Where one of two innocent persons must suffer by the act of a third, he by whose negligence it happened must be the sufferer.

Explanation

(English-origin maxim.) Between two innocent parties, the loss falls on the one whose negligence enabled the wrong — applied independently of agency law.

Where this applies

• A bank's negligent failure to verify a forged check allows a thief to drain a customer's account, and because both the bank and the customer are innocent of the theft, the loss falls on the bank whose negligence enabled the fraud.
• A car owner leaves his keys in the ignition and a thief steals the car and injures a pedestrian — between the innocent owner and the innocent pedestrian, the loss falls on the owner whose negligence made the theft possible.
• A homeowner fails to lock a gate, enabling a contractor's tools to be stolen by a trespasser, and as between the innocent homeowner and the innocent contractor, the court places the loss on the homeowner whose negligence allowed the theft.

See also

• 6.1.9 To a willing person, no injury is done.
• 7.2.20 Gross negligence is equivalent to fraud.