BAILMENT. 



BAIRAM. 



794 



merely to return the property to the owner, but to execute the com- 

 mission which, by the acceptance of the goods for that purpose, the 

 bailee has engaged to perform. There is, however, no real difference 

 in the two cases as to the degree of liability incurred by the bailee ; 

 for his acceptance of the commission implies an undertaking to do as 

 much towards the execution of it, as he would do if he were per- 

 forming hia own work; and accordingly, if he be guilty of gross 

 negligence or breach of faith, he may be charged with any loss occa- 

 sioned thereby. 



III. Commodatnm, is a loan of goods to be used by the person 

 to whom they are lent or delivered, without pay. In this case, 

 as the bailee alone derives a benefit from the transaction, a pro- 

 portionate increase of obligation and responsibility is cast upon bam. 

 Where a chair, a book, a carriage, or any other article is lent for the 

 accommodation of the borrower, he is bound to re-deliver it specifi- 

 cally in as good condition as it was in when delivered to him, subject 

 only to the deterioration produced by the ordinary and reasonable 

 use of it for the purposes of the loan : and he is also bound to indem- 

 nify the lender against any loss or damage which might have been 

 avoided by very great care and vigilance. A borrower, therefore, is 

 answerable not only for slight, but for the slightest neglect ; he is to 

 use not merely ordinary, but the greatest possible care ; and it is not 

 sufficient to exonerate him from responsibility for the loss or injury of 

 the article borrowed, that he has taken as much care of it as of his 

 own property; it is his duty to apply the utmost care of a careful 

 and vigilant man. Thus, if I place a borrowed horse in a ruinous 

 stable, and a violent tempest blows down the stable and kills the 

 horse, I must bear the loss ; because a very careful man would have 

 repaired the stable, or would not have put the horse into it ; while, 

 on the other hand, if the stable had been in good repair, and had 

 fallen from the violence of the tempest only, I should not have been 

 liable. Even if the goods be stolen from a borrower, he must indem- 

 nify the owner, unless he has observed the greatest care, and used 

 every precaution to prevent the occurrence. Thus, if I lock up a 

 borrowed horse in my stable, and robbers break the door and steal him, 

 I am not chargeable ; but if I or my servants neglect to lock the stable- 

 door, and thus give an opportunity to the robbers, I shall be liable, 

 because my negligence has contributed to the loss. This instance will 

 also serve to illustrate a distinction between a loss by robbery and a 

 loss by theft, which is fully adopted into our law from the Roman 

 law. If I neglect to lock the stable-door, in consequence of which the 

 horse is stolen, this is a case of theft, which would not have happened 

 but for my neglect ; whereas if robbers break the door and take the 

 horse, this is a case of robbery or overpowering violence, which no care 

 of mine could prevent. "Adversus latronet," says the civil law, 

 " parhm prodest custodia ; adversus furtm potest, si quis advigilet." 

 There may, however, be a case in which a borrower will be liable, 

 though the borrowed article be taken from him by superior force. 

 Thus, if I borrow a horse for a journey, and instead of taking the 

 common road, I ride across a country notoriously infested by robbers, 

 in consequence of which I am assailed and the horse is killed or taken 

 from me : in such a case, I shall be chargeable, because the loss was 

 occasioned by my imprudence in quitting the main road. The 

 borrower of an article is also bound to use it for no longer time and 

 for no other purpose than those for which it was lent. Thus, if I 

 borrow a horse for a week to ride to Bath, and instead of using him 

 for that time and purpose, I ride him to Oxford, and keep him 

 a month, I am liable to indemnify the lender for any accident 

 which may befal the horse in the journey to Oxford, or after the 

 expiration of a week. So also, if I lend a borrowed horse to another 

 person, in consequence of which the horse is injured, I must indemnify 

 the owner. 



IV. Vadium, is a delivery of goods in pledge or pawn as security 

 for some debt or engagement. In this case a benefit is derived 

 by each party to the transaction : by the pawnee, by his having a 

 profit on the loan and also a security for it ; and by the pawnor, by 

 his having the advantage of goods or money on credit. The duty, 

 therefore, of the bailee in this case is to take ordinary care of the pro- 

 perty while in his custody, such care, namely, as a careful man 

 bestows upon his own property. He is not bound to use the most 

 exact diligence, as in the case of a borrower for use ; but he is respon- 

 sible for less than gross neglect. As the presumption is, that a bailee 

 does not use ordinary diligence who suffers the goods deposited with 

 him to be taken away by ttealth, it follows that if they are simply 

 fiiilrn from him, he is liable to account for them to the pawnor, unless 

 he can show by the circumstances of the transaction, that he was in no 

 default. But the distinction above mentioned between a theft and a 

 robbery exists in this case also ; and, therefore, a pawnee is not liable 

 if he be forcibly robbed without any misconduct or neglect on his 

 part. So in case of his house being accidentally burnt, the pawnee is not 

 liable to restore to the owner the value of goods pawned, if he has 

 UwM ordinary care to prevent the occurrence of such an accident. 

 Hie pawnee is not, in general, at liberty to use the thing pawned ; 

 although if such use were necessary for its preservation, or otherwise 

 beneficial to it ; or if, where the pawn is an animal, it were used as a 

 recompense for the cost of its keep, the law would perhaps imply the 

 consent of the pawnor, to the use of the article pledged. Such use, 

 however, is always at the peril of the pawnee who must indemnify the 



owner in all cases, even of robbery by violence, if the goods pawned 

 are lost by him while he is wearing or otherwise using them. 

 _ V. Location. This species of bailment, which is of the most exten- 

 sive importance in the common affairs of life, is where an article is 

 delivered to the bailee, on the terms that a payment or remuneration 

 shall be made, either by the bailee for the use of it, or by the bailor 

 for work and services to be performed by the bailee upon the article 

 delivered to him. For more clearly understanding the relative rights 

 and duties of the parties to this kind of bailment, it may be conveniently 

 divided into two parts : 1. A bailment of goods to be used by the 

 hirer for a compensation to be paid by him to the owner, which con- 

 tract is called loeatio rei ; and, 2. A delivery of goods for the purpose 

 of having work done upon them, or of being safely kept for the owner ; 

 and in each case for a reward or payment to be given or made to the 

 bailee by the owner. This latter contract is called loeatio opera. 



A third division has been made by some authors, namely, loeatio 

 mercium vehendarum, where goods are bailed for the purpose of being 

 carried from one place to another, for reward to the carrier. This 

 seems, however, to be merely an instance of the loeatio opens. 



With regard to the first of these divisions, the modern and ap- 

 proved doctrine is, that the hirer of goods for a payment to the 

 owner is bound to keep them with ordinary care, that is, with that 

 degree of care which a careful man uses in keeping his own goods. 

 If, therefore, I hire a horse, I am bound to treat it in all respects 

 with the same care and moderation with which a man of common 

 sense and prudence would treat his own horse ; if I place it in a stable 

 and leave the door open, so that it is stolen through my negligence, I 

 must indemnify the owner ; but I am not answerable if it be violently 

 taken from me by robbers ; unless, by riding at unseasonable hours, 

 or travelling by unusual roads, I have imprudently placed myself in 

 the way of danger. So, also, if I hire a house, lodging, or carriage, 

 I must take the same care of them, and of the conduct of my servants 

 and family respecting them, as a prudent and discreet man would 

 take of his own property. 



A bailee of goods for hire, even for a tune certain, by selling the 

 goods, determines the bailment ; and the bailor may sue the purchaser 

 as for a conversion thereof, although the purchase was bond fide. And 

 so if, during the bailment, the goods are taken in execution for a debt 

 of the bailee, this puts an end to the bailment, and the bailor may sue 

 as for a conversion of the goods. 



The second kind of bailment comprised under this general head, 

 namely, loeatio opera, is of very general occurrence. Not only manu- 

 facturers and artizans, who have materials delivered to them to work 

 up, but innkeepers,' carriers, factors, wharfingers, and warehousemen 

 fall under this general head. But as innkeepers, factors, and carriers 

 are exposed to a greater degree of responsibility by the law of England 

 than that of mere bailees for hire, by means of acts of parliament and 

 ancient customs, we refer, for the details of their liabilities, to 

 CARRIER, FACTOR, and INN. Generally speaking, all bailees of this 

 description, who in fact let their skill and attention to hire, are 

 bound to take ordinary care of the things respectively bailed to them. 

 With respect to manufacturers or artizans, they are not only bound 

 to keep with ordinary care the goods deposited with them to be 

 worked upon, but they must also apply a degree of skill equal to 

 the performance of the particular kind of work committed to them. 

 This obligation is founded upon the presumption, that every man 

 possesses the ordinary skill required for the art or business he pro- 

 fesses. The doctrine of the civil law is, that every person professing 

 an art or handicraft tpondet peritiam arlis ; and the consequence of 

 this doctrine is that imperitia eidpre numerator. If, therefore, I 

 deliver cloth to a tailor with directions to make it into a coat, and if, 

 for want of having the ordinary skill of his trade, he cuts it so as to spoil 

 the cloth, he must indemnify me for the loss. With respect to agisters 

 of cattle, wharfingers, and warehousmen, it may be stated generally 

 that they are all responsible for want of good faith, and of reasonable 

 and ordinary care and diligence, and not to any greater extent unless 

 under peculiar circumstances. 



(Upon the whole of this subject, see Sir William Jones's Essay on 

 the Law of Bailments ; Bacon's Abridgment, title 'Bailment' ; Pothier's 

 Trails del Contracts, <kc. ; and Kent's Commentaries on American Law ; 

 in which latter work the subject of bailment is treated in a most per- 

 spicuous manner.) 



BAIRAM is the designation of the only two festivals annually 

 celebrated by the Turks and other Mohammedan nations. The word is 

 Turkish, and means a feast day or holiday. The first is also called 

 Id-al-Fitr, that is, "the festival of the interruption," alluding to the 

 breaking of the universal fast which is rigorously observed during the 

 month Ramadan or Ramazan. This is, according to Sale, properly the 

 lesser Bairam, but from having been celebrated more generally, and for 

 a longer period than the other, it is now almost universally distin- 

 guished as the Grand Bairam. It commences from the moment when 

 the new moon of the month Shawall becomes visible, the appearance of 

 which, as marking the termination of four weeks of abstinence and 

 restraint, is looked for and watched with great eagerness. At Con- 

 stantinople it is announced by the discharge of guns at the seraglio 

 upon the sea-shore, and by the sounding of drums and trumpets 

 in all public places of the city. This festival ought, properly, to last 

 but one day ; but the rejoicings are generally continued for two days 



