The Bailor and the Bailee - Their Respective Responsibility - Returning a Loan

A person may borrow an article for her own benefit, as where a friend who is paying me a visit borrows my umbrella on a wet night. Or a person may consent to accept the loan of an article for the benefit of the lender, as where a person who is going away for a holiday packs up her plate and sends it to the bank. Or the loan may be of mutual benefit, as in the case of pawning or hiring goods, or of entrusting them to a carrier.

All these various transactions, and others of a similar kind, are known to the law as bailment, and a bailment is a delivery of a thing in trust for some special purpose, the person who delivers it being called the bailor, and the person to whom it is delivered the bailee.

The degree of responsibility cast upon the bailee varies with the nature of the bailment. In some cases he is only liable for ordinary care, while in others he must make good the loss in any case, unless it was occasioned by the act of God, such as fire or tempest.

The Stolen Overcoat

A man went into the Cafe Royal to dine, and divested himself of his overcoat, which one of the waiters took from him, and, without any directions, hung it upon a peg behind where he was sitting. After dinner it was found that the coat was missing, some other diner having walked off with it, and in an action to recover the value of the coat it was held that there was a bailment, and evidence of negligence, and that the proprietor of the restaurant must make good the loss.

Gratuitous Custodians

A customer deposited valuable securities with a bank in Australia, which kept them under lock and key in a strong-room in which a watchman slept at night, and which was guarded by a doorkeeper during the day. The bank received no remuneration for taking care of the securities, and when the latter were subsequently stolen by a cashier who had the keys which opened the doors of the place in which they were confined, it was held that in the absence of any negligence on the part of the bank the loss must fall on the customer.

Where a thing is lent gratuitously, a certain amount of vigilance must be exercised in the selection of the bailee. If I lend a child my watch to play with and it gets broken, I must not expect the damage to be made good by its parents.

Returning Borrowed Article

Some things are loaned to be returned just as they are, and in this case the borrower is responsible for slight negligence. If I lend you my umbrella I expect you to return my own umbrella to me, and not some other umbrella; and if I lend it to you in good condition and you tear a hole in the silk, or lend it to some other person, who ill-uses it, I shall expect you to make good the damage.

Similarly, if I borrow a book to read, I have no right to pass it on to a third party without your consent, but, having read the book, should take the earliest opportunity of returning it to you. If you lend me your bicycle to ride home on, I must be careful in using it and not ride it over broken stones, nor may I keep it for a day or two, using it in the meanwhile.

On the other hand, if while I am taking proper care of the borrowed article, it is stolen, without any fault of mine, the loss will fall on you.