Johnson, pp. 30-32: Note on Bailments




(A)   Irene’s best argument is that the bailment was for the sole benefit of Diana, and thus she was liable only for gross negligence.  Irene would argue that this bailment is not a quid pro quo for Diana’s favor earlier in the summer.  Irene would furthermore argue that the loss of the necklace was at most slight negligence because the box could have been stolen off of Diana’s desk just as well as it could have been stolen off of Irene’s desk.  Also, Irene was never even aware of the box because she was out at lunch when it was delivered, transferred, and stolen.  It is not reasonable to expect Irene to hover over Diana’s desk all the time to intercept any letters or boxes that may or may not appear important or valuable.  Thus, she will argue, she is clearly not liable for this loss.  As for the bond, Irene may concede that this would be an example of ordinary but not gross negligence, and thus she is not liable for that loss either.

Diana should argue that the bailment was part of a course of conduct between the two women for their mutual benefit.  She may claim that she held on to Irene’s stuff because she expected Irene to reciprocate.  Thus, Irene would be responsible for the ordinary duty of care.  Diana could then claim that even if the bailment is not for mutual benefit, Irene was grossly negligent in losing the bond.  A reasonable person would know that a “certified-return receipt requested” letter is probably very important and needs to be handled especially carefully.  Diana would not have as strong a case with the box.  She might argue that Irene had a duty to put the rest of the office on notice that Diana’s letters and packages were to remain on Diana’s desk until Irene returned.  This might have prevented the theft.

(B)   If Diana had paid Irene or had bought her a thank-you gift, it would help prove that the bailment was for mutual benefit rather than merely Diana’s benefit.  A cash payment would make the bailment look more like, for example, a business transaction between a consumer and a storage company.  This would seem to be more of a clear cut case of mutual benefit that would strengthen Diana’s arguments.  On the other hand, giving a thank-you gift is arguably more in the nature of a friendly course of conduct between co-workers where each act is voluntary and gratuitous rather than understood as an exchange.


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