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Bailment

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BAILMENT, a delivery of specific goods by one person, called the bailor, to another person, called the bailee, upon an under standing, express or implied, that the identical goods shall be re stored to the bailor, or in accordance with his direction, as soon as the time or purpose, for which they were bailed, has elapsed or has been performed. A request for the return of the goods is usually an antecedent condition to proceedings for their recovery. Where goods in the lawful possession of a bailee are damaged by the negligence of a stranger, such third party is liable to the bailee although the latter may not be responsible to his bailors (Glen wood Lumber Co. V. Phillips [1904] A.C. 410).

Bailments are divisible into six classes (Coggs v. Bernard [ 1704] 2 Ld. Ray 909). These are : (I) Depositum, a simple bailment, without reward, of goods to be kept for the bailor by the bailee who has no right to use them. Such a bailee is liable only for gross negligence which is "want of that care which every man of common sense . . . takes of his own property." It has been stated that bankers taking charge of their customers' securities are in this class (Giblin v. McMullen [ 1868] L.R. 2 P.C. 317) ; but as such accommodation is confined to customers of the bank the accuracy of the classifica tion is doubtful.

(2) Commodatum, a bailment in which goods (afterwards to be returned to the owner in specie) are lent gratis to a bailee for use by him. The borrower for whose advantage the chattel is loaned guarantees not only to exercise the strictest care in its custody, but also warrants reasonable skill in its user and conformity to the purpose for which it was lent, slight negligence rendering him liable to indemnify the lender (Jones on Bailments 65).

(3) Locatio rei,

or lending for hire. The hirer of the chattel is bound to exercise such ordinary diligence and care over the thing hired by him as a man of common prudence would take in the management of his own concerns (Beal v. South Devon Ry. Co. [1864] 3 H. & C. 342).

(4) Vadium or pledge, a bailment of personal goods by a debtor to his creditors to be kept till the debt is discharged. The measure of responsibility of the pledgee is ordinary diligence in safeguard ing the chattel pledges.

(5) Locatio operis faciendi, a delivery of goods to be carried or in order that something may be done to them. Apart from legis lation a common carrier is an insurer of the goods carried. A bailee receiving goods for repair must exercise ordinary diligence in pre serving them.

(6) Mandatum, a delivery of goods to be carried or in order that something may be done to them gratuitously. The bailee must act in good faith and is liable for negligence or incapacity. (See also BANKS AND BANKING, CARRIERS, DILIGENCE, FACTOR, HIRING, INNS AND INNKEEPERS, LIEN, NEGLIGENCE, PLEDGE, PAWNBROK ING, PRINCIPAL AND AGENT, etc.).

In the United States the division of bailments into the classes above specified has not met with favour because of its lack of practical utility, and bailments in this country are divided into three classes: (I) bailments which benefit the bailor alone; (2) bailments which benefit the bailee alone; and (3) bailments which benefit both bailor and bailee. In all bailments title to and owner ship of the property remain in the bailor, and the bailee takes only the interest specified for the object of the bailment. Possession in the bailee gives him a qualified property interest as against a third person. A bailee cannot deny his bailor's title, so the burden of proving ownership in bailment is always with the bailee. However, delivery of the property to one having a paramount title to the bailor is a sufficient excuse for non-delivery by the bailee to the bailor; in such case the bailee assumes the risk of establishing the title so recognized in another.

bailee, bailor, bailments, negligence and delivery