Lending Liability
The Community Affiliation Requirements Policy state that it's a Highly Recommended policy for local groups not to allow messages asking to borrow items.
This page isn't about the pros and cons of lending or borrowing, either in general or via Freegle groups. It's about whether Freegle groups have a responsibility to inform their members of a risk they may not realise they're taking. This page sets out advice received informally from friends in the legal 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, didn't maintain it in a fit-for-use condition (and didn't tell me it would leak oil over my lawn if I used it), you're potentially liable for the damage to my lawn.
This is because:
- When you lent me the mower, it was reasonable for me to assume it would be safe for me to use it 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 caused the oil leak and the damage - and it's the owner who is responsible for maintaining the machine. That's why you could be held liable for the damage to my lawn.
- If I misused or damaged the mower, the damage to the mower and lawn would be my responsibility.
- If the leak was just an accident, 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 it, servicing it and replacing the oil seals.
- If I then tried to sue you for supplying a damaged machine, the most I could ask for is my money back (though in this example, since you gave it to me for free, I paid nothing to begin with).
Why should Freegle care about this liability?
Isn't this a matter for the lender and receiver to settle between themselves?
- There's a fairly strong argument that Freegle isn't involved, because it's not reasonable for the lender or receiver to believe Freegle checked that the mower was fit for purpose.
- However, as group owners, we might feel we have a 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 decide to allow borrowing requests?
- Groups that feel they have this responsibility need to be clear that lending isn't the same as giving something away for free.
- Freegle nationally should inform Freegle volunteers about the potential liability for lenders, so they can make an informed decision about allowing borrowing requests.
Our understanding of Freegle's own liability
To clarify, our understanding of the liability of Freegle, group teams and individual volunteers is:
- There's no contract between Freegle and its users, and therefore no general legal liability.
- There's 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 isn't in close proximity to its users, and has no reason to believe that most things lent are in any sense dangerous, or that there's a significant general risk.
- Encouraging lenders to ensure items are fit for use wouldn't incur any additional liability for Freegle or its volunteers, and could help prevent nuisance claims. Groups that allow lending should let their members know of this aspect of lending.
- On 23 March 2016, the Board made a strong recommendation on Central that groups allowing lending or borrowing should inform their members of the potential liability [1].
