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    Landmark Cases in the Law of Contract Edited by Charles Mitchell and Paul Mitchell SHART: PUBISHING © OXFORD AND PORTLAND, OREGON 2008 ‘Tel: #1 $08 2673083 o colle: 1} 9009446190 axe #1908280 832 E mai orders@isbs com ‘Website; hep isbs.com Preface ‘essays in the companion volume, Landmark Cases: jion (2006), grew out of papers presenced at a sympositum held at the School of Law, King’s College London. We grate- cases range from the eat ay of contractual doctrines. Some of chem ¢: sdimark status (Smith v Hughes), whilst others argue th it has more to offer than we have previously appreciated (Suisse Atlantiqn among others). Bue the essays all mundane factual situations have frequent rethaps surprisingly, share several common ‘iggered elaborat Van Meirop by arties to be tying to achieve some- thing novel for their contract to become the start of a landmark case. In several cases, 1d chosen co go appropriate. They Hochster v De La Tour) or they might not (Coggs v Barnard) che kind of arguments used as catalysts for change. invocations of the Civil law (Taylor v Caldwell), even if they did not make it to the final draft ofthe judgment (Coggs v Barnard). ‘A further recurrent and fundamental argument has not been uni sally successful, concerns the role of contract law tating, commercial transactions. Some of our eases expressly acknowledge that contract law should fit commercial expectations: Lord Mansfield was probably the most famo exponent of this view (Pillans » Van Mierop, Carter v Boehm, Da Costa wok the same line (Hochster id's innovative approach in lans v Van Mierop was wledged that its decisi decision in The Hongkong Fir priori vi Preface is problem, the contract landscape new landmacks will appear. CHARLES MITCHELL PAUL MITCHELL, Contents Preface Contributors 1 Cogas » Barnard (1703) DAVID IBBETSON 2. Pillans v Van Micro} GERARD MCMEEL 3. Carter Boehm: (1766) STEPHEN WATTERSON 4 DaCosta Jones (1778) WARREN SWAIN, 5 Hochster v De La Tour (1853) PAUL MITCHELL 6 Taylor v Caldwell (1863) ‘CATHARINE MACMILLAN 7 Smith v cas71) JOHN PHILLIPS 8 Foakes » Beer (1884) HABL LOBBAN 9 Hongkong Fir Shipping Co v Kawasaki Kisen Kaisha Led, "The Hongkong Fir (1961) DONAL NOLAN 10. Suisse Atlantique Si Kolen Centrale (196 ROGER BROWNSWORD 11 Reardon Smith Lines Ltd v Yngvar Hansen-Tangen, The Diana Prosperity (1976) MICHAEL BRIDGE 12. Jobnson v Agnew (1979) (CHARLES MITCHELL, sterdamsche 16 d'Armament SA v NV 59 119 135 167 205 223 209 299 32 351 Contributors ‘Michael Bridge is a Professor of Law at the London School of Ecot Political Seience. Roger Browneword is a Professor of Law at King’s College London. David Ibbetson is Regius Professor of Civil Law at che University of Cambridge. Michael Lobban is Professor of Legal History at Queen Mary University of London. Catharine MacMillan is a Senior Lect London. fn Law at Queen Mary University of Gerard MeMeel is a Professor of Law at the Univ: in Law at King’s Donal Nolan isa Law at Worcester College Oxford, Joba Phillips is Professor of English Law at King’s College London. ‘Warren Swain is a Lecturer in Law at the University of Durham, Stephen Watterson is a Senior Lecturer in Law at the University of Bristol 1 Coggs v Barnard (1703) DAVID IBBETSON N: APOLOGY IS needed whole subject of bi the Law of Bail ical status as the fons et origo of demanded of a bailee was thoroughly esta published the first edition of his Leading Cases in the Common Law: istmerely asa Jusking,behind Smith’ the Common lawyer, that Holt CJ's expo | more radical than the articulation of principles which were already in some way i immanent in the earlier case-law. Its status as a leading case depends not only | nits formulation of rules which have now survived for three centuries, but also i on its scouring aveay of a mass of confusing material which had buile up ovce the previous 400 years or more. The present paper is an attempe to understand how this occurred, Ie will ist examine and contextualise the arguments of counsel and the three puisne adges, Gould, J], show developed 2 David Ibbetson therefore, were the arguments of counsel and the puisnes. Hole CJ approached the question very differently, giving less weigh to the easlier authority and instead choosing to bring a measure of coherence to the law by subdividing the types of bailment and fitting them into a principled fraenework, The paper witl focus not so much on what he did as on how he did i. Sucviving in the British Library i Hol’ own daft of his judgment as it was worked and reworked! and this will be compared with the report ofthe judgment as it appears in pri in Lord Raymond’s Repors* o a The facts of the case, deducible ftom the pleadings,” are more orl pleadings,” are more o less unprob- lemati. The defendant, William Barnard, undertook to cacry several barcels of brandy for the plaintiff, John Coggs, from cellar in Brooks Market, Holborn, to another in Water Street, some half a mile away just south ofthe Strand. In the o the Water Street cellar one barrel was staved, and ‘onto the roadway. According to the pleadings the amount lost was 150 gallons, though the version repraduced by Salkeld refers to 130 bores. 1 scems likely thatthe later is a more accurate reflection of the actual amount lost: the market price of brandy ae chs time was in the region of 10 shillings per gallon,* but the damages were ultimately assessed et only £10, rather closer to the value of 150 botres. Faced with this loss, Coggs brought an eon the ce asin Bara aleingtat he had deta tocar he arvels but, through his negligence, had caused one of them to be damaged ani the contents spilled. mm It's possible to penetrate a litte further into the circumstances surrounding the case by trying to identify the dramatis personae, though, since the accident behind the litigation was so uterly commonplace that it has left no trace on the historical recotd, any conclusion mast be very tentative, We might plausibly ‘guess that che plaintiff was the goldsmith banker John Cogs, whose business was run from the King’s Head on the Strand, just on the south-west corner of ly wealthy to have been pos- Chancery Lane.’ He would have been suffc st0Bolle set, which soe leaps easy to read, bu ny che work ofthe [awe School MS ardent lawyers 1 United Seetes of Amerie. Par 3558-1902 (London, Seken Society, 190) 7 PROKB 1225 ma3s (in J Hae and os of rls Legal History (Lon Barterworth, 1986) 370} Cogesv Bernard (a above 3 Lod Rayin 2 Sak 735,31 Bae P63 c sy 163, SZER 6252 Salle 735, rss, 1935) 127; ton, Kent & Co, ip, 1490) 39-4, IC Shall ond Tate of Ol London ad Cogs Barnard 3 sessed of several casks of brandy," and Water Strect, where the accident occurred, would have been only a couple of minutes walk from his place of ‘work, The defendant, William Barnard, is less easy o identify, but he may well, have been the fshmonger’s porter of that name, ofthe pacish of Se Dunstan’ in the East, who died in February 1706." Iso, he was literate enough to be able vo sign his own will. He was hardly rich, bur was by no means a pauper: he lee legacies of 20 shillings to each of four siblings and a niece, with a further one to another nicce. ‘The rest of his estate went to his widow. We are not ue was, but it was clearly sufficient for him to enjoin her in due time to pay out £10 to provide an apprenticeship for one William Turner, a child for whom he seems to have assumed guardianship obligations. There are hints in the reports of Coggs v Barnard that he had servants who might have been responsible fr the accident, soit may be thar he was in business in a small way. It's easy t0 see Coggs v Barnard as a case in which a substantially wealthy man ‘vas suing a telatvely poor one, but Cogas himself may have been beginning to fall into financial difficulties. Within a few years his goldsmith’s business had failed and he and his parenet had been adjudged bankrupt? Moreover, in Hilary Term 1703 process was served on him by the former manager of a brass wire works, of which he was the principal partner and treasurer, After several igation this resulted in an award in the sum of over £5000. ident was unremarkable, the parties unremarkable. When the case came up before Holt CJ at the London Guildhall early in 1703, chere is nothing to suggest that it was seen as anything other than the most routine pice of liti= zation. The trial dy took place, the jury found a verdict for the plaintiff, and damages were assessed at £10. The defendant, hoping no doubt to be able ro avoid having to pay this sum, raised a motion in arrest of judgment, presumably on the technical ground tha the plainsifs claim had been improperly pleaded. "Thus it was thatthe leading case was conceived, We have only a very scrappy note ofthe arguments of counsel,™ but we can hae chore were three relevant issues. First was Whether the plain- lege cther thatthe defendant had received some con- sideration, or alternatively that he was a common porter—ie a person who rade his living as a porter—in which case consideration would be presumed. If it were held that such an allegation was necessary, the second question would © Moe key, since the quand dypsomacise, be sight have been buying ie other than in ape ie was 3 donmer ‘Warden of the Goldsmichs' Company and rember of is i A List of the Cou of Aasstants and Liverymen ofthe Worshipfad Company of Tanbeth Palace Libracy, VI9SO€ YE94/09 (il admitted co probate), ‘VHI983 £76 (noe of probs) "© Sear 8 Anne © 25 (1703) Ballo Coggs (1710) 1 Brown PC 140, LER 471; Ball» Lord Lenesborough ER 80, sBeowa PC 4 David lbbetson then arise: whether, properly analysed, the co in fact contain sufficient indication of consideration or something equivalent to it. The third issue was, was strictly liable for damage or liable only for his negligence. Alchough formally unrelated to the es s, there was a ‘measure of overlap in substance, since on some line: the appropri- ate test for liability might have depended ot not the defendant had received consideration. The issues were not easy to resolve but, importa the arguments of counsel was that ithority and principle. The by reference 0 attempt was made to engineer a break nthe law of bail ments on a new for - ist argument itis necessary to sketch in a bit of history on the case had emerged in of the 14th century a8 the frame a elaim based ) on the misperformance of propriate for cases of contractual non the carly years of the 16th century this restriction was ind, taking on the name of assumpsit, the ation on the ease became | form of action to complain of any beeach of a contract not under seal. Although the form of pleading was the same for misperformance and for xformance—an allegation that the defendant had assumed and promised to do something but had then either done ie badly or not done it at all—by the end of the 16th century it was coming to be recognised that the cwo types of claim were analytically distinct. This was very clear from Posiney v Walton in was held thar in an action of assum suggestion that in a claim for contractual misperf ‘owtney v Wal acceptability of the action without any misfeasance rather than pure nonfea- legation of consideration could be found in the printed Register of Writs. Holt CJ, though, claimed that ‘by longand ancient practise’ these cases had not been followed; and in the leading case of misper- ns (Oxford, Ondo owines 1 Won (197) 1 Ro Abr 10 (ake ad Miso, Sources of Engh Legal History above) 370) sie 2 Region Onn » BLMS Add 325 Coggew Barnard S formance by a cartier, Mors » Slue—whose pleadings were said ro have been dafted by the leading pleader of the time—ic was noted that reference had been made explicitly tothe payment which was to be eceived for the carriage.” ground on this 's plea of not guilty (rather than non gt have suggested that he coo had accepted that the claim was tortious rather chan contractual. Drawing the apparently orthodox di the claire) had been founded upon the might have been an objection, but is upon the neglect" Hole Cj, argument, was less convinced: there was no reason why the count should nat have followed the normal co there had been some payment made by way of consi he was noc acting gratul ‘consideration had been agreed. This had been held to be so in the case of tion (by Holt CJ, once agai at the trial that he was, burin the argument in arrest of judgment this could only ‘appeared as a matter of record or could be deduced from ed that the verdict in the plaintifs favour must indicate that the defendant was a common porter, not ‘0 see how such an inference could have been drawn, and it may be that we (or the reporter misunderstood) the point that was being made. ; no more is heard of fertile, He argued thatthe pleadings did infact show that thes [Ble it upon the contract or neglect itis a good [eount] for whenever isa trust reposed todoan act the law his appears to have been intended as an extension of his previous argument: just et would have had a quanturn meruit for his labour if no sideration had been agreed, so would any person who had been entrusted wi task. On the face of this was unsustainable, since wenobody wi ever agree to do something for another out of simple generosity”; but the use of 2% Cogge v Barnard (1 shove) 2Loed Rapin S08, 920; LER 107, 14 2» LI MS Coxe 6439. The exte ced was Nicholle Mo LIMS Coxe 439,35. LEMS Coxe 6439 boone cariage by 20 brie note he a language of trust in formulating it provided to use their imaginations in manipul the plaincifs| ing to one side the judgment is possible to see the three n differenc ways to these arguments. Powys J appears lowed the primary argument ofthe plainsff’s counsel that the claim ‘was not based on the contract but on the neglect. The rather lapidary note of his judgment reported by Lord Raymond—Powys agreed upon the neglect”™ helpful, but it points in cis directions and according to scripe report, he referred to the precedents cited from focusing on the defendant's default and drew the the Year Books between cases o and cases of misperformance wl latter point is needed to focus ch were” Only a arply onto Coggs v Barnard: cases 1c absence of consideration, while in cases rement. Since this was a case of mis- performance, the lack of an allegation of consideration was not fatal, Gould J was mote hesitant, but the thrust of his judgment was on rather the same lines, draw ion between misperformance and non- performance. Whether or not the defendant was a common tradesman, where the goods were lost or damaged through his gross neglect" he was he had not received any consideration, had been reposed in iff's counsel's argu- the under- ight was put on the undertaking.” Ww he turned to principle. Here he the actions lay in the undertaking.” Still, could be drawn between cases of non-performance and ceases where the defendant had taken goods into his custody; would consideration be required. Like Gould J, he justified absence of consideration by pi Faced with this indeterminacy in the case- be more dogmati tard (nL above} 2 Lord Raye 908, 910; 92 ER 107, 108 210 he dlferenceberween neglect and gross neglect sce below 14-16, dove) 2 Lord Raym 98, "YB M3 Ew 1133 p38, YB H19 Hea Vi49 pl; YB 2 Hen pls; YBP7 Hea lv 14 phys. : (Comes v Bernard (0 bore) 2 Lord Raym 908, 910; 92 BR 107, 108 Coggs » Barnard 7 yet another way. Drawing che analogy with warranties, which wer ‘without any consideration, he argued that it was only because the pl relied on the defendant's warranty—presumably that he would take care—that usted the defendant with his property: in you, upon your undertaking, we my action.» cences in nuance, it is not difficult co see chat che three judg- pon the arguments addressed to them by counsel in Common-law authority. argument in arrest of judgment was specific to the law elating 10 Taw nthiatea wa problem wesercedingl i arose because of the clash of two. dle of the 14th century, it was cles ; ase hich we may solely teat a8 uncquivocl Aepended on therhavng Seen some faulon the parvo the defendan.>*thoush in cases involving bailnents ful was connmony Tnked not to any objective standard of behaviour but to the Se ie the ailed prope ashe dd of hs own goods From the mide ofthe ith on Paar elegant : ‘was seen as strict, in the sense that the alo achieve the result contracted for ules fed se of rexognied cucumstances fhe plan, and at ofa hid pasty any action) acont defendant was he was excused by one of a rela (roughly speaking, act of Ge liability rule ‘would be applied unless the pasties had agreed on something else. In the 16th century, chings had got more complicated. The primary cause of this was the extension of the action on the case to contractual non-performance. ‘As has been soen above, this caused claims for misperformance and non- performance to flow together and as assumpsit adopted the strict ction tothe Law of 163, YBM 9 BdwV 0 pl 2; YB'T 3 Hen VIU4pLi6. 8 David Ibbetson mediaeval law there was a tendency for the bailee's lab Pulling in the opposite direction, around 1530 Christopher Se German had attempted £0 give more shape ro the baile’ and framing the defa: ies wanted a diffecent rule they should agree it expressly. Cutting across these two competing rules was the question whether it made any there arose the eviden- tiary question of what exactly constituted an agreement on a special term in cases where there was no written contract. The matter was discussed in two inconclusive cases in the late 16th century, Woodlife v Curtis and Mosley » ‘was only in Southcotev Bennet in 1601 that i received a full air- was argued thar the distinction should be drawn between cases where the defendant hed simply underaken to look afer sting and eases where he had undertaken to keeD its look after it salvo er secure. This might have made good sense as a matter of logic, the undertaking to keep the thing secure being Southcote’s ease was cited in argument in note is too brief ar chis point to be certain what was said about it PCa Lier §9b a2 above Coggsy Barnard 9 difficult to guess. Plaintiff's counsel would have wanted ro follow the d thereby imposing a rale of strict liability on the defendant; defendant ‘would have urged the court to depart from it. Each of the puisne judges dealt swith the point by disea nself from Southcote’s case. For Gould J it was ‘a hard case indeed?, and ‘no man chat was not a lawye ‘on a special term; for Powys, previous au know that he ha ‘or damage.*| Gould J argued that but ifthere was a special ter rule which had been argued for bat bailee agreed ro keep goods safely he would be liable for any Toss or damage tunless he could bring himself within one of the excusatory ciccumstances* The reports at shat Southcote ant had received consideration or that the defendant was a common trades- ‘man—though perhaps important in its time—simply reaffirmed the rule which had been laid down clearly in Powtney v Walton; and the disapproval of Southcote v Bennet would have done no more than clear the way for 2 later ‘court to define more precisely in what circumstances the bailee would be liable. °° Cogge v Barnard a above) 2 Lord Raye 908,92 ER 107 SEER 107,10. 12592 BR 107, 108-9, refers to Gould J Beng onthe side ofthe plein BL Ms Add M125 10. David Ibbetson To put it another way, the status of Coggs v Barnard as a leading case depends exclusively on the judgment of Holt CJ. To this we must now tum, looking both at the judgment as reported at length in Lord Raymond's reports and at Hiol’s ‘own manuscript draft.” Three things are immediately visible from even a cursory examination of Holt’s judgment, whether in draft or in the version in Lord Raymond’s reports. Fitst, itis very different from what we see of the judgments of the three puisnes, in that it divides bailments into six distinet species and analyses cach in turn, Secondly, it bears far less relation to the arguments of counsel than the judgments of the puisnes. And thirdly, it puts far greater wi legal trea- ses and on Roman law than do the other three, citing Justinian's Institutes, together with the commentary of Vinnius as well as Bracton’s De Legibus et Consuetudinibus Anglice and St German’s Doctor and Student. Comparison ‘between the two versions of the judgment brings outa fourth feature: while the draft judgment repeatedly reveals Holt’s hesitancy or uncertainty, Lord Raymond’s report smooths away these doubts and carries an aura of self assurance about it. This is visible right at the start. Repeating the poine he had made during counsel’s argument, he dismissed the precedents in the Register ‘of Writs in which an action had been allowed without laying any consideration. Logically, we might suppose that the inference from this was thatthe plaintiff's action was not well-founded. None the less—in statk opposition to this—after serious thought, he had resolved that judgment should be given for the plaintiff though the books were obscure and contradictory, both their authority and their reason supported the action.* The report ofthe final judgment plays down this tension, saying merely chat he had ‘made a great question’ whether the dee- Jaration was good and decided that it was.°° Holt continued by saying that in order to see when liability should be imposed fon the bailee it was necessary to distinguish six different species of bailment: {i) a gratuitous bailment for the benefit of the bailor; a hiring of goods; (iv) a pledges (v) a delivery of goods 6 ivety of goods to be carried of for something any reward.“ The draft judgment makes clear ed in Roman law: the first form,‘ call as the Law does a deposit or depositum’; the third ‘is called in the Law Locatio et Conduct’ the fourth is “vadium or pignus in the Law, in English a pledge or pawn’s the sixch is called in the Law mandacum, which Tall in our law a com- mission’. Lord Raymond!’s report scoured out these repeated references to ‘the a gratuitous loan for else to be done © Cogs» Barnard (ot shove) Lord Rayon 208, 912-20; 92 ER 107, 113-14 ith LIMS HU 52 104, LMS Coxe 6456, SS BL MS Add 3492511 with BLS Add 3980 3 Above 5 » BL MS Add 34125 111,110 © Coggsv Barnard (1 above) 2 Lord Raym 909, 912; 52 ER 107, 109 1 BLM Add 4125 111,112; Copge Barard a1 above) 2Loré Ray 09, 912-1592 ER 107, 109-10. Coggs v Barnard 1 Law’, simply listing the six forms. In doing so it domesticated the division of bailments into different species. Although there was no warrant for doing so in any of the earlier case-law, the impression was given that this was the way in ‘which English law had hitherto analysed the baile’s liability. Having set out his framework, Holt proceeded to analyse each of the six forms in turn. First was deposit, where goods were bailed to be looked after gratuitously. ‘The starting point for Holts analysis here, in both the draft judgment and Lord Raymond’s report, was that the depositee was liable neither if the goods were stolen nor for theit loss by ordinary or common neglect In the later version he added that there must be gross neglect." No authority for this is given in either version, though we might suspect that the original basis for it was to be found in Justinian’s Institutes, where the depositee was liable only for fraud or gross negligence, dolus or culpa lata.6* The two-part argument of the draft judgment, in its original form, straightforwardly follows from this: first Holt shows that no liability attaches ro the bailee when the goods are stolen; secondly he shows that liability depends on deceit, gross negligence being created as evidence of this. ‘The first part of the argument is carefully reasoned. Ifthe bailee were to be liable if the goods were stolen, this must either be because he had undertaken responsibility for thefe; because there was a legal rule to this cffect—a ‘usage and custom's or because this was required by the cules of natural reason or justice.®° Th ities was easily dismissed: the simple accept- id not of itself show that the depositee was agreeing to hold himself responsible for the acts of strangers. * The second pos- on an analysis of the ies, and Holt next 1urned to these.” Two Year Book cases of the 14th century suggested that the bailee was not liable in case of theft, the position which Holt favoured. Problematic, though, was a case of 1469, where Danby CJ ‘was reported as saying that the appropriate standard of care was that which the bailce was accustomed to take about his own affairs.*° This was dealt with by a ‘ben trovato interpolation to the effect that at this ime Danby was only counsel, having been earlier removed as Chief Justice and not yet restored, so that it was gests chat wotbe certain © "Ta face that eane ofthe manuscip epots of the change was he work of Hole imeelf and noe ofthis SLMS Add 34125 £111, 13; Cogs Barnard (n 1 above) 2 Lord Ray 909,913; ZER 107, 128111 se. BL MS Add 34128 141, 16 "Por it must be agreed acceptance to keep is no expresee under itr Ab Deine 59 (=Bowdon Flletor YBP SE 41 ss) 136 OPYBMS Bdw IV 40 ph. 12. David Ibbetson weakened by the fact that ichad been decided by only two of the judges, Gawey and Clench J}, ceteris absentibus, Moreover, it was inconsistent cases in which it was held thar there would be no enjoyment of property where the lessee oF itha series of ‘ona covenant for quiet was harassed by a third party spart from Southcote’s case, there current of authority—which, it was said, accorded with reason— to the effect chat the bailee would not be The second limb of the a judgment, was no less ‘quoted at length, keep the goods honestly and lease neglect shall make rh t embodied a tension berween vels, The frst part of the argu- ‘ment was substantially English, raising an issue that had come to pred in the English cases: whether the bai ond, 1655) 79 (eed cps Say, The Jue of Brin, Coggs v Barnard 13 3g the cases discussed i involved contracts of deposit. One of the Year Book cases in the others no distinction at all was drawn between gr ssessio OF balmene were fundamentally alike. In so far as the oppo English and Roman law could be reduced to the distinction between argument from precedent and argument from principle, it was principle which won out, nowhere moze clearly in the preference for reason over authority in the treat- ment of Southcote's case. Throughout, Holt was cavalier in his dealings with the h cases, in effect straitjacketing them into the romanised framework 1B robust, bur the against wrongdoers, based on the cases of covenants for quiet pos passage from Doctor and Student which substa |, and hath nothing fr the Keeping tho he make a wand to anawer for casualtys, because a tion and wndertakes to keep them ‘except the Act of God or Tempests position with a variation: where there was 2 special acceptance ‘goods safely the bailee would be liable for any slight negligence, be liable without more for theft or other acts by third partis if he had received consideration for his promise.** Te is not clear that this argument worked, for it begged the question why the speci was relevant at all if there was no consideration for liability to cases of fraud and gross negh= judgment his opinion had same care as he Roman taken into the textin 14 David Ibbetson rule which was found in J 4 strand which could bef fi the judgment reflects thi ison with the original form of the dra framework is not made explicit, and the the argument is n ‘Simple aceeptance doesnot imply agreement to be responsible for theft neglect ‘Southcote’s case inconsistent wi bur wrong, teglect evidence of fra Cases of quiet possession of land Doctor and Student What had started out as an analytical argument directed at the elucidation of the rules o y has been restructured as a commentary on Southcote's case. Its opening sally—"There is I confess a great argument against me’—brings it to the fore; and its final sentence—'So that the reason to support the opinios is equiva is now buried in the middle of the reasoning rather than standing in its own right at the end. 100, the argument is weakened by the incorpo identified as afterthoughts to the of che nwo. riginal draft. The first of thes © Above, 39, Coggs Barnard (nt above) 2 Lord Raym 909, 913-15, 92 ER 167 10-1 Coggs v Barnard 15 ssage from Doctor and Student, inthe final text the transparent incor 1s disappeared by turning the Doctor and Student point into the negative, Instead of saying that a person who has teceived consideration is liable for all casualties except those flowing from Act says simply thata person who has not received consideration is not casualties. But ic is only an appa ovement: there is an implication that those who had received consideration would be so liable, and mn is given why this should bes and, worse, the quiet possession fact involve gt so that the conflict berween them and Doctor and Student ‘gross negligence of mere bailee, or depositec, was: affeirs.® The final version attempts 10 hold both posit neously Gross negligence is stated to be the appropriate standard at the beginning and ‘end af the argi iddle he requires thar the depositee look after the property as his own. An at is made to reconcile the different lines by turning the latter into 2 rule of evidence®: but as he keeps hi va, though he keeps his for the keeping them as be were very shaky. In the draft the rule of his-was based on Bracton and Justinian. In the final ver- jord Raymond’s the tempration must be 16 David tobetson two other reports.%! It is mor in ts final form did nat hold water. We might usefully take stock of the treatment of deposit. Fits, iis clear from the physical text of the draft judgment chat Hole was grappling with the issues raised by Southcote w Benet. The interpolated passages reveal the way in which his argument developed, with second thoughts sometimes ones, Puring the report of the final judgment alongside the drafy, see the way in whi ns inthe draft have been resolved ‘ofthe second thoughts), bu talso has o be recognised thatthe i ometimes contains a denenerated form of the argument as the deaf ‘That the printed text carries an aura of authority and certainty is no warranty of that when case-law is used, m of cases produces the i of reasoning from case to case, in ignored the current of authority. Thisdy, the use th ‘natural reason’ or “common justice” was good grounds for secing it asa cule of the Common lve. ‘The second species of bailment dealt with by Holt C} was the gratuitous loan for use, the Romans’ commodatum. Here he was content simply to adopt Beacton’s text” saying that the borrower was requiced to take the utmost care and diligence of the property, with the eorollary that he should be liable for any slight negligence. Exactly the same standard was demanded in the third con- hire or focatio conductio, and again it was justified solely by reference to Bracton.” The only difference berween Lord Raymond is thatthe deaf is exp rule on the grounds that it accorded with the “gene moderna further example of the universalism noted inthe con- lposit. Although there is passing reference to a Year Book case and Southcotev Bennet, Bracton © ‘Beacon, De Leg, (n Labove) 2 Lo Coggs v Barnard 17 0, in thes ever the rules before Coggs v Barnard were, les of Roman law mediated through Bracton. “The fifth type of bailment, where goods were delivered by one man to another 10 be cartied, or for other work to be done on them, for reward was treated very

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