773. A contract of deposit for safe keeping may be concluded by offer and
acceptance either expressly or by implication. Examples:-
(1). A informs B that he has deposited with him for safe keeping certain
property of which he is the owner, or that he has placed such property with him
on trust, and the person with whom such property is deposited agrees thereto. An
express contract for the deposit of a thing for safe keeping has been concluded.
(2). A enters an inn and asks the inn-keeper where he should tie up his animal.
The latter shows him a certain place and A ties his animal up there. A contract
for deposit for safe keeping has been concluded by implication.
(3). A leaves certain property with a shopkeeper. The shopkeeper is aware
thereof, and keeps silence. The property in question is deposited for safe
keeping with the shop keeper, however, declines to keep the property, no
contract for safe keeping is concluded.
(4). A leaves property of his with certain persons for safe keeping. The
property in question is deposited for safe keeping with all of such persons. BUt
if such persons leave the place in question one by one, such property is
deposited for safe keeping with the last remaining person, who is responsible
for its preservation.
774. The person making the deposit for safe keeping and the person so receiving it
may either of them cancel the contract of deposit for safe keeping at any time
they wish.
775. The thing deposited for safe keeping must be capable of
possession and delivery. Consequently, a deposit for safe keeping of a bird in
the air is invalid.
776. The person making the deposit for safe keeping and the
person so receiving it must be of sound mind and perfect understanding, though
they need not have arrived at the age of puberty. Consequently, a madman or a
minor of imperfect understanding cannot validly make or receive a deposit for
safe keeping. A deposit for safe keeping or the receipt thereof by a minor of
perfect understanding, however, who has been duly authorised thereunto, is
valid.
SECTION II. EFFECT OF MAKING A DEPOSIT FOR SAFE KEEPING AND OF
MAKING GOOD ANY LOSS ARISING THEREFROM.
777. The thing deposited for safe
keeping is a trust in the possession of the person receiving such thing.
Consequently, if it is destroyed or lost without the fault or negligence of the
person keeping such thing, there is no necessity to make good the loss. But if
such thing has been deposited for safe keeping in consideration of payment of a
fee, and the thing has been destroyed or lost owing to some cause which might
have been avoided, the loss must be made good.yvT , Examples:-
(1). A watch is entrusted to A for safe keeping, and A accidentally drops and
breaks it. A cannot be called upon to make good the loss. But if A threads on
the watch or drops something on it and it is broken, A must make good the loss.
(2). A entrust certain property to B for safe keeping and pays him a fee for
doing so. Later, the property is stolen. The person receiving such property must
make good the loss, since it arose from a cause which could have been
avoided.
778. If the servant of the person receiving property for safe
keeping drops something on to such property and it is destroyed, the servant
must make good the loss.
779. The person receiving the property for safe keeping may not
perform any act with regard to such property which he is not authorised to do by
the owner thereof.
780. The person receiving property for safe keeping must keep
such property personally and as though it were his own property, or cause it to
be kept by some person in whom he has confidence. If such property is destroyed
or lost while in the negligence on his part, neither he not the person receiving
the property for safe keeping may be called upon to make good the loss.
781. The person receiving property for safe keeping may keep such
property in the place where he keeps his own property.
782. The property entrusted for safe keeping must be kept in the
same way as articles similar thereto are kept. Consequently, placing property
such as cash and jewels in such places as stables and barns amounts to
negligence, and if they are destroyed or lost while there, the loss must be made
good.
783. If the persons receiving property for safe keeping are
several, and the property deposited for safe keeping is not capable of division,
one of them may keep such property with the permission of the others, or they
keep it in turn. If the property entrusted for safe keeping in these
circumstances is destroyed without any fault or negligence, none of them may be
called upon to make good the loss. If the property de[posited for safe keeping,
however, is capable of division, the persons receiving such property may divide
it among themselves equally, each person keeping his own share. No one of them
may give his share to any other person for safekeeping unless he obtains the
permission of the person who has deposited his property with him. If he does so,
and it is destroyed or lost without fault or negligence while in such other
person's possession, the latter is not liable to make good the loss, but the
former may be called upon to do so in respect to his share.
784. If any condition contained in the contract of deposit for
safe keeping is capable of execution and beneficial, such condition is valid, if
not it is null and void.yvT Examples:-
(1). A contract of deposit for the safe keeping of certain property is drawn up
subject to the condition that such property is to be kept in the house of the
person receiving such property. A fire breaks out, and the property has to be
transferred to another place. The becomes invalid; and if the property after
having been transferred to such other place is destroyed or lost without any
fault or negligence, there is no obligation to make good the loss.
(2). A person entrusts property to another for safe keeping, instructing the
latter to keep such property, and forbids him to entrust it to his wife or his
son, or to a servant, or to a person to whom he has entrusted his own property,
and such person is forced to disobey his instruction. The prohibition becomes
invalid. If the property entrusted to such person in these circumstances is
destroyed or lost, without any fault or negligence, there is no need to make
good the loss. If he was under no necessity to do so, however, the loss must be
made good.
(3). A contract of deposit for safe keeping is concluded subject to the
condition that the property shall be kept in a particular room of the house. The
person receiving such property stores it in another room. If such rooms are
identical the one with the other, as regards safety, the condition is invalid;
and if the property entrusted for safe keeping is destroyed in these
circumstances, there is no need to make good the loss. But if one room differs
from the other, as where one is made of stone and the other of wood, the
condition is invalid and the person to whom the property is entrusted is bound
to store the property in a room which is inferior to the room agreed upon as
regards safety, and the property is destroyed, the loss must be made good.
785. If the owner of the property deposited for safe keeping is
absent, and it is known whether he is alive or dead, the person receiving such
thing must keep it until such time as it is proved that he is dead. If the
property is of such nature, however, that it would spoil by being kept, it may
be sold by the order of the Court, and such person may then keep the proceeds on
trust. If the property is not sold and is ruined, there is no need to make good
the loss.
786. The owner of a thing deposited for safe keeping which
requires maintenance, such as a horse or a cow, is responsible for the
maintenance thereof, In the event of the absence of the owner, the person
receiving such thing for safe keeping may apply to the Court, which will decide
upon the most suitable and useful manner for the owner in which to deal with the
matter. Thus if the property can be let on hire, the person receiving the
property can be let it on hire, subject to the approval of the Court, and may
provide for its maintenance out of the proceeds, or may sell it for an estimated
price. If it is not capable of being let on hire, he may, subject to the price
forthwith, or after having provided for the maintenance thereof from his own
property for a period of three days, the expenses incurred in connection with
the three days upkeep being charged to the owner. If he incurs such expenditure
without the sanction of the Court, however, he cannot recover it from the person
depositing property for safe keeping.
787. If the property deposited for safe keeping is destroyed or
the value thereof diminished by the fault or negligence of the person entrusted
therewith, such person must make good the loss.yvT s Examples :-
(1). The person to whom money is entrusted for safe keeping uses such money for
his own purposes. He must make good for the loss. If he spends a purse of money
in this manner which has been left with him on trust, and afterwards replaces it
with money of his own, and it is later lost without any fault or negligence on
his part, he is nevertheless liable to make good the loss.
(2).A person to whom an animal has been entrusted for safe keeping rides the
animal without the permission of the owner, and such animal is destroyed either
by riding it in some manner, or for some other reason, or for no reason at all,
or such animal is stolen while on the road. Such person must make good the loss.
(3). A person to whom property has been entrusted for safe keeping fails to
transport the property entrusted to him to some other place upon the outbreak of
a fire, although able to do so, and such property is destroyed by the fire. Such
person must make good the loss.
788. If the person to whom property has been entrusted for safe keeping mixes such
property without the permission of the owner with other property in such a
manner that it cannot be distinguished therefrom, such person is guilty of
negligence. Consequently, If the person to whom a quantity of gold pounds have
been entrusted for safe keeping,mixes them without permission with gold pounds
of his own, or with gold pounds delivered to him for safe keeping by some other
person, and they are lost or stolen, he must make good the loss. Again, if any
other than the person to whom they have been entrusted for safe keeping so mixes
them, such person must make good the loss.
789. If the person to whom property has been entrusted for safe
keeping mixes such property with the permission of the owner thereof with other
property as is stated in the preceding Article, or if, without any fault on his
part two pieces of property are mixed together in such a way that they cannot be
distinguished the one from the other, as for example, where a purse of money
which is delivered for safe keeping is put in a box and the purse is torn and
the gold coins therein are mixed with other gold coins, the person to whom they
have been entrusted for safe keeping and the owner become joint owners of the
total amount of such coins in proportion to their shares. In these
circumstances, if the coins are destroyed or lost without fault or negligence,
there is no need to make good the loss.
790. The person to whom property has been entrusted for safe
keeping may not transfer such property for safe keeping to any other person
without permission. If he does so, and the property is destroyed, he must make
good the loss. If the property is destroyed owing to the fault or negligence of
the second person, the owner of the property may at his option claim to have the
loss made good from either the second or the first. If he recovers from the
first person, the latter has a right of recourse against the second.
791. If the person to whom property has been entrusted for the
safe keeping deposits such property with some other person, and the owner of the
property adopts the transaction, the first person is replaced by the second.
792. The person to whom property has been entrusted for safe
keeping may, with the permission of the owner thereof, use such property or let
it on hire, or lend it,or give it on pledge. If he does so without the
permission of the owner, however, and such property is destroyed or lost while
in the possession of the person taking it on hire, or the borrower, or the
pledgee, or the value thereof is decreased, the person to whom the property has
been entrusted for safe keeping must make good the loss.
793. If the person to whom money has been delivered on trust lends and delivers such
money to some other person without permission, and the owner thereof does not
adopt such transaction, the person to whom the money has been entrusted must
make good any loss incurred. Again, if he repays a debt owing to some other
person who has entrusted money to him out of such money, and the owner does not
agree, he must make good the loss.
794. Upon the owner of the property entrusted for safe keeping
asking for the return thereof, such property must be restored to him. Any
charges and expenses occasioned thereby must be borne by the owner of the
property. If the owner asks for the return of his property and the person to
whom it has been entrusted fails to restore it to him, and the property is
destroyed or lost, such person must make good the loss. But if the property is
not restored by reason of some lawful excuse, as for example where the property
is in some remote place when its return is asked for and it is destroyed or
lost, there is then no liability to make good the loss.
795. The person to whom property has been entrusted for safe
keeping may restore such property himself or by means of some person on whom he
relies. If he returns the property through the latter, and before delivery to
the owner, such property is destroyed or lost without any fault or negligence,
there is no liability to make good the loss.
796. If two persons who are joint owners of various pieces of
property deposit such property with any person for safekeeping, and one of the
joint owners, in the absence of the other, requests delivery of his share from
such person, the latter may restore to such joint owner his share of the
property, providing they are things the like of which can be found in the
market, but not otherwise.
797. The property delivered for safe keeping must be returned at
the place where it was handed over for safe keeping.yvT A Example:- Goods handed
over for safe keeping at Constantinople must be returned in Constantinople. The
person to whom they have been entrusted cannot be obliged to hand them over to
adrianople.
798. Any usufruct of the property deposited for safe keeping
belongs to the owner.yvT u Example:- The, or the milk or the wool of an animal
handed over for safe keeping belongs to the owner of such animal.
799. If a person who has deposited money for safe keeping is
absent, any person dependent upon such person for support may apply to the Court
for an order that a certain sum may be set aside therefrom for him; and if the
person with whom such money has been so deposited pays such to him by way of
maintenance, he is in no way liable. He is liable, however, if he does so
without the order of the Court.
800. If the person to whom property is entrusted for safe keeping
goes mad, and there is little hope of his recovery, and if the thing deposited
for safe keeping prior to such person's madness is itself no longer in
existence, the owner of such property may, upon producing a reliable guarantor,
have the loss made good from the mad person's property. Should he recover from
his madness, however, and allege that the property deposited has been returned
to the owner thereof, or that such property has been destroyed or lost without
any fault or negligence on his part, and should such statement be confirmed on
oath, the money which has been taken must be returned.
801. If upon the death of the person to whom a thing has been
entrusted for safe keeping such thing is found among the estate of the deceased,
it is held on trust by the heir, and must be returned to the owner. If it cannot
be found in the estate of the deceased person, however, and the heirs are able
to prove that such person during his lifetime had stated that he had returned
such thing to the owner thereof, or that it had been lost without any wrongful
act on his part, there is no need to make good the loss.
Again if the heirs state that they know the thing that was handed over for safe
keeping, and describe it, and allege that it was lost after the death of the
person to whom it had been entrusted, without any fault or negligence on their
part, and such statement is confirmed on oath, there is no need to make good for
the loss. If the person to whom the thing has been entrusted dies without making
any statement as to the condition of the property entrusted to him, the value
thereof must be paid out of the estate, in the same manner as other debts.
Similarly, if the heirs fail to describe the thing which has been entrusted for
safe keeping and merely state that they know of such thing and that it was lost,
such statement, unless proved, is of no effect, and the value of such thing must
be paid from the estate.
802. Upon the death of the person who has entrusted a thing for safe keeping, such
thing must be handed to the heirs. If the estate is overwhelmed with debts,
however, the matter must be referred to the Court. If the matter is not so
referred, and the person to whom such thing has been entrusted hands it over to
the heirs, who consume the same, the person to whom it has been entrusted for
safe keeping must make good the loss.
803. Should it be necessary to make good the loss of the thing
entrusted for safe keeping, and such thing is one the like of which can be found
in the market, a similar thing must be given. If it is a thing the like of which
cannot be found in the market, the value of such thing at the time it was lost
must be made good.
CHAPTER III. PROPERTY LENT FOR USE.
SECTION I. THE CONTRACT OF LOAN FOR USE AND CONDITIONS RELATING THERETO.
804. A contract of loan
for use is concluded by offer and acceptance and by conduct.yvT W Example:- A
tells B that he has lent him certain property for use or that he has made him a
loan for use and B accepts, or without making any statement takes such thing. A
contract has been concluded for a loan for use. Again, A asks B to lend him
certain property to use and B lends him such property. A contract of loan for
use is concluded.
805. The silence of the person giving the loan is not considered
to be acceptance. Consequently, if one person asks another to lend him a thing
for use, and the owner of such thing keeps silence, and the other takes it, such
person becomes a person wrongfully appropriating property.
806. The person lending the thing for use may at any time
withdraw from the contract.
807. A contract of loan for use is cancelled upon the death of
either the person giving or the person taking the thing on loan for use.
808. The thing given of loan for use must be capable of
enjoyment. Consequently, the giving or taking of a runaway animal on loan for
use is invalid.
809. The person giving and the person taking a thing on loan for
use must be of sound mind and perfect understanding. They need not have arrived
at the age of puberty. Consequently, a madman or a minor of imperfect
understanding cannot conclude a valid contract for giving or taking a thing on
loan for use. A minor who has received permission from his tutor, however, may
do so.
810. Taking delivery is essential to the validity of a contract
of loan for use. The contract is devoid of effect before delivery.
811. The thing given on loan for use must be clearly defined.yvT
Example:- A contract is concluded for a loan for the use of one of two horses
without stating which one or without giving an option for selection. The
contract is invalid. The person making the loan must state which one he gives on
loan. But if he gives the person taking the horse on loan the option of
selecting whichever one he likes, the contract is valid.
SECTION II. EFFECT OF A CONTRACT OF LOAN FOR USE AND COMPENSATION FOR LOSS
SUSTAINED IN CONNECTION THEREWITH.
812. The person to whom a thing has been lent for use becomes owner of the
usufruct thereof without giving anything in return. Consequently, the person
giving the thing on loan cannot demand any payment from the person taking such
thing on loan after he has used it.
813. The thing lent for use is on trust while in the possession
of the person to whom it has been lent. If it is destroyed without any fault or
negligence, or if the value thereof is decreased, there is no need to make good
the loss. Examples:-
(1). A person to whom a mirror has been lent for use accidentally drops it or
slips and knocks it with his foot and it is broken. There is no need to make
good the loss.
(2). A carpet lent for use is accidentally stained by something dropping on it
so that its value is decreased. There is no need to make good the loss.
814. If the thing lent for use is destroyed or the value thereof
decreased owing to any fault or negligence, or for any reason whatsoever on the
part of the person receiving such thing, the loss must be made good. yvT -
Examples:-
(1). An animal is lent to A to go to a certain place with the proviso that he
shall take two days to reach that place. He arrives there in one day and the
animal is destroyed or is rendered so weak that its value is diminished. A must
make good the loss.
(2). A borrows an animal to go to a certain place. On arrival there he continues
his journey on the animal and it dies a natural death. A must make good for the
loss.
(3). A borrows a necklace and puts it round the neck of a child. A leaves the
child without anyone to look after it and the necklace is stolen. If the child
is able to look after the thing which it is wearing, there is no need to make
good the loss, but if the child is incapable of doing so, the loss must be made
good.
815. Expenses occasioned by the upkeep of the thing lent must be
borne by the person to whom it is lent. Consequently, if the person who borrows
an animal fails to provide fodder for such animal and it dies4s, such person
must make good the loss.
816.In the case of an absolute contract of loan for use, that is to say, when
the person granting the loan makes no stipulation as to time or place or the use
to which the thing lent is to be put, the person borrowing the thing may use
such thing at any time or in any place he wishes, subject, however, to
custom. Examples:-
(1). A lends B his horse absolutely as stated above. B can ride the horse
whenever he likes, and to whichever place he likes. He may not ride it to a
place in one hour, however, which by custom takes two hours to reach.
(2). A lends B the room of an inn absolutely. B may, if he wishes, live in it or
store goods in it. But he may not, contrary to custom, carry on the trade of a
blacksmith therein.
817. If the loan for use is restricted as to time and place, the
restriction is valid and the person to whom the loan is made not act
contravention thereof.yvT £ Example:- An animal borrowed for riding for a period
of three hours, may not be ridden for four; and an animal borrowed to go to a
specific place may not be taken to some other place.
818. If the loan for use is restricted as to the use to which it
may be put, the person to whom it is lent may not put it to any more exacting
use. But if it is out to a similar or less exacting use, the breach of the
restriction is valid.yvT b Examples :-
(1). An animal is borrowed to carry a load of corn iron or stone may not be
loaded on him. A load equal to or lighter than the weight of corn may, however,
be loaded on him.
(2). A load may not be placed upon an animal which has been borrowed for riding.
An animal which has been borrowed to carry loads, however, may be used for
riding.
819. If the person making the loan makes it absolutely, without
specifying the person to whom it is lent may use it as he likes. That is to say,
he may use it himself or he may lend it to another person to use, and this,
whether the thing lent is one which is not changed by the person using it, such
a room, or one that is so changed such as a horse for riding.yvT + Examples:-
(1). A tells B that he has lent him his room. The person to whom the room is
lent may either live in the room himself or let some other person live therein.
(2). A tells B that he has lent him a certain horse. B may either live in the
room himself or let some other person ride him.
820. The person who is to enjoy may validly be specified in the
case of things which change with the change of persons using such things. This
is not the case with things which do not so change. If the person making the
loan, however, states that it is not to be given to any other person, the person
to whom such thing is loaned may not under any circumstances cause it to be used
by another.yvT ^ Example:- A tells B that he has lent him a certain horse to
ride. The person to whom it is lent may not give it to his servant to ride. But
if A tells B that he has lent him a room in which to live, B can live in it
himself or let some other person live in it. He may not do so, however, if A has
told him not to allow any other person to live there.
821. If an animal is borrowed to go to a certain place, and there
are several roads leading thereto, the borrower can proceed along whichever of
the roads he likes in accordance with custom. But if he proceeds along a road
which it is not customary to use, and the animal is destroyed, he must make good
the loss. Again, if the borrower uses a road other than that prescribed by the
lender and the animal is destroyed, the borrower must make good the loss if the
road used by him is longer or less than that prescribed by the lender, or not
customarily used.
822. If a person asks a woman to make him a loan for use of a
thing which is the property of her husband, and she gives such thing on loan
without her husband's permission, and it is lost, there is no need for either
the woman or the borrower to make good the loss,if it is one of those things
which are found in the wombs@s quarter of the house, and which by custom is in
the possession of the wife. If the thing borrowed is not one of such things,
however, but is a thing which is not in the p[possession of woman, such as
horse, the husband ma, at his option, have the loss made good by the wife or the
borrower.
823. The borrower may not give the thing borrowed on hire, nor
pledge it without the permission of the lender, nor may the borrower pledge a
piece of property which has been lent to secure a loan in one town as security
for a loan in another town. If he does so, and the thing lent for use is
destroyed or lost, the loss must be made good.
824. The borrower may deposit the thing borrowed for safe keeping
with some other person. If it is destroyed without any fault or negligence while
in the possession of the latter, there is no need to make good for the loss.yvT
Example :- A borrows a horse from B for the purpose of going to and returning
from a certain place. Upon arrival at that place, the horse is found to be tired
and unable to proceed, and B entrusts the horse to C to mind. Later the horse
dies a natural death. A need not make good for the loss.
825. Upon the lender asking the borrower to return the thing lent, the latter
must do so forthwith. If he keeps it delays returning it without any valid
excuse and it is destroyed or lost, or there is a decrease in the value thereof,
the borrower make good the loss.
828. A thing which has been lent for use for a definite period of
time, whether express or implied, must be reduced to the lender in the
expiration of such period. But any delay which is sanctioned by custom is
excused.
Examples :-
(1). Ornaments are borrowed to be used on a certain day until the afternoon.
When that time arrives they must be returned.
(2). Ornaments are borrowed to be used at a certain person's wedding. When the
wedding is over the ornaments must be returned. But the time ordinarily
necessary for the return of the ornaments is allowed.
827. If a thing is borrowed for use in connection with any
particular piece of work, such thing, on the completion of such work is regarded
as property entrusted for safe keeping to the borrower. He may not use it in any
way whatsoever and may not retain it for any period longer than is allowed by
custom. If he does so and such property is destroyed, he must make good the
loss.
828. The borrower must return the thing borrowed to the lender
either personally or through some reliable person. If he returns such thing
through a person who's is not reliable, and it is destroyed or lost, he must
make good the loss.
829. Things borrowed for use which are of great value, such as
jewels, must be returned to the lender personally. In other cases, however, it
is sufficient to return them at the place where it is customary to do so, or to
deliver them to the servant of the lender. Example:- Return of an animal
borrowed for use may be effected by delivering it at the stable of the lender or
by handing it over to him groom.
830. Upon the return of a thing borrowed for use which is in the
possession of the borrower, all expenses occasioned thereby, including cost of
transport, must be borne by the borrower.
831. A piece of land may validly be lent for use for the purpose
of erecting buildings or planting trees. The lender, however, may at any time go
back on the loan and oblige the borrower to pull down the building goes or
uproot the trees. However, if the loan is for a definite period, the lender must
make good the difference between the value of the buildings and trees they were
pulled down or uprooted and what would have been the value thereof at the end of
the period, had they remained standing.yvT c Example:- Should the pulled down
and uprooted value of buildings and trees which are pulled down and uprooted
forthwith be twelve gold pounds, and the value thereof if left standing up to
the end of the period be twenty gold pounds, and should the lender cause them to
be pulled down or uprooted forthwith, he is obliged to pay a sum of eight gold
pounds.
832.If land is lent for cultivation, whether for a fixed period
or not, the lender cannot withdraw from the contract and demand the return of
the land from borrower before the harvest.