The bailee has two basic duties, to take reasonable care of the property that has been entrusted to him and to return the property at the termination of the bailment. The bailee is responsible for using reasonable care to protect the property during the time in his possession. If the bailee does not exercise reasonable care and the property is lost or damaged, he is liable for negligence.
Thus, the bailee would have to reimburse the bailor for the amount of loss or damage. If the property is lost or damaged without the fault or negligence of the bailee, the bailee is not liable to the bailor.
Moreover, one of the essential elements for bailment is the duty of the bailee to return the property at the termination of the bailment. The bailee must return the goods in an undamaged condition to the bailor or to someone designated by the bailor. If the goods have been damaged or lost, there is a rebuttable presumption of negligence on the part of the bailee.
To overcome the presumption, the bailee has the burden of the exercise of the relevant level of due care. In most instances, the bailee must return the identical property that was bailed. The bailee is also liable to the bailor if he misdelivers the bailed property at termination of the bailment. The property must be returned to the bailor or to someone specified by the bailor. The bailee is responsible for using reasonable care to protect the property.
Whether the care exercised by the bailee in a particular case was reasonable depends in part on who is benefiting from the bailment. If it is a mutual benefit bailment, the bailee must use ordinary care, which is the same kind of care a reasonable person would use to protect his own property. If the bailee is a professional bailee he must use the degree of care a person in that profession would use. This is likely to be more care than the ordinary person.
In addition, there is usually a duty on a professional bailee to explain any loss damage to property, that is, to show it was not negligent. If it cannot do so, it will be liable to the bailor.
If the bailment is solely for the benefit of the bailor, the bailee may be held to a somewhat lower degree of care. If the bailee is doing you a favour, it is not reasonable to expect him to be as careful as when you are paying a bailee for keeping your goods. Usually, the bailee in this situation is liable only for gross negligence. On the other hand, if the bailment is for the sole benefit of the bailee, it is reasonable to expect that the bailee will use a higher degree of care.
Who benefits from a bailment is one consideration in determining what is reasonable care. Other factors include the nature and value of the property, how easily it can be damaged or stolen, whether the bailment was paid for or free, and the experience of the bailee. Using reasonable care includes using the property only as was agreed between the parties.
Bailees may try to limit or relieve themselves of liability for the bailed property. Common examples include the signs "not responsible for loss or damage to checked property,” and disclaimers "goods left at owner’s risk.” Any attempt by the bailee to be relieved of liability for intentional wrongful acts is against public policy and will not be enforced.
The courts look to see whether the disclaimer or limitation of liability was communicated and may hold that the disclaimer was not communicated to the bailee and did not become part of the bailment contract.
Even if the bailee was aware of the disclaimer, it still may not be enforced on the ground that it is contrary to public policy. If the disclaimer was offered on a take-it-or-leave-it basis and was not the subject of arm’s-length bargaining, it is not likely to be enforced.
Dr AbdelGadir Warsama Ghalib is a corporate legal counsel.