The Case of the Vanishing Lovers: Bailment and the Burden of Proof‪.‬

INTRODUCTION Being party to a bailment carries useful advantages for the owner of a chattel. Prominent among these is the burden of proof that lies on the bailee. When a bailed chattel has become lost, stolen, destroyed or damaged while in the bailee's possession, and the bailor sues for damages, the bailee must show on the balance of probabilities that the adverse event did not result from any failure on the bailee's part to exercise reasonable care and skill in the custody and management of the chattel. Failure to satisfy the court on this point will by itself (in the absence of some exculpatory term) render the bailee liable. The bailor does not have to adduce affirmative evidence of a want of due care, though it may be wise to bring forward such facts as are within the bailor's knowledge.(1) At the end of the day, however, "The bailee knows all about it, he must explain." (2)