lunes, 12 de diciembre de 2011

Bailments in the Anglo-American legislation and similar contracts in the Argentine Civil Code

According to the Anglo-American legislation, a bailment is an arrangement whereby bailor: 1) parts with possession of a given item of property bailed and delivers that item of property to bailee, and 2) retains title to the item of property bailed.

Bailments can fall into three categories:

(a) bailments solely benefitting the bailor;

(b) bailments solely benefitting the bailee;

(c) bailments beneficial to both parties.

(a) An example of this type of bailments can be this: Barbara Bailor leaves her cat with Boris Bailee while Barbara is on vacation; Boris is to take care of the cat, with no compensation expected or received.

This type of arrangement is known as “gratuituous bailment” since this is, in fact, a favor that bailee does to the bailor.

If a comparison were to be drawn between this type of arrangement and the contracts existing in the Argentine legislation, it is the contract of deposit (contrato de depósito) the first legal institution that comes to mind, as defined by the argentine Civil Code in Section 2182, which states that a contract of deposit is entered into when one of the parties undertakes to gratuituously keep an item of personal or real property entrusted to him by the other party, as well as to return the identical property which is the subject matter of the bailment. The main features of the definition are reflected in the case inserted above: no consideration is paid by bailor or received by bailee, and the only party actually benefitting from the arrangement is the bailor.

(b) An example of this type of bailments can be this: Bob Bailor lends his car to Barry Bailee, with Bob neither expecting nor receiving compensation for the “loan”.

Bob Bailor is merely doing Barry a favor (exactly the opposite of the case provided in point (a)), since Barry will benefit from the use of Bob’s car.

In this case, this type of arrangement resembles very much the Argentine contrato de comodato (a contract to lend an item of property to be used by the party to whom it was lent). Section 2255 of the Argentine Civil Code provides that a comodato, i.e. the loan of a thing for use, shall be executed when one of the parties to the contract delivers to the other party any thing not fungible, whether a piece of personalty or of realty, which the party so entrusted will have the power to use.” Again this definition covers virtually all the features of the example provided at the beginning of this point: on this occasion, the favor is done by the bailor, and the bailee is entitled to use the thing that bailor has given him.

(c) An example of this type of bailments can be: goods are left with a firm entrusted to packing and storing them. The bailors pay for the bailee firm’s services.

The Anglo-American legislation treats this case as an example of bailment; for the Argentine legislation, however, this type of cases would deserve a deeper analysis. It is clear that the apparent transaction consists in a services contract (contrato de locación de servicios) with an underlying obligation on the part of the bailee firm to take care of the goods. That underlying obligation of care and custody amounts to –according to the Argentine legislation- merely an obligation inherent in the nature of the services contract and not a contract in itself, as is the case with the Anglo-American legislation.