Lending Liability
The Basic Requirements of a Freegle Group state that it is a Highly Recommended policy for local groups to not allow messages asking to borrow items.
This page is not about the pros and cons of lending and or borrowing, either in general or via Freegle groups. It's about whether or not Freegle groups have a responsibility to inform their members of a risk they may not be aware they are taking. This page outlines advice received informally from friends in the lead profession.
Example to illustrate liability:
- I ask to borrow a lawn mower.
- You lend me a lawn mower.
- I use the mower to cut my lawn.
- The mower leaks oil over my lawn.
- The oil damages the lawn.
- If the oil leaked because you, as the owner of the lawn mower, did not maintain the mower in a fit for use condition, (and did not tell me that it would leak oil over my lawn if I used it), you are potentially liable for the damage down to my lawn.
This is because:
- When you lent me the mower, it was reasonable for me to assume that it would be safe for me to use the mower to cut my lawn.
- If the mower should have been serviced and, say, the oil seals should have been replaced, the failure to properly service the machine is what has caused the oil leak and the damage to the lawn. And it is the owner who is responsible for maintaining the machine. Which is why you could be held liable for the damage to my lawn.
- If I misused or damaged the mower then the damage to mower and lawn would be my responsibility.
- If the leak was just an accident then neither of us would be to blame.
By way of comparison:
- If you had given me the mower for free, then as the new owner I would be responsible for maintaining the machine, for doing the service and for replacing the oil seals.
- Furthermore, if I attempted to sue you for supplying me with a damaged machine, the most I could do is ask for my money back (except in this example you gave it to me for free).
So why should Freegle care about this liability as it would be a matter for the lender and the receiver to settle between themselves?
- The argument that Freegle isn't involved is in fact quite strong. Because it is not reasonable for the lender or the receiver to believe that Freegle checked that the mower was fit for purpose.
- However, as group owners we might feel we have responsibility to protect the interests of our members if we know something they don't.
So what should happen about informing group members about this liability (assuming groups decided to allow borrowing requests)?
- Assuming groups feel they have a responsibility to protect the interests of their members, then they need to be clear that it is not the same as giving something away for free.
- Freegle nationally should inform Freegle volunteers about the potential of liability to lenders so that they can make an informed decision about allowing borrowing requests.
To clarify, our understanding of the liability of Freegle, group teams and individual volunteers is
- There is no contract between Freegle and its users, and therefore no general legal liability.
- There is no Duty of Care. A Duty of Care arises where someone is (in legal terms rather than geographic) in close proximity, and the risk is reasonably predictable. Freegle is not in close proximity to its users, and does not have reason to believe that most things lent are in any sense dangerous and therefore that there is a significant general risk.
- Having something which encouraged lenders to ensure items were fit for use would not incur any additional liability for Freegle or its volunteers, and could be helpful in preventing nuisance claims. Any groups that allow lending should let their members know of this aspect of lending.
- The Board made a strong recommendation 23.3.16 on Central to groups that allow lending or borrowing to inform their members of potential liability [1].
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