Bailment

Bailment describes a legal relationship in common law where physical possession of personal property (chattels) is transferred from one person (the 'bailor') to another person (the 'bailee') who subsequently holds possession of the property. However, it is distinguished from a contract of sale or a gift of property, as it only involves the transfer of possession and not its ownership. In order to create a bailment, the bailee must both intend to possess, and actually physically possess, the bailable chattel.

In addition, unlike a lease or rental, where ownership remains with the leasor but the lessee is allowed to use the property, the bailee is generally not entitled to the use of the property while it is in his possession. Moreover, unlike a security agreement or pawn at a pawnbroker, where the secured party is entitled to the possession and use of the property only on default of payment, a bailor can demand the return of the property at any reasonable time, without prior notice. A common example of bailment is leaving your car with a valet. Leaving your car in a parking garage is typically a license, as the car park's intent to possess your car cannot be shown. However, it arises in many other situations, including terminated leases of property, or warehousing (including store-it-yourself).

No matter how a bailment arises, the bailee has both a duty of care and duty to re-deliver the bailment. The bailee is expected to take (as a minimum) reasonable precautions to safeguard the property, although this standard sometimes varies depending upon who benefits from the bailment. In most of the United States, for example, if the bailment is to the primary benefit of the bailor, the bailee must be found grossly negligent in order to be liable for damage done to the bailment, while if the bailee primarily benefits, such as if you borrow your neighbor's rake to clean your lawn, the bailee is liable for any damages arising from slight neligence. If both bailor and bailee are found to benefit from the relationship, such as leaving your clothes at the dry cleaners, then the bailee is only held to a standard of ordinary care. Bailees are typically strictly liable for any mis-delivery of a bailment, although, in the case of involuntary bailments (see below), the bailee is only held to a standard of due care regarding re-delivery. Moreover, a bailee may be liable in conversion if the property is not returned upon the request of the bailor, or if the property is used without permission of the bailor.

Bailment can arise in a number of situations, and is often described by the type of relationship that gave rise to the bailment. Several common distinctions are:

• Voluntary vs. Involuntary. In a voluntary bailment, the bailee agrees to accept responsibility for possession of the goods. In an involuntary bailment, the bailee has possession of the goods without intent to do so. A common situation that creates voluntary bailment is when a person leaves goods with someone for service (e.g., dry cleaning, pet grooming, car tune-up). The bailee must hold the goods safe for the bailor to reclaim within a reasonable time. An involuntary (or constructive) bailment occurs when a person comes into possession of property accidentally or mistakenly, as where a lost purse or car keys are found and need to be protected until properly redelivered -- a bailment is implied by law.
  
• For consideration vs. gratuitous. If a person agrees to accept a fee or other good consideration for holding possession of goods, they are generally held to a higher standard of care than a person who is doing so without being paid (or receives no benefit). Consider a paid coat-check counter versus a free coat-hook by the front door, and the respective obligations of the bailee. Some establishments even post signs to the effect that "no bailment" is created by leaving your personal possessions in their care, but local laws may prevent unfair enforcement of such terms (especially attended car parks).
  
• Fixed term vs. indefinite term. A bailor who leaves property for a fixed term may be deemed to have abandoned the property if it is not removed at the end of the term, or it may convert to an involuntary bailment for a reasonable time (e.g., abandoned property in a bank safe, eventually escheats to the state, and the treasurer may hold it for some period, awaiting the owner). However, if there is no clear term of bailment agreed upon, the goods cannot be considered abandoned unless the bailee is given notice that the bailor wishes to give up possession of the goods. Frequently, in the case of storage of goods, the bailee also acquires a contractual or statutory right to dispose of the goods to satisfy overdue rent; a lawful conversion of bailed goods.

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My daughter orally agreed to allow her ex-husband (divorced in Jan. 2004) to leave some possessions and his cat at her house until he could find a place to stay where he could take them. She is sole owner of the house. There was no court order regarding possessions. The agreement was for an indefinite time period, which I assume would mean "reasonable" time period (whatever that is!). It has been 5.5 years and she has made attempts by e-mail, by phone, and by meeting with him to request that he remove everything. He has come up with one or another excuse. Now, she is moving in Sept. 2009 and cannot take his possessions or cat with her, and he still refuses to take them, and even threatens her with legal action if she gets rid of them. He is not paying her one penny for all the free rental space and cat care she provides him. If she has to store his things and find a foster family for his cat, that will cost her a great deal, which he will not pay. What can she possibly do to get out of this situation? It's become a real nightmare for her.

I'd appreciate any opinions on this.

Thank you.