In the dog case the transfer of possession occurs at the time it is no longer a dog, but is indeed a corpse, if the contract with the Vet covers that aspect. Having had a dog euthenized once I recall there being a statement about disposition of the body. While the dog still lived OO continued to have an obligation to provide for its care and provided for that by arranging for end of life services. OO would not and did not abandon the dog, though there may be some merit to the argument that he planned to abandon the corpse. A refund for failure to perform contracted services of $250 is in order.

Since the Vet did not repair the corpse, but repaired the dog which was not yet abandoned, ownership would continue to belong to OO. As sweet as the gesture of repairing the dog was it was never her property.

recission as a remedy for the vet’s refusal to perform the procedure. is a very common approach.

As for the abortion hypo, there are a growing number of statutes and cases that make abortion or attempted abortion (before or after birth) a basis for termination of rights.

Interesting intersection, especially since when you look at the ipod in the trash, the answer is so clear.

Part of it is that the owner has an emotional connection to the pet that is violated by the pet not being dead, but somewhere else, the same as it is for a child that is delivered instead of aborted. Strange how the matter flips in some of those cases.

Been great to read this one, and to see it linked to by other blogs.

As a whole, the ConOp crowd seems to think custody should go to the vet. Just so you know how it came out when I posed this to my classes: the majority of one class agreed with the vet, and the other wanted to award custody to OO. Again, part of it seemed to be based on who valued the dog more, and whether the OO had the money to pay for the operation.

People tended to have a strong gut reaction about this one way or the other. My own “gut” was to prefer custody to the vet, but I was at dinner with others and we spent the rest of the night debating it.

CM: Excellent point that the Vet should have contacted OO and described what was happening; As for the King Solomon suggestion, that was something that occurred to me too – give Vet and OO some beef jerky and see where Trover goes…

As for KMB’s comparison to the abortion context, I did have a student from class ask me a similar question, which I told him I would need more time to think through (and now I have). I think there are significant differences between the old hypo and the new hypo based on constitutional right to choice; right to control one’s reproductive capabilities / genetic material (there’s a case from the Massachussetts SJC forbidding implantation of frozen embryos because the man didn’t want to become a father); end of life care vs. abortion.

But, KMB, you’re right, it calls into the question all of the posts saying that the Vet can do what she wants to “abandoned property” even though the contract is for euthanasia. Interesting.

“Mary” goes to see a doctor “Jim” at a clinic for a late-term abortion. After signing the authorization forms, Mary enters the operating room and is put under anesthetic. Jim delivers the baby and places it in a nursery in another room instead of aborting it. Mary wakes up and goes home, unaware. Jim takes the baby home and raises it himself. Later, Mary finds out that her son/daughter is still alive.

Questions:

What happens to the baby? What is the baby’s legal status? Who is the baby’s legal guardian under the law?

Does Mary have a claim to getting the baby back from Jim and raising it herself? What claim does she have against Jim for violating the terms of the ‘contract’? What claim does Jim have on the baby (if any)?

If Mary does get the baby back, does she have claim against the baby’s father for child support? Can the father use the (failed) abortion attempt in court to influence any support judgment against him?

If Jim keeps the baby, does he have claim for child support against either Mary or the baby’s father?

How far does the ‘contract’ signed in the clinic extend? Does Mary have a right to a ‘dead baby’?

What are the fundamental similarities and differences between this situation and the hypothetical above with Trover (or the watch and the IPod)?

My sense that where there’s an implied condition, there’s no abandonment until the condition is fulfilled. I take that from reading various definitions of “abandonment” that emphasize that the renunciation must be absolute. Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property § 9 says, for example:

As sometimes stated, the intent to relinquish property permanently is an essential element to its abandonment. Otherwise stated, property is formally abandoned only if it has been renounced utterly.On the other hand, ignorance, inadvertence, or unawareness militate against a finding of abandonment.”

Commonwealth v. Wetmore, 301 Pa. Super. 370 (1982) doesn’t really support my position, but it’s a great case that discusses this issue. After his son committed suicide with a shotgun, a father asked the defendant (at that time the local chief of police) to dispose of or destroy the shotgun. He did so, but not for a year — and wrote the father a letter in the interim falsely claiming to have disposed of it. His conviction for larceny was overturned, on the ground that there can be no theft of abandoned property. The dissent had this to say:

In this respect, the facts are not analogous to the throwing away of garbage. Rather, they are similar to the situation in which a desk is to be delivered to a charity or where a rabid dog is delivered to a game warden for destruction. In these situations, a relinquishment of the rights of ownership does not occur until the desk has been delivered or the dog has been put to sleep. Where an item of property has been delivered to another for purposes of destruction, there is no abandonment until the property has been destroyed. If the bailee does not destroy the property and keeps it for his own use, he can be prosecuted for theft by unlawful disposition.

Very interesting hypo — everyone I tell it to has a different reaction.

That’s interesting, James — have you got a case/treatise cite for a common law doctrine of conditional abandonment?

King Solomon wasnt a crit. I guess the Crits aren’t the only ones who think the law isn’t really about putting reasoning before judgments.

I think that a good reading of the intent of the original contract would be that the owner was exercising his right to destroy any intrinsic value the property had for anyone unless he could possess it himself. It was definitely the original owner’s right to do so. If he couldn’t maintain value in the property, he can decide that no future possessor/owner could benefit from that value, including the doctor.

That the propery was cute and adorable enough to cause the doctor to be sympathetic and perform an act of kindness is an intrinsic part of the value the original owner rightfully sought to destroy. (So, in fact, the owner *did* have the resources to cover the cost of the $7500 operation, because his property was cute enough to earn him a 100% discount:)

The original owner never sought to give to the doctor, or anyone but himself the property if it had any value left (except perhaps for occasional possessor who might have been permitted by the owner to throw a tennis ball at or near the property).

Trover goes back to the original owner. The property still had value, so the “lack of value” prerequisite to abandonment never happened.

If the doctor gets anything, I’d say $250 dollars, since he did perform on the contract to the extent that, if the property goes back to the original owner, his efforts are part of the outcome whereby nobody in the world, except for the original owner and his immediate friends and family, get to enjoy the cute piece of property.

That’s a very interesting point. I guess I’d say first that it’s not clear to what extent our expectations around end-of-life-care, etc. for a companion animal should be given legal import once the animal is surrendered.

Consider a nastier variation. The owner pays the vet $250 to euthanize the dog, but the vet does so negligently: the dog dies while suffering. (Or any number of more gruesome things we can imagine: the vet maliciously tortures the dog, the vet eats the dog after it’s killed, the vet harvests the dog’s organs for other dogs, etc.) The owner learns of this conduct by sheer inadvertence (he goes to the same gym as the vet’s receptionist, say). Does the owner have any kind of claim against the vet?

I think most people would say “no” in this situation, although I could be wrong. If I am right, however, it suggests that the owner’s expectation as to end-of-life-care isn’t what’s driving the urge to make the vet liable in the Trover case, but rather the sense that the vet obtained an unfair gain.

Yet this sense seems inaccurate: presumably the market value of the treatment is $7,500, so presumably the vet spent $7,500 worth of labor, materials, etc. on fixing up the dog. The vet was willing (or able, yes) to do so when the owner was not.

(Although I confess, the King Solomon suggestion seems most compelling of all!)

The abandonment story also doesn’t explain, by itself, why the original owner can’t seek recission as a remedy for the vet’s refusal to perform the procedure. By making everything turn on the breach, it doesn’t distinguish the case in which the vet then performs the operation from the case in which she doesn’t.

Is the contract to perform a specific service or is the contract to make the problem go away?

I’m not sure where property thinking gets us exactly. The dog was probably abandoned since OO did not plan to bury the dog himself. While the law of bailments does imply that the Vet should keep Trover (the value of a live, healthy dog is obviously much greater than a dead one), the Vet acted in bad faith by treating and possessing a dog that wasn’t his, unless we go back to contract interpretation determining whether the Vet was merely to dispose of OO’s property or OO was just paying $250 to not have the problem anymore.

The best I can see OO getting is if he specifically wanted his dog to die and that was what the $250 was for, though I’m not sure how a court might calculate these damages, and, since it is a claim of equity I think a court would be hard pressed to order specific performance of the lethal injection (and the Vet could claim that this would result in economic waste, since he plugged in the $7500 in improvements). There are no reliance damages and I think any expectation damages resulting from the Vet’s nonperformance while still relieving OO of ownership are simply too uncertain to quantify.

My practical guess? A court is likely to throw up its hands and awards restitution of the $250 for services not performed. The Vet keeps the dog.

It does seem helpful to shift to something like the watch example, at least to check one’s thinking. (And the tacit homage to Descarte’s analogizing dogs to machines is fun.)

But perhaps the watch example is more useful as a contrast, rather than as a similar case. The comments in this thread suggest that people’s expectations around end-of-life care and health care for a companion animal are radically different from their expectations about watch repair. To the extent that the legal analysis incorporates the actors’ reasonable expectations, looking to the watch case may do more to show differences than similarities.

The watch store owner fishes the watch out of his trash can, puts the $7,500 worth of work in, and keeps the watch.

Would anyone think that the previous watch owner had any cause of action whatsoever here?

I think not. Now is there a meaningful difference between signing authorization to euthanize a dog and throwing out a watch? Perhaps because there’s some kind of privity of contract between the dog owner and the vet. But the measure of contract damages is expectation damages, it’s ordinarily wholly irrelevant whether or not the breaching party has extra profit. Here (assuming specific performance isn’t desired by anyone), I’d say there are no damages: the owner wanted the dog gone, and the dog is gone.

I fail to see how there are any other damages. Assuming (as others in the thread have) that the owner didn’t want the corpse back, and hence was abandoning the dog, there’s no conversion. And no damages = no contract claim. I can’t think of a tort claim like intentional infliction of emotional distress, because there’s no indication that the vet intended the owner to know. Owner SoL.

Assuming those terms make clear that an owener, by executing the agreement, gives up “ownership” of his or her animal (or at least its corpse), OO has no claim for return of Trover and is only entitled to, if anything, money damages for breach of the the contract to euthanize Trover.

However, if the terms of the agreement do not address disposal of Trover, or are ambiguous on the issue, OO should be given the option of adopting the improvements to Trover made by Vet, and “purchasing” those services he had previously declined. This result best restores OO to the position he was in prior to Vet’s breach.

p.s. The interplay of wealth and ownership you’re pushing is reminding me a bit of the debates over organ sales and ownership (e.g. Moore v Regents) — interesting because it hints that perhaps the concerns you are raising with this hypo are somehow analogous to the property/persona issues raised by that case.

p.s.s. Ben> “The conclusion – Trover goes home with Original – comes first. Rationales come second.” If we’re lawyers, rationales come first, conclusions come second. (Ignoring the Crits, of course.)

Unfortunately the the former owners heirs decide that they don’t want a dog and have Trover put down.

The vet writes a book about her experience and appears on Oprah.