Chapter VIII. Bailment

BAILMENT is a contract by which the possession of chattels is delivered by one person (the bailor) to another person (the bailee) either to be delivered by the bailee to a third person or to be redelivered to the bailor when the purpose of the bailment is at an end.

According to the common enumeration there are six kinds of bailment—depositum, commodatum, locatio et conductio, vadium, locatio operis faciendi, and mandatum. Of these depositum and mandatum are for the benefit of the bailor alone, and the bailee is liable only for gross negligence in the performance of his duty. Commodatum is for the sole benefit of the bailee, who is therefore liable for even slight negligence. The other kinds are for the benefit of both bailor and bailee, and the bailee will be liable for ordinary neglect. The foregoing degrees of negligence are required by law to make the bailee liable, but by express agreement he may bind himself to more or less care, and then he will be held liable accordingly. Moreover, when a bailee possesses any special skill, the omission to use that skill in the execution of the trust committed to him will be imputed as gross negligence even if he derived no benefit from the bailment.

A deposit is a bare naked bailment of goods delivered by one man to another to keep for the use of the bailor without reward. The depositary in general is not allowed to use the deposit, for it is given to him to keep for nothing; he is bound to exercise the same care of the deposit as he does of his own goods, but he will only be answerable for gross neglect.

A mandate is the delivery of goods or chattels to somebody who is to carry them or do something about them gratis. The mandatary, like the depositary, is liable only for gross neglect, but if his situation or profession is such as to imply skill, the failure to use that skill will be imputable as gross neglect.

A loan is the lending of goods or chattels to another to be used by him gratis. As the borrower obtains the use of the thing lent for nothing he will be answerable for even slight negligence, and he is not justified in using it for a longer time or for other purposes than was agreed upon. He is not responsible for reasonable wear and tear. The lender on his side is responsible for defects in the chattel with reference to the use for which he knows the loan is accepted, of which he is aware, and owing to which directly the borrower is injured.

In the contract of hiring where goods are lent to a person in consideration of payment, the hirer is bound to use ordinary care of them such as a prudent man would take of his own goods, and he will be responsible for ordinary negligence.

Pawn or pledge is a contract by which goods or chattels are delivered to another to be security to him for money borrowed of him by the bailor. The pawnee must use ordinary diligence in the custody of the pledge which he is not permitted to make use of except when its keep entails expense, as in the case of a horse, and then the pawnee may make reasonable use of it so as to indemnify himself for its keep.

The pawnee may recover his debt by giving notice to the pawner that he will sell the subject of the pledge, or he may sue for his debt, or if he pleases he may adopt both remedies. A pledge differs from a lien in that this only gives the right to retain property, and from a mortgage of personal estate which passes the actual property in the goods to the mortgagee.

Pawnbrokers form a special kind of pawnees, but although transactions dealing with loans above ten pounds are governed by the common law, loans of ten pounds and less are subject to the Pawnbrokers Act, 1872. By this Act every pledge must be redeemed within twelve months from the day of pawning, with seven additional days of grace. If a pledge is not redeemed within that time, and the amount for which it was pledged does not exceed ten shillings,’it becomes the absolute property of the pawnbroker; if it was pledged for above ten shillings, it may be redeemed until actual sale, and such sale must be by public auction, and the surplus after the costs of the sale and the amount of the pledge and interest must be accounted for.

The pawnbroker is made liable for loss in case of fire, against which he may protect himself by insurance, and he may treat the person who produces the pawn-ticket as entitled to redeem the pledge.

The last species of bailment is a contract by which goods or chattels are delivered to be carried, or something is to be done about them for a reward to be paid by the bailor to the bailee. With regard to the liability of such bailees a distinction is made between persons exercising a public employment, such as public carriers, and private persons. The former are responsible for all losses except such as happen through the act of God and the King’s enemies. The latter are only bound to exercise the reasonable care which is to be expected from a skilled storekeeper acquainted with the risks to be apprehended; and this care must be shown not only in obviating the risks, but in taking all proper measures for the safety of the goods or of a portion of them when the risks have occurred. There are special laws which govern the liability of railway companies and innkeepers.