法律英语：12 Constructive Delivery

by Michael W. Flynn
 
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.  
 
Today’s topic is constructive³ delivery. Maria wrote:
 
Last week, I signed up with a rental⁴ agency to help me find an apartment. I found a great place and told the rental agent that I wanted it. The agency approved me, and gave me the lease to sign, which I did. I gave the lease back to the agency to get the owner to sign. The owner signed it and gave it back to the rental agency, but the agency never gave it back to me. The bottom of the lease said that the lease was not effective until the signed lease was “delivered” to me by the owner, and that the owner could still find other renters between the time he signed it and “delivered” it.
 
After he signed the lease, the owner found a family friend that wanted to live in the apartment, and told the agency not to give the lease to me. Now, he will not honor my lease because the rental agency never gave the signed lease back to me. The owner says that he never “delivered” the lease because he only gave it back to the rental agency, but not to me. Is this fair?
 
Maria has effectively asked whether the act of handing the signed lease back to the rental agency constitutes “delivery” under the law. The short answer to your question is that what the owner is doing is not only unfair, but violates the terms of the contract. When the owner signed the lease and gave it back to the rental agent for the purpose of giving it back to you, the owner delivered the lease and the contract became binding⁵ on both of you.
 
Delivery of documents under the law can be either actual or constructive. Actual delivery is easy to spot; it occurs when someone physically⁶ hands you a document with the intent to hand it over. So, if the owner had signed the lease and handed it back to Maria, then actual delivery would have taken place, and the lease would have become immediately effective.
 
But under the law of most states, delivery is not confined to physically handing something over. Rather, delivery is a question of intent. Constructive delivery occurs when a person shows a present intent to unconditionally⁷ divest⁹ himself of his property, and to relinquish¹⁰ all control over it. When the owner signed the document and gave it to the rental agency with the intent that the agency would pass it along to Maria, the owner constructively¹¹ delivered the leasehold¹² interest to Maria. After the lease was constructively delivered, the condition that the lease would only become effective upon “delivery” was fulfilled. The moment the owner handed that lease to the agency, the lease became effective. Maria’s lease is valid¹³, and the owner is stuck with Maria as a tenant¹⁴ for as long as the lease term runs.
 
Constructive delivery is an important concept in land transfers. To effectively convey a grant of land, aka real property, most states require that the deed must be “delivered.” But, delivery in this context can also be actual or constructive, and the intent of the parties will control.
 
This issue often comes up in disputes over wills. Imagine the following scenario¹⁵: Dad wants his ranch¹⁶ to go to his daughter, but wants to live there until he dies. So, Dad executes a deed in favor of the daughter and puts it in his safety deposit box with instructions to give the deed to the daughter when he dies. After he dies, the family finds a will that gives all his property to the local church. The question becomes whether Dad delivered the deed to the daughter when he executed it, but only put it in his safety deposit box instead of giving it to her.
 
A court looking at this case would not focus on the time at which the deed was physically given to the daughter. The court would focus on what Dad intended when he wrote and signed the deed, and put it in his safety deposit box. Most courts looking at this situation would agree that Dad constructively delivered the deed to his daughter when he signed it and put it away for safekeeping.
 
This is different from the situation where Dad simply promises to give his property away at a later date. In that situation, a court would not find any constructive delivery of a deed because Dad did not exhibit the intent to presently give away his property. He only exhibited a future intent to do so, which cannot constitute constructive delivery.
 
In Maria’s situation, the owner exhibited a present intent to give away the leasehold interest in the apartment, and thus delivery occurred. The owner might argue that the delivery was not valid because he changed his mind, and so his signature was only conditional⁸. Most courts would reject this argument because once the owner signed the lease, he gave up the leasehold interest. It was no longer his to place any conditions on. If he wanted to condition his signature, he should have done so expressly.
 
Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful¹⁷ Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.
 
You can send questions and comments to。。。or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.
 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 constructive   

adj.建设的，建设性的

参考例句：

• We welcome constructive criticism.我们乐意接受有建设性的批评。
• He is beginning to deal with his anger in a constructive way.他开始用建设性的方法处理自己的怒气。

4 rental   

n.租赁，出租，出租业

参考例句：

• The yearly rental of her house is 2400 yuan.她这房子年租金是2400元。
• We can organise car rental from Chicago O'Hare Airport.我们可以安排提供从芝加哥奥黑尔机场出发的租车服务。

5 binding   

有约束力的，有效的，应遵守的

参考例句：

• The contract was not signed and has no binding force. 合同没有签署因而没有约束力。
• Both sides have agreed that the arbitration will be binding. 双方都赞同仲裁具有约束力。

6 physically   

adj.物质上，体格上，身体上，按自然规律

参考例句：

• He was out of sorts physically,as well as disordered mentally.他浑身不舒服，心绪也很乱。
• Every time I think about it I feel physically sick.一想起那件事我就感到极恶心。

7 unconditionally   

adv.无条件地

参考例句：

• All foreign troops must be withdrawn immediately and unconditionally. 所有外国军队必须立即无条件地撤出。
• It makes things very awkward to have your girls going back unconditionally just now! 你们现在是无条件上工，真糟糕！ 来自子夜部分

8 conditional   

adj.条件的，带有条件的

参考例句：

• My agreement is conditional on your help.你肯帮助我才同意。
• There are two forms of most-favored-nation treatment:conditional and unconditional.最惠国待遇有两种形式:有条件的和无条件的。

9 divest   

v.脱去，剥除

参考例句：

• I cannot divest myself of the idea.我无法消除那个念头。
• He attempted to divest himself of all responsibilities for the decision.他力图摆脱掉作出该项决定的一切责任。

10 relinquish   

v.放弃，撤回，让与，放手

参考例句：

• He was forced to relinquish control of the company.他被迫放弃公司的掌控权。
• They will never voluntarily relinquish their independence.他们绝对不会自动放弃独立。

11 constructively   

ad.有益的，积极的

参考例句：

• Collecting, by occupying spare time so constructively, makes a person contented, with no time for boredom. 如此富有意义地利用业余时间来进行收藏，会使人怡然自得，无暇烦恼。
• The HKSAR will continue to participate constructively in these activities. 香港会继续积极参与这些活动。

12 leasehold   

n.租赁，租约，租赁权，租赁期，adj.租(来)的

参考例句：

• This paper discusses the land leasehold institution of China in four parts.本文论述了我国的土地批租制度及其改革。
• Absolute title also exists to leasehold land,giving the proprietor a guaranteed valid lease.租借土地也享有绝对所有权，它给予物主一个有担保的有效租借权。

13 valid   

adj.有确实根据的；有效的；正当的，合法的

参考例句：

• His claim to own the house is valid.他主张对此屋的所有权有效。
• Do you have valid reasons for your absence?你的缺席有正当理由吗？

14 tenant   

n.承租人；房客；佃户；v.租借，租用

参考例句：

• The tenant was dispossessed for not paying his rent.那名房客因未付房租而被赶走。
• The tenant is responsible for all repairs to the building.租户负责对房屋的所有修理。

15 scenario   

n.剧本，脚本；概要

参考例句：

• But the birth scenario is not completely accurate.然而分娩脚本并非完全准确的。
• This is a totally different scenario.这是完全不同的剧本。

16 ranch   

n.大牧场，大农场

参考例句：

• He went to work on a ranch.他去一个大农场干活。
• The ranch is in the middle of a large plateau.该牧场位于一个辽阔高原的中部。

17 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。