Page:Halsbury Laws of England v1 1907.pdf/760

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Bailment.

538 Sect.

Sub-Sect.

3.

Gratuitous

Loan for Use. Obligations of borrower.

2.

OUigations of the Borrower.

1097. The lender must be taken to lend for the purpose of a by the borrower. The borrower, therefore, is not responsible for reasonable wear and tear (t/). But as he alone receives benefit from the contract, he is liable for negligence, however slight and he is bound to exercise the utmost degree of care in regard to the chattel bailed {£) and anything that is accessory beneficial use



thereto Modified by circumstances.

Exceptions.

{a).

What

proper diligence, and what constitutes neglect, in a his custody of the chattel lent, depends upon the circumstances of each particular case, the nature of the chattel lent, and the character and occupation of the borrower {h). As a general rule, however, he is not liable if, without any default on his part, the performance of his contract becomes an is

borrow^er,

absolute

in

impossibility,

or

for

or

loss

injury arising from the

person which could not be reasonably foreseen or prevented, or from the results of external and irresistible violence (c). Consequently, if the borrower's house be destroyed by fire, and, owing to his exertions in saving his own chattels, he be unable to save the chattel borrowed by him, it is extremely doubtful whether he must compensate the owner for its destruction merely because he preferred his own property to that which had been lent to him for his benefit {cl). A borrower, however, is usually liable

wrongful act

of a third

Rail. Co. (1858), 8 E. & B. 1035, ^^er Pomfret v. Ricroft (1669), 1 Saimd. 321, 323. (z) Coggs v. Bernard (1703), 2 Ld. Raym. 909, at p. 915, per Holt. C.J, "The borrower is "bound to the strictest care and diligence to keep the goods so as to restore them to the lender, because the bailee has a benefit by the use of them, If the so if the bailee be guilty of the least neglect lie will be answerable. bailee [of a horse] put the horse in his stable, and he were stolen from thence^ the bailee shall not be answerable for him but if he or his servant leave the house or stable doors open, and the thieves take the opportunity of that and steal the horse, he will be chargeable because the neglect gave the thieves the occasion to steal the horse, but yet he shall not be chargeable where there is such a force as he cannot resist " see also Vaughan v. Menlove (1837), 3 Bing. (n. c.) 468, per TiNDAL, C.J., at p. 475 Jones on Bailments, p. 64. This view of the measure of the responsibility of the borrower is also taken by Pothier, who says that it isnot sufficient for the borrower to exert the same ordinary care which fathers of families are accustomed to use about their own affairs, but that he ought to exert all possible care, such as the most careful persons apply to their own affairs, and that he is liable, not only for a slight fault, but also for the slightest fault ; that is, he is bound to bring to the custody all possible care (Pothier, Pret a Usage, s. 48)» This superlative degree of carefulness (the exactissima diligentia of the Roman law) has, however, been doubted by some jurists, one of whom states, " The commodatory, or person to whom the thing is lent, is not obliged to answer for any uncontrollable force, or for the loss or damage of the thing which happens by any fortuitous cause, provided such accident does not intervene through his fault or neglect, though it is necessary that he should take the same care of the thing as every prudent man would take of his own goods, since this contract is entered into for his sake " (Aylifie, Pand., book 4, tit. 16, p. 517). (a) Jones on Bailments, 4th ed., p. 66. {y)

Blakemore

Coleridge,

Bristol

v.

1051

J., at p.

and Exeter





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{h) Wherever a hirer is responsible (as to which see post, p. 552), d fortiori a borrower is, and. he may be rei?ponsible w^here a hirer is not, seeing that greater diligence is required of him. (c) Pothier, Pret a Usage, ss. 38 55, 56, and see note {z), supra. {d) Pothier, Pret a Usage, s. 56 Pothier, basing himself upon the Roman law, takes the view that he must compensate the owner, and Sir William Jone&

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