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Bailment

neglect, bailee, nature, ordinary, care, test, classes and bailor

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BAILMENT has been defined as the delivery of goods on a condition, express or implied, that they shall be restored by the bailee to the bailor, or according to his directions, as soon as the purpose for which they were bailed shall have been served. The person who thus delivers property to another is called the bailor, the person receiving it the bailee, and bailment is created by what is known as a contract of bail ; but the contract itself, as well as the goods the subject thereof, may be each indifferently referred to as a bailment. This special form of contract has been the subject of much learned and analytical legal discussion. The net result of this discussion is found, first, in the defini tion of a bailment ; secondly, in the determination of its classes or heads : and finally, in the rights and obligations held to attach to the respective classes. We have already given a definition, and on this point it will be sufficient to simply illustrate a bailment, by reference to the case of a pledge of, e.g., a watch with a pawnbroker in the ordinary way of his business.

The Classes of Bailments may be taken as five in number—(i.) Deposit, (ii.) Mandate, (iii.) For use, (iv.) Pledge, and (v.) Locatum. Before proceed ing to the separate discussion of these different classes, it will be convenient to describe the nature of the contract generally. In the first place,„ the defini tion will be seen to include an obligation on the part of the bailee to deliver up the thing bailed at a certain time. From this it follows that the bailee must keep it safely, and would be responsible in case of loss or damage. And it is because of this obligation, and the need for definite principles in ascertaining its nature and extent, that definition and classification are, in this subject, so necessary. Justice cannot require that in every conceivable set of circum stances the bailee shall be answerable for the damage or loss of the property. On the contrary, the nature of the bailment is an essential factor in the question, so that responsibility shall be proportionate to and consistent with its nature. The ascertainment of this responsibility thus becomes, in every particular bailment, the problem involving the principal difficulty.

The first thing to be considered, therefore, is the nature of the bailment is it such as to require an indulgent, an indifferent, or a rigorous test of re sponsibility ? If the test is indifferent to either indulgence or rigour, then it will be that aftbrded by the care which every person of common prudence, and capable of governing a family and conducting business, takes of his own con cerns. Such care is average, and is called ordinary care ; and its omission is

ordinary neglect. Indulgence or rigour in the test requires a care either less or more than this, but precise definition applicable to every case would be impossible. There are infinite shades of fault or neglect, from the slightest inattention to the most reprehensible supineness or stupidity ; a want of ex tremely great care may be an extremely little fault, and a want of the slightest attention may be so great a fault as to almost change its nature and become a breach of trust, and even a deviation from common honesty. We have laid down the test for ordinary neglect ; the other must lie one side or other of that, from fraud to accident. Where, precisely betl%een ordinary neglect and either fraud or accident, may lie any conduct in question, is im material, foe the law takes no notice of meeting lines, nice discriminations, and elusive quantities ; the distinction must therefore be general. Accord ingly, if the test be indulgent, neglect should be gross ; if rigorous, it need only be a slight neglect. Having in view our definition of ordinary care, we can, as varying about that, define slight and gross neglect. The former is the omission of that diligence which very circumspect and thoughtful per sons use in securing their own property ; the latter being the want of that care which every man of common sense, however inattentive he may naturally be, takes of his own puperty. We will now consider each class of bailment in the order set out above, first, however, drawing attention to an all-important point, viz. that of payment or reward. What advantage accrues to the parties to the bailment ?—is, for example, the owner of the horse to be paid for the loan of his horse, or is it lent free of charge ? Is the plate deposited by Jones with his friend Smith intended to be merely kept in safe custody by Smith or used by him ; and does either party pay anything to the other in respect of the deposit ? As these questions may be answered, so may vary the nature of the bailment. If the bailment is for the benefit of the bailor alone, as in the cases of deposit and mandate, the bailee is responsible for only gross neglect ; if for the benefit of the bailee alone, as in the case of a bail ment for use, the bailee will be answerable for slight neglect ; whilst if for the mutual benefit of bailor and bailee, as in the cases of pledge and locatum, the bailee is,responsible for ordinary neglect.

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