the recipient, such a transaction would in no sense be a bailment, but is a sale or exchange.22 Sale on Approval-Sale or Return Finally, in this connection should be noted the so-called "sale on approval." Here goods are delivered to a party, but title to the goods does not vest in him until he has in some way manifested his approval. The result is that such person acquires possession forthwith, while he may or may not acquire title by his approval at a later date. It is therefore clear that such a transaction is not in its inception a sale at all, but a mere bailment, and remains such until it is converted into a sale by the approval. The so-called “sale on approval" is therefore a mere bailment, with the option in the bailee by his approval to convert the bailment into a sale.23 When, however, the title passes immediately, but the buyer has the option to defeat the sale by returning the article, this is a sale. originally and not a bailment. This is usually called a "sale or return.' "24 CLASSIFICATION OF THE ROMAN LAW 4. According to the classification of the Roman law, bailments were divided into six kinds: (a) Depositum. (b) Mandatum. (c) Commodatum. (d) Mutuum. (e) Pignus. (f) Locatio. 22 In regard to the Roman mutuum, Galus says: "This chiefly relates to things which are estimated by weight, number, or measure, such as money, wine, oil, corn, bronze, silver, gold. We transfer our property in these, on condition that the receiver shall transfer back to us at a future time, not the same things, but other things of the same nature; wherefore this contract is called 'mutuum,' because thereby meum becomes tuum." Poste Gaius, III. § 90. 23 Tiffany on Sales, § 45; American Sales Act, § 19, rule 3 (2); Sargent v. Gile, 8 N. H. 325; Goss Printing Press Co. v. Jordan, 171 Pa. 474, 32 Atl. 1031; Hart v. Carpenter, 24 Conn. 427. Where two colts were delivered for keeping, and to be sold by bailee if possible, if not to be returned, the contract was held to be one of bailment. Middleton v. Stone, 111 Pa. 589, 4 Atl. 523. So an option may reside in tho bailor to make the transaction a sale; but, unless the option is exercised, the bailment relation will continue. Weir Plow Co. v. Porter, 82 Mo. 23. 24 Tiffany on Sales, § 46; American Sales Act, § 19, rule 3 (1); Gay v. Dare, 103 Cal. 454, 37 Pac. 466; Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093; Robinson v. Fairbanks, 81 Ala. 132, 1 South. 552, (a) DEPOSITUM-A depositum is a bailment of goods for mere custody, without recompense. (b) MANDATUM-A mandatum is a bailment of goods for the purpose of having some more or less active services performed about them by the bailee without recompense. (c) COMMODATUM-A commodatum is a gratuitous bailment of goods for use by the bailee. (d) MUTUUM-A mutuum is a delivery of goods, involving, not the return of the identical goods lent, but their replacement by other goods of the same kind. At common law, such a transaction is regarded as a sale or exchange, and not a bailment. (e) PIGNUS—A pignus, pledge, or pawn is a bailment of goods as security for some debt or engagement, accompanied by a power of sale in case of default. (f) LOCATIO-A locatio, or hiring, is a bailment for reward, and may be: (1) Locatio rei, or the hired use of a thing. (2) Locatio operis, or hired services about a thing, which includes: (i) Locatio operis faciendi, or hired work and labor about a thing. (ii) Locatio custodiæ, or hired custody of a thing. (iii) Locatio operis mercium vehendarum, or hired transportation of a thing. This classification of the Roman law is unquestionably of great value, though it has been severely criticised and is open to a number of objections. Thus it is not strictly a classification at all, but a mere enumeration of different kinds of bailments, with no attempt to arrange them into classes showing their relations to one another. The Roman classification, too, has been criticised as being unnecessarily refined. It is also true that the distinctions and differences it draws afford no satisfactory test of differences in the legal incidents attached to the various kinds of bailments. The terminology has no doubt resulted with us in some inconsistencies and not a few obscurities. This classification and its terminology, however, have played no small part in shaping and coloring our own law on the subject, so that no writer can afford to ignore it. The relation of the Roman classification and terminology to that adopted by modern writers, as one evidence of the impress of the Roman law on the common law in this connection, will more fully appear as the subject of bailments is developed. MODERN CLASSIFICATION WITH REFERENCE TO BENEFIT 5. The rights and liabilities of the parties to a bailment depend primarily upon which party the bailment is intended to benefit. Bailments may therefore be divided into three classes: (a) Bailments for the bailor's sole benefit, including (1) Depositum, and (2) Mandatum. (b) Bailments for the bailee's sole benefit, including (1) Commodatum. (c) Bailments for mutual benefit of both bailor and bailee, in cluding (1) Pignus, and (2) Locatio. Bailments are sometimes classified as: (1) Gratuitous. (a) Bailments for bailor's sole benefit. (b) Bailments for bailee's sole benefit. (2) Nongratuitous. (a) Bailments for mutual benefit of bailor and bailee. This classification begins where that of the Roman law ends. lt seeks not merely to enumerate or catalogue, but also to arrange, the enumerated classes according to some rational scheme, showing the relations of each class to the others. A basis of classification is therefore sought, not merely because it is arbitrary or convenient, but because it in itself determines the differences and similarities in the legal incidents which the law attaches to bailments. of the classes in question. This basis is found in the practical theory of benefit. Every bailment is created for the sole purpose of benefit to the parties to the transaction. The duties and responsibilities imposed by law upon the bailor or bailee, as the case may be, are accordingly determined by, and are in proportion to, the benefit which such party receives from the bailment. A necessarily exhaustive classification on this theory is therefore made by dividing bailments on the score of benefit into three classes: (a) When the bailor alone receives such benefit. (b) When the bailee alone receives the benefit. (c) When both the bailor and the bailee receive a benefit. This classification is consistent with that of the Roman law, and no class under the scheme of benefit, cuts across any single class enumerated in the Roman scheme. A comparison of the two classifications will show that the "depositum" and "mandatum" confer a benefit on the bailor alone, so they are both (a) bailments for the bailor's sole benefit; the "commodatum" bestows benefit solely on the bailee, so that it falls under (b) bailments for the bailee's sole benefit; the "pignus" and "locatio" contemplate a benefit to both parties to the relation, and they are therefore included under (c) bailments for the mutual benefit of both the bailor and bailee. Gratuitous and Nongratuitous Bailments Bailments are sometimes classified as (1) gratuitous and (2) nongratuitous. By gratuitous is meant gratuitous, on the score of benefit, as to either party. Gratuitous bailments, therefore include (a) bailments for the bailor's sole benefit and (b) bailments for the bailee's sole benefit. Nongratuitous bailments are (c) bailments. for the mutual benefit of both the bailor and bailee. As the general classification of bailments into three great classes on the score of benefit forms the analysis in accordance with which the whole subject of bailments is developed in this book, no further comment on this classification is here required. CLASSIFICATION OF LOCATIO OPERIS BAILMENTS AS ORDINARY AND EXTRAORDINARY 6. Locatio operis bailments, or hired services about a thing, are sometimes classified as: (a) Ordinary bailments. (b) Extraordinary or exceptional bailments. (1) Innkeepers. (2) Common carriers of goods. (3) Post office department. Generally, the question of benefit alone determines the rights and duties of the parties to the bailment relation. There are some bailments, however, in which other considerations enter into this problem. These are bailments of such a character that they are public in their nature and are so closely connected with the interests of the public that the law has seen fit to single such bailments out and to affix distinctive and unusual rights and duties to the relation. Thus the innkeeper and common carrier of goods, in professing to serve all who properly apply, pursue a public calling, while the post office department, charged with the transportation of the mails, is a branch of the government. Public policy, therefore, de |