Full question:
My husband and I just recently divorced and he was left to live at our residence for 1 month after I moved out. When he moved out, he took the entire house full of items even though we hadn't split everything yet. Just recently, we had come to an agreeable division of the belongings and I have to pick them up from his residence (I have a restraining order against him). What happens if these belongings are broken in some way or non functioning, since they have been in his possession now for 4 months. What should I do that day or thereafter?
- Category: Personal Property
- Subcategory: Bailments
- Date:
- State: Massachusetts
Answer:
When a person who is not a landlord agrees to hold property for another, a bailment is created. When the person holding the property, called the bailee, is not being compensated, it is called a gratutous bailment and the bailee must use reasonable care to protect the property.
There are different types of bailments- "bailments for hire" in which the custodian (bailee) is paid, "constructive bailment" when the circumstances create an obligation upon the custodian to protect the goods, and "gratuitous bailment" in which there is no payment, but the bailee is still responsible. There is a lower standard of care imposed upon the bailee in a gratuitous bailment, and the parties may contract to hold the bailee free from liability in any bailment. As the law of bailments establishes a lower standard of care for the bailee in a gratuitous bailment agreement, such an agreement or receipt should indicate explicitly that the bailee is acting without compensation. When a bailment is for the exclusive benefit of the bailee, the bailee owes a duty of extraordinary care. If the bailment is for the mutual benefit of the bailee and bailor, the bailee owes a duty of ordinary care. A gratuitous bailee must use only slight care and is liable only for gross negligence. To create a bailment, the alleged bailee must have actual physical control with the intent to possess. Physical control and intent to possess will be interpreted according to the expectations of the parties. If a court thinks that liability would be unexpected or unfair, it can usually find that the defendant did not have “physical control” or “intent to possess.” For example, courts are more likely to find a bailment of a car exists in a garage with an attendant than in a park and lock garage.
If you believe your property was damaged, it may be possible to bring a civil claim for damages. A civil claim for damages to personal property may ask for compensation to repair or replace the property with comparable property at fair market value. A civil claim for damages is not designed to punish the wrongdoer.
Whether the property was damaged intentionally or through negligence may be a factor. You may want to produce evidence, such as photographs, of the condition of the property before and after the damage. It may be possible that an insurance claim may be made on any damaged property.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
