Page:Harvard Law Review Volume 5.djvu/240

224 224 HARVARD LAW REVIEW. properly so called. One of the most important classes of under- takings, however, is bailments; and for a long time it was held that every bailment included a contract. There has lately been a determined effort to controvert that doctrine, which is certainly untenable with regard to gratuitous bailments, because there is no consideration to support a contract. It is urged that the giving up of the goods by the bailor is sufficient. But so far from being a detriment, this is usually a benefit to the bailor; it secures protection to the goods for the bailor, but gives the bailee no right to use for any purpose. Even the element of mutual assent is not necessary. B, for instance, finds A's pocket- book in the street, and takes it up for the benefit of the owner; it is absurd to say that B promises the unknown owner, in consid- eration of being allowed to pick it up, to find him out and return it in good condition, and that such a promise is agreed to by A. Yet that is the absurdity to which we are brought by the ordinary doctrine of bailment. It is clear that there is really no contract in the case, at least, of gratuitous bailment, but that the rights and liabilities of the parties are regulated merely by the bailee's under- taking to hold the property. It is equally true that the violation of an undertaking is not a tort, properly so called. It is a careful and exact use of legal language to call an undertaking a consensual obligation ; it is a burden into which the obligor must voluntarily enter. One has only to be born or to immigrate into a society, in order to undergo the duty of respecting the persons and property of his neighbors ; but in order to be required to exercise the active care required of an undertaker, the obligor must " take the trust upon himself." The distinction is recognized in the law of damages. Where goods in the possession of a carrier are destroyed by a stranger, the act of the latter is a tort, and the measure of the damages he must pay is the value of the goods at the time and place of destruction ; the owner could collect only that amount, though the wrongdoer knew of the destination of the goods. But if instead of suing the stranger, the owner brought action against the carrier, the value would be taken at the time and place of delivery, whether the form of action was tort or contract. This must be on the ground that the carrier's obligation was there violated ; but clearly there was no tort there committed, for the property never came there.