———— Part
may
.
.
Gratuitous Bailment.
II.
becomes responsible
bailor, lie
which
—
any subsequent
for
537 loss or
damage
be caused to such chattel by his unwarranted act
Sect.
2.
Mandate.
(n).
1093. As a general rule, a mandatary is bound to redeliver to Duty to his principal the chattel intrusted to him upon the fulfilment of letum. but if it has been destroyed the purpose for which he received it or damaged without any default on his part, he will in the absence of special contract or some positive rule of law be exempt from any claim for damage or non-delivery (o).
Sub-Sect.
Delegation hy Mandatary,
3.
1094. There is, as a general rule, no power of delegation in the contract of mandate, the legal presumption being that the undertaking is personal to the mandatary and cannot be by him handed But where in the ordinary course of business over to another the custody w^ould naturally devolve upon, or the acts be performed by, some servant or agent of the mandatary, delegation is perAnd in such a case the bailee is not liable if any loss missible {q). or damage happens to the chattel during the period of delegation, without any negligence on the part of his substitute (r). Sub-Sect,
Delegation,
Obligations of the Mandator.
4.
1095. A mandatary is entitled to his actual disbursements and Reimburseout-of-pocket expenses in connection with the service, as otherwise ^^nt. a gratuitous act would become a burden (s) Sect.
3.
Gratuitous
Sub-Sect.
1.
Loan for
Use.
In General.
1096. In depositum and mandatum the bailor has all the advan- Commodatum. In commodatum, however, the reverse is the tage of the bailment. Commodatum is a bailment where a chattel is lent by its case. owner to the bailee for the express purpose of conferring a benefit upon the latter, without any corresponding advantage to its owner. By our law this contract is confined to goods, chattels, or personal contract conproperty, and does not, as under the civil law, extend to real fined to estate {t). The loan of the use of real estate or chattels real is no ^hatS^ more than a licence beneficially to occupy a tenement or other hereditament belonging to the licensor for a particular or indeterminate period (u). Consequently there can be no bailment of a structure affixed to real property (x) (n)
Nelson
v.
Macintosh (1816),
1
Stark. 237
Milesv. Cattle (1830), 4 Moo.
&
P.
630.
Story on Bailments, s. 25. (p) Bringloe v. Morrice (1676), 1 Mod. Rep. 210. {q) Lord Camoys v. Scurr (1840), 9 C. & P. 383, where defendant, having received a mare to try, was held, per Coleridge, J., at p. 386, entitled to put a competent person on the mare to try her. See also title Agency, p. 170, ante. (o)
(r)
Ibid.
(s)
Story on Bailments,
(t)
Ibid.,
(u) (x)
s.
s.
154.
223.
Williams
Quarman
v.
v.
Jones (1865), 11 Jur. (n. s.) 483. Burnett (1840), 6 M. & W. 499 per Parke, B., p. 511.
