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 — Part

II.

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Gratuitous Bailment.

541

m

Sect. 4. it still remaining in the lender borrower, the true ownership whereas in mutuinn the absolute property in the chattel passes from Gratuitous Quasithe lender to the borrow^er. Mutuum is confined to such chattels as are intended to be con- bailment. sumed in the using and are capable of being estimated by number, Consumable chattels. weight, or measure, such as corn, wine, or money (OThe essence of the contract in the case of such loans is, not that the borrower should return to the lender the identical chattels lent for such specific return would ordinarily render the loan valueless but that upon demand or at a fixed date the lender should receive from the borrower an equivalent quantity of the chattels lent. Thus, if mone}^ be advanced, its value in money must be returned, if corn or wine be lent, then similar corn or wine of an equivalent amount nor wall an enhancement in the commercial value of the commodity lent justify the borrower in tendering a less quantity than he actually received {u). It is not, however, a contract of mutuum if a bargain is made Barter, by which an equivalent value of wine is to be returned for oil, or flesh for corn, such an exchange constituting a contract and therefore coming within a different category of barter, altogether (v).

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1103. As a necessary consequence of the absolute transfer of the Obligations borrower, property in, as w^ell as the custody of, the chattel lent, the borrower is not, by reason of its accidental loss or destruction, released from his obligation to return to the owner its equivalent in kind upon demand, for it is the borrower's property, and the rule is Ejus est periculum, cujus est dominium (jv). An actual demand is, however, a condition precedent to an action Demand for for the non-delivery of the equivalent just as where a man deposits equivalent, money in the hands of another, to be kept for his use, the possession of the bailee is deemed the possession of the owner until an application and refusal, or other denial of the right. The Statute of Limitations runs from the date of such demand only (x).

Sub-Sect.

Pro-mutuum.

2.

1104. Whenever a person, acting under a misapprehension as to Pro-mutuum. an existing fact or state of facts, delivers to another a chattel which cannot be restored in specie, there arises the ^itasi-contract of promutuum, which imposes upon the recipient the obligation to restore

Pro-mutuum differs from mutuum in that this equivalent. obligation is imposed by law, whereas in mutuum it arises out of the voluntary agreement between the lender and the borrower it resembles mutuum in that the subject-matter to which it relates

its



Domat, book 1, tit. 6, s. 1 Story on Bailments, s. 283. Domat, book 1, tit. 6, s. 1, art. 9. {v) 1 Domat, book 1, tit. 6, s. 1, art. 10 Jones on Bailments, pp. 64, 102. As to barter, see titles Personal Property Sale op Goods. {iv) Story on Bailments, s. 283 Doctor and Student, ed. by Murcliall, edition 1815, 2nd dial, chap, xxxviii. {x) Re Tidcl, [1893] 3 Ch. 154, fer North, J., at p. 156, approving Pothier on the Law of Obligations, ed. by Evans, Vol. II., p. 126 and see South it)

(it)

1



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Australian Insurance Co. Limitation of Actions.

v.

Bandell (1869), L. E. 3 P. C. 101, and, generally,

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