Sometimes it is necessary to intentionally leave personal property with someone else.
EXAMPLEImagine that you own a cat. If your cat, which is considered to be chattel, needs to have surgery, you will need to leave her at the veterinary hospital. Clearly, taking your cat to a veterinary hospital does not constitute abandonment. Likewise, you have not lost or mislaid your cat. And, precious though she may be, your cat is not subject to the concept of a treasure trove. Instead, in this situation, you will be known as a bailor, and you will be seeking a bailment with your veterinarian.
A bailor is someone in the rightful possession of personal property who gives the property to someone else to hold. A bailment is the arrangement in which this property is given.
The holding party, known as the bailee, agrees to accept the property and has the duty to return it. Again, the bailee is someone who is in possession of someone else’s property.
EXAMPLETo return to the previous scenario, you rightfully have possession of your cat because she is your personal property. You give your cat to the veterinarian to hold, who has agreed to accept the cat. You also rightfully expect that the cat will be returned to you on demand. Indeed, the veterinarian has a duty, by virtue of the bailment, to return the cat to you.
The bailee has certain duties to the bailor. For one, the bailee has a duty to take reasonable care of the property while the property is in his or her possession. This means different things for different types of bailment.
If the bailee is the only party who benefits from the bailment, then the bailee must take extraordinary care with the personal property. A common example of a bailee being the only party who benefits is when the owner of the property loans the property to someone for his or her use.
EXAMPLEif you loan your neighbor a snow shovel without asking for something in return, then your neighbor receives the sole benefit of the bailment. His or her duty of care is that he or she must take extraordinary care with the snow shovel. However, when both parties receive benefit from the bailment, such as when you rent a snowblower from the local Rent-a-Center, only the duty of ordinary care is imposed on the bailee. The bailee receives the snowblower and Rent-a-Center receives a rental fee.
When the bailment exists for the sole benefit of the bailor, then only a minimum duty of care is required. Gross negligence will give rise to liability, but there is no great duty for the bailee to be as careful as he or she would be if he or she were receiving some benefit.
EXAMPLEIf someone asks you to hold his or her books while he or she jumps into a swimming pool, you would have a minimum duty of care. If you lost the books, then you would not be liable. However, if you intentionally threw the books into the pool, then you would be grossly negligent and liable for damages.
An involuntary bailment is created when someone finds lost or mislaid property. The finder may not destroy the property, though the duties that he or she owes regarding the property may vary from state to state.
A voluntary bailment is created when intention exists to create the bailment, as described in the previous section.
As you can imagine, bailment is common in business. Common examples of bailment in business include:
Consider whether a business should be able to disclaim bailment (and the duties that go along with bailment).
EXAMPLEIf a hotel required its guests to sign a “no bailment created” clause on check-in, should that excuse the hotel from liability if the guests’ personal property is damaged while the property is left in the hotel?
Source: This content has been adapted from Lumen Learning's "Personal Property" tutorial.