Page:Halsbury Laws of England v1 1907.pdf/761

 —— Pakt

Gratuitous Bailment.

II.

539

the lender for any loss or damage, if he borrowed the chattel from its owner merely for the pm*pose of saving his own chattels from risk of damage or destruction. But he may be exempt if he can prove that he had previously disclosed to its owner that his object in borrowing it was to enable him to avoid hazarding his to

own property

^^ct.

3.

Gratuitous

Loan forJJse.

(t^).

1098. The borrower's liability, however, is qualified where a Where loan special contract is substituted for that imposed by the common Q^gj,^^^^ law, and possibly also where there has been an ofi'er of the chattel by the lender to the borrower, though the diminution of liability in this latter case

has been denied (/).

The borrower is liable if he detains the chattel from its owner after demand, or after the time agreed upon between them for its return has expired

(g)

.

1099. If in his use of what is lent the borrower is put to any ordinary expense, such as feeding or shoeing a horse, inasmuch as it is he who derives advantage from the user, such expenditure must in the absence of agreement be borne by him (Ji). As regards extraordinary expenses incurred by the borrower in the preservation of the chattel lent, whether arising from inherent defect, or viciousness peculiar to the chattel itself, or from circumstances altogether bej^ond his control, such as the tortious acts of third parties, it is doubtful whether they are to be paid by the lender and whether the borrower has a lien on the chattel for the amount of such charges if paid by him (i). Sub-Sect.

1100. renders

If it

the lender

is

3.

aware

of

any defect in the chattel which which it is lent, and fails

who in consequence is borrower can recover against the lender damages for any injuries so caused (j). So if the chattel lent has been put on one side and not used for years, and is then lent without any intimation to the borrower of this fact, and in consequence of its being out of repair, injury is caused to the borrower, he can recover in an action against the lender {k). In order to fix the lender with liability, the use must be of a kind contemplated by injured

fact to the borrower,

thereby, the

accedes to this doctrine (Jones on Bailments, p. 69), but it is very doubtful if it is law in England. Compare Story on Bailments, ss. 245 et seq. (e) Jones on Bailments, p. 70. (/) Pothier, Pret a Usage, s. 52. Compare note {x), p. 528, ante, (g) Jones on Bailments, p. 70, 1 Domat, book 1, tit. 5, {h) Handforcl v. Palmer (1820), 2 Brod. & Bing. 359

s.

art. 4.

3,

The French

—

ss. 81 83 1 Domat, book 1, and Sir William Jones say that the lender must pay such expenses (Jones on Bailments, p. 65). But it is thought that this is not the law {i)

tit.

5,

s.

3,

art.

jurists (Pothier, Pret a Usage,



4)

Compare Story on Bailments, ss. 273, 274. (y> Blahemore v. Bristol and Exeter Rail. Co. (1858), 8 E. & B. 1035, per Coleridge, J., at p. 1051; Cmighlin y. Gillison, [1899] 1 Q. B. 145, 2)er A. L. Smith, L.J., at p. 147 MacCarthy v. Young (1861), 6 H. & N. 329. (Jc) Ooughlin v. Gillison, svpra, per Rigby, L. J., at p. 148. of England.



Expenses,

Ohliyations of the Lender.

unfit for the purpose for

communicate the

to

Detention,

Obligations o^^^^^^®^-