GREAT CREATIVE
NATION
.EVERY
SITUATION HAS
FOUND US
UNPREPARED

.
—FRANCES PERKINS
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
PERKINS, FRANCES 479
workers perished inside the building, and 47
jumped or fell to their death. The owners of the
company were later absolved of criminal
negligence for the disaster and collected
$64,925 in property damage insuran ce.
In the fire’s aftermath, the New York State
Factory Commission was created, with Perkins
named as chief investigator. She also became a
member of the Committee on Safety of the City
of New York and lobbied hard for legislation to
make the workplace safer. She toured the state
with Alfred E. Smith and
ROBERT F. WAGNER and
documented the deplorable conditions faced by
workers. An exhaustive investigation led to new
laws to protect the labor force.
A major success for Perkins was the passage
of a bill by the New York Legislature to limit the
workweek to 54 hours for women and children.
The bill was vigorously opposed by the employers
of the 400,000 female factory workers through-
out the state. While
LOBBYING for the bill, Perkins
became acquainted with Roosevelt, who was a
New York state senator. Although Roosevelt’s
support of the 54-hour bill was lukewarm,

Perkins developed a professional relationship
with him that grew stronger as Roosevelt’s
views on labor and government began to mirror
her own.
In 1913 Perkins married Paul Caldwell
Wilson and rejected prevailing social conven-
tion by retaining her maiden name for profes-
sional purposes. In 1918 she was appointed to
the New York State Industrial Commission.
Perkins’s work with Roosevelt in New York
led to a position in the federal government.
When Roosevelt was elected president in 1932,
he asked Perkins to become secretary of labor.
Although she argued that a female trade
unionist should be nominated for the post,
she eventually accepted the position. Perkins
became the only cabinet member to serve
during all four of Roosevelt’s terms of office.
When Roosevelt took office, the country
was in the midst of the Great Depression. About
a third of the nation’s workforce was unem-
ployed. As labor secretary, Perkins helped shape
the
SOCIAL SECURITY ACT (42 U.S.C.A. § 301
et seq.), a key component of Roosevelt’s New
Deal. Passed by the U.S. Congress in 1935, the
act allowed qualified workers in commerce and
industry to collect
OLD-AGE, SURVIVORS, AND
DISABILITY INSURANCE

benefits. The new program
required employers and employees to make
contributions to a federal
PENSION fund for aged
and DISABLED PERSONS. In this way, workers and
their families were financially protected in the
event of unemployment, old age, or the death of
a wage earner. Although critics likened the plan
to
SOCIALISM, SOCIAL SECURITY became a successful
federal entitlement program .
Perkins also helped develop the
FAIR LABOR
STANDARDS ACT
of 1938 (29 U.S.C.A. § 201 et
seq.), which limited the number of hours
employees could work for
MINIMUM WAGE. The
law also placed restrictions on child labor.
It prohibited children under 16 years of age
from working in most jobs, and made hazard-
ous occupations unavailable to workers under
18 years of age. The Wage and Hour Division
of the
LABOR DEPARTMENT was also established
by the act.
After Roosevelt’s death in 1945, Perkins
served briefly in the administration of President
HARRY S. TRUMAN. She left Truman’s cabinet to
serve on the U.S. Civil Service Commission

from 1946 to 1952. Perkins then taught courses
at Cornell University’s School of Industrial and
Labor Relations. She died in New York City on
May 14, 1965, at the age of 85.
FURTHER READINGS
Pasachoff, Naomi. 1999. Frances Perkins: Champion of the
New Deal. New York: Oxford Univ. Press.
Pirro, Jeanine Ferris. 1999. “Reforming the Urban Work-
place: The Legacy of Frances Perkins.” Fordham Urban
Law Journal 26 (May).
Whitney, Sharon, and Tom Raynor. 1986. Women in Politics.
New York: Franklin Watts.
CROSS REFERENCES
Child Labor Laws; Labor Law.
PERMISSIVE COUNTERCLAIM
A claim by a defendant opposing the claim of the
plaintiff and seeking some relief from the plaintiff
for the defendant.
Once a plaintiff sues a defendant in a civil
action, the defendant has the right to assert a
legal claim of her own against the plaintiff. This
is known as a counterclaim. A counterclaim
makes assertions that the defendant could have
made in a lawsuit if the plaintiff had not already
begun an action. A counterclaim is distinct
from a mere defense, which seeks only to defeat
the plaintiff’s lawsuit, in that it seeks a form of
relief. There are two types of counterclaims:
compulsory counterclaims and permissive
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION

480 PERMISSIVE COUNTERCLAIM
counterclaims. Both are governed in federal
court by rule 13 of the Federal Rules of CIVIL
PROCEDURE
. The rules in state courts are similar.
The compulsory counterclaim arises from the
same transaction or occurrence that forms the
basis of the plaintiff’ssuit.Forexample,acar
accident between two drivers leads to a personal
injury lawsuit, but the defendant asserts in a
compulsory counterclaim that the plaintiff actu-
ally owes him damages for injuries. A compulsory
counterclaim generally must be part of the initial
answer to the plaintiff’s action and cannot be
made later in the suit or in a separate lawsuit.
By contrast, the permissive counterclaim
arises from an event unrelated to the matter on
which the plaintiff’s suit is based. For example,
John Smith breaks his leg while visiting the
home of Jane Doe. Smith sues Doe, alleging that
she negligently left her child’s roller skate on her
front porch. In a permissive counterclaim, Doe
asserts that Smith owes her money. The court
will rule separately on plaintiff Smith’s and
defendant Doe’s respective claims; if both
claims are permitted to proceed, Smith v. Doe
will involve the two parties’ respective allega-
tions of
NEGLIGENCE and a bad debt.
Counterclaims are usually valid only if it is

possible to make the same claim by starting a
lawsuit. Thus, in the example of Smith and Doe,
Doe can only make her permissive counterclaim
if the
STATUTE OF LIMITATIONS on collection of the
debt has not expired. Permissive counterclaims
need not be made in the initial
PLEADING; they
can be made at a later time or even in another
lawsuit. This flexibility may help the defendant’s
legal strategy: She can wait and sue in a different
court, in order to have another judge hear the
case or to avoid arguing the merits of separate
claims before the same jury.
PERPETRATOR
A term commonly used by law enforcement
officers to designate a person who actually
commits a crime.
PERPETUATING TESTIMONY
The procedure permitted by federal and state
discovery rules for preserving the attestation of a
witness that might otherwise be lost prior to the
trial in which it is intended to be used.
The usual method of perpetuating testi-
mony is by taking a deposition. It is usually
allowed when a witness is aged and infirm or is
about to leave the state.
PERPETUATION OF EVIDENCE
The procedure employed to assure that proof will
be available for possible use at a later trial.

The police, for example, can deposit a
murder weapon with the court, prior to the
day set for trial of the accused, for purposes of
perpetuation of evidence.
PERPETUITIES
See RULE AGAINST PERPETUITIES.
PERQUISITES
Fringe benefits or other incidental profits or
benefits accompanying an office or position.
The abbreviation perks is used in reference
to extraordinary benefits afforded to business
executives, such as country club memberships
or the free use of
AUTOMOBILES. Perquisites can
be subject to taxation, depending on a host of
factors.
In 200 9 executive compensation continued
to be a controversial subject as federal pay czar
Kenneth Feinberg explored ways to rein in the
extent of, and require the disclosure of,
perquisites provided to executives of corpora-
tions that received taxpayer assistance from the
Troubled Asset Relief Program (TARP).
FURTHER READING
Internal Revenue Service. “Publication 15-B - Main Content.”
Available online at />p15b/ar02.html#en_US_publink1000101743 (accessed
October 13, 2009).
PERSON
In general usage, a human being; by statute,
however, the term can include firms, labor

organizations, partnerships, associations, corpor a-
tions, legal representatives, trustees, trustees in
BANKRUPTCY, or receivers.
A corporation is a “person” for purposes of
the constitutional guarantees of
EQUAL PROTEC-
TION OF LAWS
and DUE PROCESS OF LAW.
Foreign governments otherwise eligible to
sue in United States courts are “persons”
entitled to institute a suit for
TREBLE DAMAGES
for alleged antitrust violations under the
CLAYTON ACT (15 U.S.C.A. § 12 et seq.).
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
PERSON 481
Illegitimate children are “persons” within the
meaning of the Equal Protection Clause of the
FOURTEENTH AMENDMENT to the U.S. Constitution.
The phrase interested person refers to heirs,
devisees, children, spouses, creditors, benefici-
aries, and any others having a
PROPERTY RIGHT in,
or a claim against, a trust estate or the estate of a
decedent, ward, or protected person. It also refers
to personal representatives and to fiduciaries.
PERSONAL ACTIONS
Lawsuits initiated in order, among other things, to
recover damages for some injury to a plaintiff’s
personal right or property, for breach of contract,

for money owed on a debt, or for the recovery of a
specific item of
PERSONAL PROPERTY.
At COMMON LAW, personal actions comprised
any of the three categories of
FORMS OF ACTION,the
other two being real actions and mixed actions.
Personal actions generally involved suits arising
out of torts or contract disputes (e.g., to collect
debts or compel other owed payment). The right
to bring personal actions was an innovation in a
day when the only useful property was land.
There were few consumer goods (“chattels”)and
little money in ancient England. From the
ACCESSION of the Norman kings in 1066, the royal
right to supervise ownership and possession of
land was seldom questioned. Only when the
security of land ownership was seen to depend on
the peace of individual persons were personal
actions like debt,
DETINUE,andTRESPASS permitted.
FURTHER READING
Committee on Continuing Legal Education of the Virginia
Bar Foundation. 1988. Personal Actions Other Than for
Bodily Harm. Foundation Press.
PERSONAL INJURY
Any violation of an individual’s right, other than
his or her rights in property.
The term personal injury is not confined to
physical injuries, although

NEGLIGENCE cases
usually do involve bodily injuries.
The term may also refer to the invasion of
personal rights, including causing
MENTAL AN-
GUISH
and FALSE IMPRISONMENT.
CROSS REFERENCE
Tort Law.
PERSONAL JURISDICTION
The power of a court to hear and determine a
lawsuit involving a defendant by virtue of the
defendant’s having some contact with the place
where the court is located.
Personal jurisdiction, also known as
IN
PERSONAM
(against the person) jurisdiction, gives
a court the authority to mak e decisions binding
on the persons involved in a civil case. Eve ry
state has personal jurisdiction over persons
within its territory. Conversely, no state can
exercise personal jurisdiction and authority over
persons outside its territory unless the persons
have manifested some contact with the state.
The authority of the court to issue orders to
persons present within the territory comes from
the sovereign power of the government. The
court’s authority allows it to reach all residents
of a state, including those who are outside

the state for a short period and out-of-state
residents who enter the state even briefly.
Deciding whether an individual is within the
personal jurisdiction of a court is not difficult
to determine. Difficulty arises when courts have
to decide whether corporations are subject to
personal jurisdiction. Corporations have a leg al
existence and a legal identity but not a tangible
existence. They are subject to lawsuits involvi ng
tort and contract. As corporations became
national economic entities, the courts of a state
had difficulty finding personal jurisdiction if the
corporation was not located within that state.
Courts established that a corporation is
always subject to the jurisdiction of the courts in
the state where it was incorporated. States also
require corporations to file written consents to
personal jurisdiction before they can conduct
business within the state. Other states require
that either the corporation designate an agent to
accept legal process (the legal documents
initiating a lawsuit) in the state or that the state
attorney general be authorized to accept process
for all out-of-state corporations doing business
within the state.
In 1945 the U.S.
SUPREME COURT modernized
personal jurisdiction requirements when it
announced the “minimum contacts” test in
International Shoe Co. v. Washington, 326 U.S.

310, 66 S. Ct. 154, 90 L. Ed. 95. The court held
that courts could constitutionally exercise
jurisdiction over a nonresident
DEFENDANT if
the defendant had sufficient contacts with the
state such that forcing the person to litigate in
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
482 PERSONAL ACTIONS
that forum did not offend “traditional notions
of fair play and substantial justice.” Because
of the ease of modern communication and
transportation, it is usually not unfair to require
a party to defend itself in a state in which it
conducts business activity.
The threshold of minimum contacts varies.
Where the action arises out of or is related to
the defendant’s contacts with the state, the
quantity of contacts necessary to establish
personal jurisdiction may be truly minimal. In
such cases, the nature and quality of the contact
are the determining factors. In the case of a
nonresident motorist who causes an injury in
the forum state (the state of the court asserting
jurisdiction), the interest of the state in provid-
ing a forum for its residents and regulating its
highways, coupled with the defendant’s having
purposefully entered the state, permits the state
to fairly assert personal jurisdiction.
A corporation or individual not physically
present in a state may invoke personal jurisdic-

tion by making a single contact with the state by
telephone, mail, or facsimile transmission. In
Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 122 8,
2 L. Ed. 2d 1283 (1958), the court ruled that
even a single transaction can trigger personal
jurisdiction when the defendant purposely
avails itself of the privilege of conducting
activities with the forum state and invokes the
benefits and protection of state law.
States quickly took advantage of Interna-
tional Shoe by enacting “long-arm statutes.”
These statutes allow the state to reach out and
obtain jurisd iction over anyone who is not
present in the state but who transacts business
within the state, commits a tort within the
state, commits a tort outside the state that
causes injury within the state, or owns, uses, or
possesses real property within the state.
Personal jurisdiction in the federal courts is
governed by rule 4 of the Federal Rules of
CIVIL
PROCEDURE
. Rule 4 directs each federal district
court to follow the law on personal jurisdiction
that is in force in the
STATE COURTS where the
federal court is located. Federal courts may use
state long-arm statutes to reach defendants
beyond the territory of their normal authority.
With cases that can only be brought in federal

court, such as lawsuits involving federal
SECURI-
TIES
and antitrust laws, federal courts may
exercise personal jurisdiction over a defendant
no matter where the defendant is found.
When a person chooses to challenge per-
sonal jurisdiction, he or she must take care in
appearing before the court in the forum state. If
the defendant makes a general appearance, the
court will take this to be an unqualified
submission to the personal jurisdiction of the
court. The defendant waives the right to raise
any jurisdictional defects.
To prevent this from happening, a defendant
must request a special appearance before the
court. A special appearance is made for the
limited purpose of challenging the sufficiency of
the
SERVICE OF PROCESS or the personal jurisdiction
of the court. If any other issues are raised, the
proceeding becomes a general appearance. The
court must then determine whether it has
jurisdiction over the defendant. If the defendant
is found to be within the personal jurisdiction of
the court, the issue may be appealed. Some states
permit an immediate appeal, whereas others
make the defendant raise the issue after the case
has been heard on its merits in the trial court.
Courts and commentators have struggled

with the issue of personal jurisd iction in cases
involving the Internet. Web sites typically fall
into one of three categories. First, some Web
sites are clearly used for transacting busine ss
over the Internet through repeated transmission
of files of information and formation of
contracts. The activitie s of these websites are
sufficient to establish minimum contacts. Sec-
ond, some Web sites are merely passive and
used only fo r advertising purpose. The activities
of these passive Web sites are not enough to
establish minimum contacts. Third, interactive
Web sites allow for the exchange of informa-
tion. Whether the activities of an interactive
website is sufficient to establi sh minimum
contacts depends on the degree of interactivity.
FURTHER READINGS
Cebik, Sarah R. 1998. “‘A Riddle Wrapped in a Mystery
Inside an Enigma’: General Personal Jurisdiction and
Notions of Sovereignty.” Annual Survey of American
Law 1998 (winter): 1–48.
Nguyen, TiTi. 2004. “A Survey of Personal Jurisdiction
Based on Internet Activity: A Return to Tradition.”
Berkeley Technology Law Journal. 519–541.
Redish, Martin H. 1998. “Of New Wine and Old Bottles:
Personal Jurisdiction, the Internet, and the Nature of
Constitutional Evolution.” Jurimetrics Journal of Law,
Science and Technology 38 (summer): 575–610.
CROSS REFERENCES
Civil Procedure; Federal Courts.

GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
PERSONAL JURISDICTION 483
PERSONAL PROPERTY
Everything that is the subject of ownership that
does not come under the denomination of real
property; any right or interest that an individual
has in movable things.
In general, the owner of personal property
has the exclusive right to possess, enjoy, and
dispose of a thing. This is especially true of
corporeal personal property, which refers to
physical items. Examples of corporeal personal
property include real CHATTEL; choses in action;
ice already formed, whether in the water or out;
rent, once it is paid to the lessor; the proceeds of
a
REAL ESTATE sale; timber severed from the land;
harvested crops; domestic animals; wild animals
and fish that have been reduced to possession;
removable fixtures; and supplies, equipment,
furniture, and similar items.
A second category of personal property
includes incorporeal personal property, which
includes something that has value but lacks a
physical substance. Examples of incorporeal
personal property include stocks, bonds,
PATENTS,
and copyrights.
Possession
Possession is a property interest under which an

individual is able to exercise power over
something to the exclusion of all others. It is a
basic
PROPERTY RIGHT that entitles the possessor
to: (1) the right to continue peaceful possession
against everyone except someone having a
superior right; (2) the right to recover a chattel
that has been wrongfully taken; and (3) the
right to recover damages against wrongdoers.
Possession requires a degree of actual
control over the object, coupled with the in tent
to possess and exclude others. The law recog-
nizes two basic types of possession: actual and
constructive.
Actual possession exists when an individual
knowingly has direct physical control over an
object at a given time. For example, an individual
wearing a particular piece of valuable jewelry has
actual possession of it. Constructive possession is
the power and intent of an individual to control
a particular item, even though it is not physically
in that person’s control. For example, when an
individual possesses the key to a bank safe
deposit box that contains a valuable piece of
jewelry that she owns, then the individual is in
constructive possession of the jewelry.
Possession of Animals
Animals FERAE NATURAE, or wild animals, are
those that cannot be completely domesticated.
A degree of force or skill is necessary to

maintain control over them. Gaining possession
is a means of obtaining title to, or ownership of,
wild animals.
An owner of land has the right to capture or
kill a wild animal on her property and upon
doing so, the animal is regarded as belonging to
that individual because she owns the soil. The
traditional legal principle has been that one who
tames a wild animal is regarded as its owner
provided it appears to exhibit animus revertendi,
or the intent to return to the owner’s domicile.
Conversely, when a captured wild animal
escapes and returns to its natural habitat
without any apparent intent to return to the
captor’s domicile, the captor forfeits all personal
property right and the anima l may be captured
by anyone.
Lost, Mislaid, and Abandoned Property
Personal property is considered to be lost if the
owner has involuntarily parted with it and is
ignorant of its location. Mislaid property is that
which an owner intentionally places somewhere
with the idea that he will eventually be able to
find it again but subsequently forgets where it
has been placed. Abandoned property is that to
which the owner has intentionally relinquished
all rights.
Lost or mislaid property continues to be
owned by the person who lost or mislaid it.
When one finds lost goods, the finder is entitled

to possession against everyone with the excep-
tion of the true owner.
The finder of lost articles on land belonging
to someone else is entitled to possession against
everyone but the true owner, unless the finder is
guilty of
TRESPASS. The finder of misplaced goods
has no right to their possession. The owner of
the place where an article is mislaid has a right
to the article against everyone but the true
owner. Abandoned property can be possessed
and owned by the first person who exercises
dominion over it with intent to claim it as his or
her own. In any event, between the finder of a
lost, mislaid, or abandoned article and the
owner of the place where it is found, the law
applies to whatever rule will most likely result in
the return of the article to its rightful owner.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
484 PERSONAL PROPERTY
Ordinarily, when articles are found by an
employee during and within the scope of his
employment, they are awarded to the employer
rather than to the employee-finder.
Treasure trove is any gold or silver in coin,
plate, or bullion hidden by an unknown owner
in the earth or other priv ate place for an
extended period. T he property is not consid-
ered treasure trove unless the identity of the
owner cannot be ascertained. Under early

COMMON LAW,thefinderofatreasuretrove
took title to it against everyone but the true
owner. This doctrin e was altered in England by
a statute granting title to the crown subject to
the claims of the true owner. The U.S. law
governing treasure trove has, for the most part,
been merged into the l aw governing lost
property. However, certain cases have held
that the old treasure trove law has not been
combined into the lost property statutes. In
some instances, the early common law of
England has been held to apply in the absence
of a statute governing treasure trove. Regard-
less of which principles are applied, in the
absence of contrary statutory provision the title
to treasure trove belongs to the finder against
all others with the exception of the true owner.
If there is a controversy as to ownership
between the true owner and the state, the
owner is entitled to treasure trove.
Confusion and Accession
Confusion and ACCESSION govern the acquisition
of, or loss of title to, personal property by virtue
of its being blended with, altered by, improved
by, or comming led with the property of others.
In confusion, the personal property of several
different owners is commingled so that it
cannot be separated and returned to its rightful
owners, but the property retains its original
characteristics. Any fungible (interchangeable)

goods can be the subject of confusion.
In accession, the personal property of on e
owner is physically integrated with the property
of another so that it becomes a constituent part
of it, losing any separate identity. Accession can
make the personal property of one owner
become a substantially more valuable chattel
as a result of the work of another person. This
transformation occurs when the personal prop-
erty becomes an entirely new chattel, such as
when grapes are made into wine or timber is
made into furniture.
Subject to the doctrine of accession, personal
property can become real property through its
transformation into a fixture. A fixture is a
movable item that was originally personal pro-
perty but has become attached to, and associated
with, the land and is considered a part of the
real property.
Bailments
A BAI LMENT is the rightful, temporary possession
of goods by an individual other than the true
owner. The individual who entrusts his prop-
erty into the hands of another is called the
BAILOR; the person who holds such property is
the
BAILEE. Ordinarily a bailment is effected for a
designated purpose upon which the parties have
agreed.
The word bailment is derived from the

French term bailler, “to deliver.” It is ordinarily
regarded as a contractual relationship since the
bailor and bailee—either expressly or implic-
itly—bind themselves to act according to specific
terms. The bailee receives only control or pos-
session of the property, and the bailor retains the
ownership interests therein. While a bailment
exists, the bailee has an interest in the property
that is superior to all others, including the bailor,
unless she violates some term of the agreement.
When the purpose for which the property has
been delivered has been accomplished, the
property is returned to the bailor or otherwise
disposed of, according to his instructions.
A bailment differs from a sale, which is an
intentional transfer of ownership of personal
property in exchange for something of value,
because a bailment involves only a transfer of
possession or custody not of ownership. For
example, a bailment is created when a person
leaves his or her car and car keys at a parking
garage. The parking garage receives a fee to hold
the car in its custody.
Gifts
A gift is a voluntary transfer of personalty from
one individual to another without compensation
or consideration, or the exchange of something
of value. There are two main categories of gifts:
INTER VIVOS gifts, a voluntary, unconditional
transfer of property between two living persons

without consideration; and
CAUSA MORTIS,one
that is made by a donor in anticipation of
imminent death. The three requirements of a
valid gift are delivery, donative intent, and
acceptance.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
PERSONAL PROPERTY 485
Bona Fide Purchasers
A basic common-law principle is that an
individual cannot pass a better title than she
has, and a buyer can acquire no better tit le than
that of the seller. A thief does not have title in
stolen goods, so a person who purchases from
the thief does not acquire title.
A bona fide purchaser is an individual who
has bought property for value with no notice of
any defects in the seller’s title. If a seller indicates
to a buyer that she has ownership or the
authority to sell a particular item, the seller is
prevented (estopped) from denying such repre-
sentations if the buyer resells the property to a
bona fide purchaser for value without notice of
the true owner’s rights. At common law, such an
ESTOPPEL did not apply when an owner brought
an item for services or repairs to a dealer in that
type of goods and the dealer wrongfully sold the
chattel. The bona fide purchaser, however, is
now protected under such circumstances by the
UNIFORM COMMERCIAL CODE (UCC).

A buyer who induces a sale through
fraudulent representations acquires a voidable
title from the seller. A voidable title is one that
may be vacated by the seller upon discovery of
the buyer’s
FRAUD, at his option. The seller has
the authority to transfer a good title to a bona
fide purchaser for value without notice of the
outstanding equity. The voidable title rule is
only applicable in situations where the own er is
induced to part with title, not merely with
possession, as a result of fraud or deception.
FURTHER READINGS
Burke, Barlow. 2003. Personal Property in a Nutshell. 3d ed.
St. Paul, MN: West.
Huss, Rebecca J. 2002. “Valuing Man’s and Woman’s Best
Friend: The Moral and Legal Status of Companion
Animals.” Marquette Law Review 86 (fall).
Jordan, Robert L., William D. Warren, and Steven D. Walt.
2000. Secured Transactions in Personal Property. 5th ed.
New York: Foundation Press.
Miller, Kathleen. 1995. Fair Share Divorce for Women.
Bellevue, WA: Miller Advisors.
Picker, Randal C. 2009. Security Interests in Personal
Property: Cases, Problems, and Materials. 4th ed. New
York: Foundation Press.
Sykas, Abigail J. 2001. “Waste Not, Want Not: Can the
Public Policy Doctrine Prohibit the Destruction of
Property by Testamentary Direction?” Vermont Law
Review 25 (summer).

CROSS REFERENCES
Accession; Bailment; Chattel; Intellectual Property;
Possession.
PERSONAL REPRESENTATIVE
A person who manages the financial affairs of
another person who is unable to do so.
A personal representative is one kind of
fiduciary—an individual whom another has
trusted to manage her property and money.
When a person dies, a personal representative
generally is required to settle the decedent’s
financial affairs. In some instances, a living
person may need a personal representative;
for example, a minor might need a personal
representative to make legal decisions for her.
Personal representatives can be appointed by a
court, nominated by will, or selected by the
person involved. Their duties are performed
under the supervision of probate courts, which
are governed by state law.
When someone dies leaving property, a
personal representative is required to adminis-
ter the decedent’s estate, which involves resolv-
ing any debts and handling the distribution of
property. The jurisdiction, powers, and func-
tions connected with administerin g the dece-
dent’s estate are usually entrusted to special
tribunals, known as probate, surrogate, or
orphans’ courts. These courts supervise the
actions of the personal representative.

The choice of a personal representative
depends on whether the decedent left a will,
the legal document instructing how his estate is
to be divided. If the will names a personal
representative, that person is called an executor
(male or female) or executrix (female). The court
will accept the representative unless he does not
meet statutory qualifications. These qualifica-
tions vary from state to state but largely concern
such factors as age and
CONFLICT OF INTEREST.If
there is no legally valid will, the decedent is said
to have died
INTESTATE.Insuchcases,thecourt
appoints a personal representative for the
decedent’s estate. The court-appointed represen-
tative is called an administrator (male or female)
or administratrix (female).
In special instances, courts appoint one of
three types of administrators. They are appointed
when (1) an executor cannot or will not serve
(administrator cum testamento annexo); (2) a
prior executor or administrator has not com-
pleted the estate (administrator de bonis non); or
(3) an interim administrator (special administra-
tor), given restricted powers over the estate, is
needed until a proper
LEGAL REPRESENTATIVE can
be found.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION

486 PERSONAL REPRESENTATIVE
Once approved by the court, personal
representatives receive official sanction to fulfill
their duties. Executors receive documents
called letters testamentary—administrators re-
ceive letters of administration—authorizing
the representative to handle the legal affairs
of a decedent. Throughout the process of
administering an estate, all personal represen-
tatives serve as
OFFICERS OF THE COURT.They
derive their authority from the court and thus
serve at the court’s pleasure. Their authority
can be revoked on various grounds, ranging
from neglect to incompetence. Primarily, they
mustactonbehalfofallpartiesandall
interests in the estate. They o we the benefici-
aries an absolute duty of loyalty, or
FIDUCIARY
duty, to administer the estate in their best
interest.
The personal representatives’ primary duties
are to settle and distribute the estate. This
complicated task may require the assistance of
an attorney or a
TRUST COMPANY, so-called
coexecutors. The personal representative’s first
task is to collect and preserve the assets of the
estate. The personal representative also oversees
the appraisal of the estate’s assets, where

necessary. The personal representative must
pay the estate’s creditors, as well as any
ESTATE
AND GIFT TAXES
due under federal law. Finally, the
representative sees to the distribution of the
remaining estate among the decedent’s bene-
ficiaries. If there are no beneficiaries, the state
usually receives the property.
The representative must act impartially,
diligently, and fairly when re presenting anyone
having an interest in the assets of the decedent.
Subject to some exceptions, the representative
may not disclose facts or knowledge about
property that is in the representative’s posses-
sion or the affairs of those being represented.
Exceptions include cases involving consent
of the principal, responses to legal process,
and other cases where disclosure is required
by law.
FURTHER READINGS
Graves, Herman S. 2000. “Estate Administrative Expenses
and the Personal Representative.” Colorado Lawyer 29
(September).
Hughes, Theodore E., and David Klein. 2007. The Executor’s
Handbook: A Step-by-Step Guide to Settling an Estate for
Executors, Administrators, and Beneficiaries. New York:
Facts on File.
Krier, Kenneth D. 1991. “The Attorney as Personal Represen-
tative or Trustee.” Florida Bar Journal 65 (Janurary).

Ross, Bruce S., and Henry T. Moore, Jr. 1986–1996. California
Practice Guide: Probate. Encino, CA: The Rutter Group.
CROSS REFERENCE
Executors and Administrators; Probate.
PERSONAL SERVICE
The actual delivery of process to the individual to
whom it is directed or to someone authorized to
receive it on his or her behalf.
SERVICE OF PROCESS is the delivery of legal
notice to a party in a case. Any party who is
being sued is entitled to advance notice of the
suit. Notice consists of a copy of the complaint
and a summons to appear in court. If a party
does not receive notice of a lawsuit, the court
will dismiss the case.
Personal service of the complaint and
summons is a form of actual notice. Actual
notice occurs when the summons and com-
plaint are delivered personally to the respon-
dent. The two other basic forms of process
service are
SUBSTITUTED SERVICE and constructive
service. Substituted service is personal delivery
to the residence of the respondent or notice
given to an agent of the respondent. Construc-
tive service is notice delivere d through publica-
tion in a newspaper.
If a party cannot be reached in person,
substituted service may be made by mailing the
summons and complaint by certifie d or first-

class mail. If a party cannot be found, notice
may be served by publication in a newspaper.
The U.S.
SUPREME COURT has ruled that service
of process should be reasonably calculated t o
apprise interested parties of the pendency of
the action and afford them an opportunity to be
heard. The reasonableness of the notice must be
considered in light of all the circumstances. For
example, if a party receiving notice lives in an
apartment building with many children living in
the building, one notice left on the front door of
the apartment might not be sufficient because it
is possible that the children could take the papers
(Greene v. Lindsey, 456 U.S. 444, 102 S. Ct. 1874,
72 L. Ed. 2d 249 [ 1982]).
PERSONALTY
Goods; chat tels; articles; movable property,
whether animate or inanimate.
CROSS REFERENCE
Personal Prop erty.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
PERSONALTY 487