FOR EDUCATIONAL USE ONLY

J.B.L. 2008, 1, 1-63

Journal of Business Law

2008

Article

MODERNISING AND CODIFYING THE LAW OF

BAILMENT

Graham S. McBain.

Copyright (c) Sweet & Maxwell Limited and

Contributors

Case: Coggs v Bernard (1703) 2 Ld. Raym. 909

(KBD)
Legislation: Supply of Goods and Services Act 1982
Subject: PERSONAL PROPERTY
Keywords: Bailment; Codification; Legal history
Abstract: Discusses the law of bailment, suggesting
that codification of the law would be possible and
beneficial. Reviews legal texts on bailment, different
definitions of bailment, categories of bailment and
their pre-requisites, the obligations of the bailee and
bailor, gratuitous bailments, mutuum and finding,
sub-bailment, and involuntary and unconscious
bailment. Summarises the benefits of codification.
*1 1. Introduction

In 2003, Gerard McMeel wrote a thought-provoking

article. It was entitled, "The Redundancy of
Bailment". [FN1] His thesis was that the concept of
bailment did not really contribute to the intelligibility,
or rationality, of English personal property law.
Among other things, the label of "bailment"
sometimes acted as an unnecessary straitjacket. It
also downplayed the deliberate contractual
structuring of relationships between commercial
parties. Indeed, bailment had no autonomous legal
content which could not be better attributed to
concepts of consent, wrongdoing, unjust enrichment
or property. [FN2] Thus, he stated:
"Bailment does not give any extra analytical
dimension which we do not have by reference to
generic legal concepts such as consent, wrongdoing,
unjust enrichment, fiduciary obligation and property.
It does not shed any further illumination on our
problems." [FN3]
In conclusion, McMeel declared:
"... [B]ailment is a redundant concept in English
personal property law or, alternatively ... what
remains of it is so vestigial as to be easily jettisoned
when a suitable occasion arises." [FN4]
Contrariwise Andrew Bell, writing in Palmer and
McKendrick's text Interests in Goods, [FN5] had a
different viewpoint. He accepted that the law of
bailment had an antique flavour and that it could
easily appear to be a superfluous anachronism. Its
*2 pretensions to be an independent source of
obligations, distinct from and co-equal with contract,
tort and restitution, could, therefore, seem an
embarrassment to the modern lawyer. [FN6]
However, he argued that bailment was a sui generis
source of obligations [FN7] and had not simply been
absorbed by the law of tort, although he accepted
that:
"... [T]he law of bailment only applies in a restricted
area ... [and] even in that restricted area, there is
extensive overlap with contract, tort and (to a lesser
extent) restitution, with only a few situations where
it is necessary, as opposed to possible, to rely on
bailment." [FN8]
It may also be noted that the common law of
bailment has been superceded, to a considerable
extent, by statute. [FN9] Both the viewpoints of Bell
and McMeel have much to commend them. While I
would agree with Bell that bailment is sui generis, it
is also clear that as presently formulated the subject
does little to contribute to the overall intelligibility of
the law of personal property. Palmer, who has
written the standard work on the topic, [FN10] has
described bailment as a "fragmented subject ... [I]ts
development has been sporadic and ill coordinated".
[FN11]
The purpose of this article is to assert that it is high
time to examine what currently falls under the
category of "bailment" and ask: "Can this not be
codified into some basic principles?". At present, the
law of bailment is *3 unsatisfactory. It is burdened
with out-moded definitions and an over-rigid
categorisation. It is also evolved unsystematically, a
point noted by Street in 1906:
"Our law of bailments is English law, glossed over, it
may be, with a coating of Romans terms and framed
in a form resembling that of the foreign system; but
still it is of truly English origin, somewhat tediously
and unsystematically wrought out by the builders of
the common law." [FN12]
What other criticisms can be made? One suspects
that, for many lawyers (academic and practising)
bailment is perceived as something of a Cinderella
subject with obscure terminology, a distinct lack of
clarity and very uncertain ambits. [FN13] All too
often the courts have concentrated on particular
aspects of bailment without drawing together
common threads. Furthermore, the subject contains
much obsolete material. [FN14]
Codifying the law of bailment would remove this
dead weight of the ages. It would also help lawyers
perceive the essential unity (or what should be the
essential unity) of the law relating to the voluntary
possession of goods belonging to another. This
article analyses how codification might be
undertaken. It would not be a particularly onerous
task.

2. Texts on bailment

(a) Pre-20th century texts

Prior to considering the concept of bailment,

reference may be made to the case law and writings
on bailment to date. The case law on bailment, both
in the Yearbooks (1268-1535) [FN15] and in the
English Reports (1220-1873) [FN16] prior to the first
legal text on bailment in 1781, is relatively scant.
This is not surprising. In particular:
• personal possessions prior to the Industrial
Revolution were few and far between;
*4 • goods (generally) were of a relatively low worth
and rarely merited going to court over, in the case of
dispute [FN17]; and
• the commercial carriage of goods an important
aspect of bailment did not become a major activity in
Britain until the establishment of turnpike roads in
the 18th century. [FN18]
As a result, the Abridgments both the "major"
[FN19] and the "minor" [FN20] contain no
systematic analysis of the subject even after Holt
C.J.'s masterful summary in Coggs v Barnard.
[FN21] Coke in his Institutes (1628-1644) [FN22]
did not consider the law of bailment in any detail
[FN23] and Blackstone, in his Commentaries (1765-
1769), [FN24] summed it up in a few, inaccurate,
paragraphs. [FN25] It was left to Sir William Jones,
who had scant regard for Blackstone's treatment of
the subject, [FN26] to gather the threads together in
the first treatise on bailment first published in 1781.
[FN27] Jones observed that:
*5 "It seems ... astonishing that so important a
branch of jurisprudence should have been so long
and so strangely unsettled in a great commercial
country; and that, from the reign of Elizabeth to the
reign of Anne, [i.e. from 1558-1714] the doctrine of
bailments should have produced more contradictions
and confusion, more diversity of opinion and
inconsistency of argument, than any other part,
perhaps, of juridical learning." [FN28]
Jones was followed by Story. His Commentaries on
the Law of Bailment were published in 1832 and the
last edition was in 1878. [FN29] He relied, perhaps
too heavily, [FN30] on civil jurists such as Jean
Domat (1625-1696) and Robert Pothier (1699-
1772). [FN31] In 1880, Holmes considered the
liability of the bailee in his lectures on the common
law. [FN32] He contended that all bailees in early
English law had strict liability imposed on them and
that this gradually diminished with the exception of
those performing public functions, viz. common
innkeepers and carriers. This theory no longer
prevails, having been comprehensively rejected by a
number of legal writers, including Schuster, Beale,
Fletcher, Fifoot and Street. [FN33] In 1889, Pollock
and Maitland also (briefly) considered the liability of
the bailee in olden times. [FN34] The precise
circumstances of the bailee's early liability remains
unclear, not least because of a dearth of case law.
[FN35]

*6 (b) 20th century texts

At the turn of the century, Beal (1900) and Paine

(1901) produced large tomes on bailment. [FN36]
They are mainly a compilation of extracts from the
case law and earlier legal writers and cannot be
regarded as wholly satisfactory. [FN37] As for
English legal writing on bailment for the remainder of
the 20th century:
• in 1931, Winfield considered the origin of the
concept of bailment [FN38];
• in 1932, Fletcher produced a monograph on The
Carrier's Liability. [FN39] Although the latter refuted
Holmes' contention that all bailees, initially, bore
strict liability, Fletcher did not indicate when he
thought that carriers, in particular, first began to
bear strict liability. One would suggest it was first
recognised around the time of Woodlife's case
(1596) in the case of common carriers only, being an
extension of the strict liability of common innkeepers
whose strict liability was upheld as early as 1368
[FN40];
• in 1952, Paton's work on bailment was published.
With it, a comprehensive analysis of the subject
returned to the fold [FN41]; and
• in 1979, Palmer's work on bailment was published.
In 1991, there was a second edition and a new
edition is anticipated. [FN42]
Given the above, English legal texts on bailment are
few. All are dated [FN43] save for Palmer's work
which commands the field. [FN44] Finally, there is a
chapter on bailment *7 in Halsbury (edited by
Palmer). While this chapter is most useful, one would
suggest that its overall structure should be
modernised. [FN45] Part Four of the chapter refers
to "Considerations common to all classes of
bailment". However (as this article seeks to show),
there is much greater commonality than this. For
example, obligations applicable to all bailees include
a duty of care, a duty not to deviate and a duty to
account. These should be covered by headings
dedicated to the same, instead of being referred to
piecemeal under various categories of bailment.
[FN46] If this were done, it would become apparent
that bailment, today, is better analysed in terms of
the rights and obligations of the bailee and bailor,
rather than by reference to types of bailment
borrowed from Roman law. It would also make the
subject easier to understand.
In conclusion, the only modern work on bailment is
that of Palmer. The others are dated.

3. Definition of bailment

(a) Definitions: 1579-1973

The word "bailment" derives from the French,

"bailler" to deliver [FN47] the word being a
translation of the latin, tradere or liberare. [FN48]
Unfortunately, this derivation, while pithy, was
inaccurate from the start since bailment has long
been treated as including the finding of goods, which
involves no delivery as such. This point was made by
in York Products Pty Ltd v Gilchrist Watt and
Sanderson Pty Ltd by Lord Pearson:
" 'When finder of chattel is bailee'. This expression is
not etymologically accurate, because the word
'bailee' is derived from the French 'bailler' meaning
to deliver or hand over, and there is no delivering or
handing over to a finder." [FN49]
*8 Also, bailment can arise without any physical
delivery of the goods in question from one person to
another. For example, in the case of attornment, or
in the case of a seller of goods who remains in
possession after property has passed to the buyer.
[FN50] An early, and prescient, description of the
wider scope of bailment, which avoided reference to
delivery, can be found in St Germain's Doctor and
Student (1532) where he considered the "chances
that may happen to goods that a man hath in his
keeping that be not his own". [FN51] Sadly, this
simple concept was not preserved in the earliest
legal dictionary, published by Rastell, and called
Termes de la Ley (Terms of the Law), the first
edition of which was in 1529. [FN52] It defined
bailment in the 1579 edition [FN53] as follows:
"Bailment is a delivery of things (whether it be of
writings, goods, or stuff) to an other, some times to
be redelivered back to the bailor, that is to say, to
him who so delivered it; sometimes to the use of the
bailee, that is to say, of him to whom it is delivered;
and sometimes also it is delivered to a third person.
This delivery is called a bailment." [FN54] [original
emphasis]
There are problems with this definition and it sowed
confusion for a long time to come. As previously
noted, bailment covers more than the delivery of
possession of goods. [FN55] Nor does it necessarily
require their redelivery. For example, redelivery does
not occur in a bailment for sale, as in the case of
consignment of goods to a factor for sale. [FN56]
Also, bailment does not necessarily embrace the use
of the goods; it can comprise custody only. More
importantly, not all forms of bailment *9 are
contractual [FN57] even though some courts and
legal writers have clung on to this pre-requisite into
the 20th century. [FN58] For example, deposit,
mandate and loan for use are wholly gratuitous.
Further, a contract is not present in the cases of
finding. In 1765, Blackstone defined a bailment as:
"... a delivery of goods in trust upon a contract,
expressed or implied, that the trust shall be faithfully
executed on the part of the bailee." [FN59] [original
emphasis]
Blackstone also called a bailment, a "delivery of
goods to another person for a particular use". [FN60]
In 1781, Jones (supplementing Blackstone but not
citing any source) [FN61] defined a bailment as:
"... a delivery of goods in trust, on a contract,
expressed or implied, that the trust shall be duly
executed, and the goods redelivered, as soon as the
time or use for which they were bailed, shall have
elapsed or be performed." [FN62] [original
emphasis]
Story, writing in 1832, exposed some of these
failings. He found the definitions of Blackstone and of
Jones to be unsatisfactory [FN63] since he was
dubious whether "faithful execution", "use" or
"redelivery" were inevitable components of a
bailment (they are not). [FN64] Also, reference to a
"trust" can easily be thought to *10 embrace an
equitable concept when, in fact, the words refer to
"entrustment", which is little more than a convoluted
reference to holding another's goods. [FN65] Story
hazarded his own definition of bailment:
"... a delivery of a thing in trust for some special
object or purpose, and upon a contract, express or
implied, to conform to the object or purpose of the
trust." [FN66] [original emphasis]
This definition was still inadequate since it included
reference to words such as, "delivery", "trust" and
"contract". Neither Beal [FN67] nor Paine, [FN68]
writing at the beginning of the 20th century,
attempted a definition of bailment. Nor did Street in
his work in 1906. [FN69] In 1908, Holdsworth noted
that bailment was a general term used to express
any voluntary parting with possession. [FN70] This
description failed to deal with finding. Also, a bailor
need not have initial possession of the goods.
Holdsworth did not define bailment as such. Nor did
Winfield in 1931, apart from noting that possession
was the salient feature of bailment. [FN71] Paton, in
his work on bailment in 1952 did not define
bailment. Instead, he relied on a quotation from
Pollock and Wright [FN72] who, in their work on
possession published in 1888, stated:
*11 "... [A]ny person is to be considered as a bailee
who otherwise than as a servant either receives
possession of a thing from another or consents to
receive or hold possession of a thing for another
upon an undertaking with the other person either to
keep and return or deliver to him the specific thing
or to (convey and) apply the specific thing according
to the directions antecedent or future of the other
person." [FN73] [original emphasis]
While this was not expressed to be a definition of
bailment as such, at least, it avoided a reference to
words like "use", "in trust", "redelivery" or
"contract". However, reference to "receipt" of
possession failed to deal with finding. Further,
reference to an "undertaking" relied on some form of
consensus (or agreement) between a bailor or
bailee. [FN74] This was not present in the case of
finding. Nor was it necessarily present in the case of
some sub-bailments or quasi-bailments, unless, in all
three cases, recourse was made to a legal fiction
that, in some way, the bailor had given an "implied"
consent to the bailment something at variance with
reality in the case of finding and unauthorised sub-
bailments or quasi-bailments. [FN75]
In conclusion, one would assert that all definitions of
bailment until late into the 20th century were
unsatisfactory and that they are of no benefit in
formulating a concept of what bailment comprises
today. The reason why this state of affairs came
about one would suggest is that most definitions
sought to define bailment with too much particularly,
concentrating on incidental, rather than common,
features.

(b) Definitions: 1973-to date

In 1973, in the last edition of his work on personal

property, Crossley Vaines did not hazard a definition
of bailment, apart from commenting that:
"Bailment eludes precise definition because the term
covers a host of legal relationships which have as a
common denominator only that one is in possession
of another's chattel. Possession is the salient
feature." [FN76]
*12 In Morris v Martin, the Court of Appeal re-
emphasised that bailment did not need to be based
on contract. [FN77] In Gilchrist Watt v Sanderson
(1970) in the Supreme Court of New South Wales,
Asprey J.A. stated what has become the modern
definition of bailment:
"... the duty of a bailee arises when one person,
otherwise than as a servant, voluntarily takes into
his possession goods which are the property of
another." [FN78]
In 1989, Bell, in his text on personal property, stated
that a bailment arose when:
"... one person (the bailee) is willingly and with
authority in possession of goods to which another
(the bailor) retains better title; and that the
necessary authority to possess may be supplied
either by the bailor's consent, actual or implied, or
by operation of law." [FN79]
However, it is unclear the extent to which "willingly"
differs from "voluntarily". [FN80] Furthermore,
"authority" hardly covers finding. In 1991, Palmer in
his treatise on bailment, asserted that a bailment
came into being, "whenever one person is knowingly
and willingly [FN81] in possession of goods which
belong to another". [FN82] Further, he asserted that
bailment did not require: delivery, redelivery, a
contract, consensus, the consent (or knowledge) of
the bailor nor the initial possession of the goods by
the bailor. [FN83] In 2002, in his text of personal
property, Bridge defined bailment as:
*13 "... a possessory relationship by which a bailor
transfers possession of a chattel to a bailee." [FN84]
This fails to cover finding. Further, the transfer need
not be made by the bailor. In 2004, Dempster,
defined bailment as occurring when:
"... a person (the bailor), having the legal right to
exclusive possession of a chattel, exercises a legal
power by performing an act or action prescribed by
law thereby intentionally conferring the legal right to
exclusive possession of that chattel upon another
person (the bailee) and concurrently intentionally
conferring upon itself the reversionary interest in
that chattel." [FN85]
This definition also fails to cover finding and, as
Dempster notes, sub-bailment. [FN86] In the current
edition of Halsbury it is stated that a bailment arises:
"... whenever one person (the bailee) is voluntarily in
possession of goods belonging to another person
(the bailor)." [FN87]
This is effectively restated by Halsbury when it also
notes:
"... [T]o constitute a bailment ... the actual or
constructive possession of a specific chattel must be
vacated by its owner or possessor (the bailor), or his
agent duly authorised for that purpose, in favour of
another person (the bailee) in order that the latter
may keep the same or perform some act in
connection with it, for which such actual or
constructive possession of the chattel is necessary,
thereafter returning the identical subject matter in
its original or altered form." [FN88] [original
emphasis]
One would suggest the underlined wording is
unnecessary for a definition of the bailment, since it
merely refers to the purpose of the bailment rather
than to the concept of bailment as such. Halsbury's
definition is more satisfactory than previous ones. In
particular, it avoids reference to "delivery", "use", "in
trust", *14 "contract" and "consensus". It also
covers finding. As pointed out in Palmer and
McKendrick (article by Bell), [FN89] therefore, the
key pre-requisites of a bailment, in its modern
formulation, comprise:
• possession of another's goods by the bailee
[FN90];
• consent of the bailee to that possession [FN91];
and
• awareness by the bailee of a bailor. [FN92]
The bailor need not have had possession of the
goods. [FN93] Nor, indeed, title simply a higher right
to possession. [FN94] Reference to "consent" and to
the awareness (knowledge) of the bailee excludes
from the concept of bailment two scenarios where a
person is in possession of the goods of another:
• Involuntary bailment. When a person is in
possession of the goods of another, but does not
consent to act as a bailee. Palmer defines it as
arising when:
"... a person whose possession of a chattel, although
known to him and the result of circumstances of
which he is aware, occurs through events over which
he has no proper control and to which he has given
no effective prior consent." [FN95]
• Unconscious bailment. When a person is in
possession of the goods of another, but does not
know it. [FN96] Palmer defines it as:
*15 "A possessor who has neither consented to
being in possession of goods belonging to another,
nor is actually or ostensibly aware of his possession
of such goods." [FN97]
Thus, an unconscious bailee is a further stage on
from an involuntary one. It neither consents, nor
knows, of its possession of the goods of another.
The use of the word "bailment" in these contexts is a
misnomer. Some legal writers have asserted that
bailment should include involuntary bailment. [FN98]
This article asserts that the exclusions of both
involuntary and unconscious bailment is appropriate
since their inclusion will otherwise subvert the
commonality of the rules which apply to bailment.
[FN99] They should be governed by separate rules
(see section 21).
In conclusion, for the purpose of codification one
would propose the following as a modern definition
of bailment: "Bailment arises when one person is
voluntarily in possession of goods belonging to
another". [FN100]

4. Categories of bailment are they necessary?

Under Roman law, Justinian's Institutes divided real

contracts into four categories viz. sections 1, 3 and 4
below as well as mutuum. [FN101] Although the
latter is not a true bailment since ownership passes
(the goods lent not having to be returned) it is also
considered in this article since it has long been
treated as a quasi-bailment. [FN102] In Coggs v
Barnard [FN103] Holt C.J. relying on Roman law
indirectly and Bracton directly [FN104] divided
bailment into six categories (also called sorts or
species). [FN105] *16 Jones, in his treatise on
bailment in 1781, reduced them to five. [FN106]
Halsbury defines them as follows, the first three
being gratuitous:
1. Deposit (depositum): "The gratuitous deposit of a
chattel with the bailee who is simply to keep it for
the bailor." [FN107]
2. Mandate (mandatum): "The delivery of a chattel
to the bailee, who is to do something without reward
for the bailee to, or with, the chattel." [FN108]
3. Loan for use (commodatum): "The gratuitous loan
of a chattel by the bailor to the bailee for the bailee
to use." [FN109]
4. Pledge (pignus): "The pawn or pledge of a chattel
by the bailor to the bailee, who is to hold it as
security for a loan or debt or the fulfilment of an
obligation." [FN110]
5. Hire (locatio conductio): "The hire of a chattel or
services by the bailor to the bailee for reward."
[FN111]
In 1832, Story reduced these five categories to
three. [FN112] Those in which the trust was: (a)
exclusively for the benefit of the bailor or a third
person; (b) exclusively for the benefit of the bailee;
or (c) for the benefit of both parties or of both or one
of them and a third party. [FN113] In 1900, Beal
reduced the three to two categories: gratuitous
bailments and bailments for reward. [FN114]
However, "reward" is a difficult concept and, as
Palmer notes, the significance of "reward" has
declined considerably in recent years. [FN115] Why
were bailments categorised in any case? The main
purpose under both Roman and English law was to
distinguish between different levels of care imposed
on the bailee. However, the duty of care imposed on
bailees now is (and should be) the same, in
accordance with general tort principles (see *17
section 7). [FN116] Thus, the principal reason for
categorisation has gone. Furthermore, the above
categories are too rigid. As Palmer has noted in
respect of Holt C.J.'s categorisation in particular, Holt
C.J.'s analysis is "outmoded" since his examples:
• are of consensual bailments;
• are confined to a two party transaction; and
• arise upon a direct delivery of goods from one
person to another,
none of which necessarily embraces the concept of
bailment. [FN117] Thus, Holt C.J.'s categorisation
purported to circumscribe the ambits of bailment
when, in fact, it merely comprised (or, at least, now
comprises) some, non-exclusive, examples of the
same. Modern authority recognises as bailments
those which do not fit readily into the categories
proposed by previous legal writers. [FN118] For
example, finding, hire purchase (which combines
elements of sale and bailment), [FN119] conditional
sale, sub-bailments and quasi-bailments.
In conclusion, bailment should be stated to include,
but not be limited to, deposit, mandate, loan for use,
pledge, hire, finding, hire purchase and conditional
sale.

5. Modern definitions of bailment terms

If bailment is now defined to include the categories

referred to in section 4 as opposed to the latter
being treated as all inclusive the definitions of these
categories also need to be modernised since current,
and former, definitions employ archaic terminology.
Also, in some cases, the word "bailment" is used in
the definition, making it circular.
• Deposit. [FN120] In Coggs v Barnard, Holt C.J.
defined a deposit as, "a bare naked bailment of
goods, delivered by one man to another to keep for
the use of the bailor". [FN121] Descriptions, or
definitions, of deposit have also been proposed by
*18 Blackstone, [FN122] Jones, [FN123] Story
[FN124] and other legal writers. [FN125] All,
however, have an archaic flavour to them and even
the definition supplied by Halsbury [FN126] is
capable of improvement. One would propose as a
modern definition:
"The delivery of goods by one person to another, for
the other to act as a custodian without payment."
• Mandate. [FN127] In Coggs v Barnard, Holt C.J.
defined a mandate as arising:
"... [w]hen there is a delivery of goods or chattels to
somebody, who is to carry them, or to do something
about them gratis, without any reward for such work
or carriage." [FN128]
Descriptions, or definitions, have been proposed by
Jones, [FN129] Story [FN130] and other legal
writers, [FN131] with Story asserting that the
definitions of Holt C.J. *19 and Jones were, perhaps,
more properly an enumeration of the various sorts of
mandate than a definition as such. [FN132] One
would propose as a modern definition:
"The delivery of goods by one person to another, for
the other to do something with the goods (such as to
work on them or to carry them) without payment."
• Loan for use. [FN133] In Coggs v Barnard, Holt
C.J. defined a loan for use as arising:
"... when goods or chattels that are useful, are lent
to a friend gratis, to be used by him; and this is
called commodatum, because the thing is to be
restored in specie." [FN134]
Descriptions or definitions were proposed by
Blackstone, [FN135] Jones, [FN136] Story [FN137]
and other legal writers. [FN138] One would propose
as a modern definition:
"The delivery of goods by one person to another on
loan, for the other to use them, without payment."
• Pledge. [FN139] In Coggs v Barnard, Holt C.J.
defined the pledge as arising:
*20 "... when goods or chattels are delivered to
another as a pawn, to be a security to him for money
borrowed of him by the bailor; and that is called in
latin vadium, and in English a pawn or pledge."
[FN140]
Descriptions, or definitions, were also proposed by
Jones, [FN141] Story [FN142] and other legal
writers. [FN143] One would propose as a modern
definition:
"The delivery of goods by one person to another, in
order to secure a debt or other obligation."
• Hire. [FN144] In Coggs v Barnard, Holt C.J.
declared that hiring also called letting occurred
when:
"... goods are left with the bailee to be used by him
for hire; this is called locatio et conductio and the
lender [bailor] is called locator, and the borrower
[bailee] conductor." [FN145]
This confusion of terminology "letting-hiring" derives
from Roman law. [FN146] *21 Descriptions, or
definitions, were also proposed by Blackstone,
[FN147] Jones, [FN148] Story [FN149] and others.
[FN150] One would propose as a modern definition:
"The delivery of goods by one person to another, on
hire, for payment."
Holt C.J. divided hire into two categories: (a) the
hire of goods (locatio rei); and (b) the hire of goods
to have something done to them or to be carried
(locatio operis). [FN151] While Jones deprecated
making these separate categories, [FN152] he sub-
divided (b) into the hire of labour (locatio operis
faciendi); and the hire of carriage (locatio operis
mercium vehendarum). [FN153] Story added a
further sub-division hire of custody (locatio rei
custodiae). [FN154] Modern texts on bailment divide
hire into four sub-categories [FN155]; viz. the hire
of:
*22 (a) Goods. Definitions have been supplied by
Jones, [FN156] Story, [FN157] Halsbury [FN158]
and others. One would propose as a modern
definition, the above definition of hire viz.: The
delivery of goods by one person to another, on hire,
for payment."
(b) Custody. Definitions have been supplied by
Jones, [FN159] Story, [FN160] Halsbury [FN161]
and others. [FN162] One would propose as a modern
definition:
"The delivery of goods by one person to another, for
the other to act as a custodian, for payment."
(c) Labour. Definitions have been supplied by Jones,
[FN163] Story, [FN164] Halsbury [FN165] and
others. [FN166] One would propose as a modern
definition:
*23 "The delivery of goods by one person to
another, for the other to work on them, for
payment."
(d) Carriage. Definitions have been supplied by
Jones, [FN167] Story, [FN168] Halsbury [FN169]
and others. [FN170] One would propose as a modern
definition:
"The delivery of goods by one person to another, for
the other to carry them, for payment."
As to other examples of bailment such as finding and
hire-purchase in the case of the first, see section
19(b). In the case of the second, it is adequately
defined elsewhere. [FN171]
In conclusion, there should be modern definitions of
various examples of bailment.

6. Bailment categories and pre-requisites

Texts on bailment to date have made little (or no)

effort to stipulate what the pre-requisites are for the
various categories of bailment mentioned in section
4. This is a pity since this fails to identify the high
degree of commonality among the categories. Any
codification of the law on bailment should stipulate
these pre-requisites. One would suggest they are as
follows:
• Deposit. [FN172] The pre-requisites appear to be:
(a) the goods must be delivered to the bailee if it
does not already have possession [FN173]; (b) the
purpose of the *24 delivery is for the bailee to retain
custody of the goods [FN174]; (c) the custody is
gratuitous (if for payment, it is hire of custody, see
below) [FN175]; (d) the deposit must ordinarily be
made with some person other than the owner
[FN176]; (e) the bailee must voluntarily agree to
accept the goods. [FN177] If it does not, it has no
liability (that is, there is no liability for non-
feasance), [FN178] in which case the bailor has a
right to demand the return of the goods. [FN179] If
the bailee does accept, it may be liable for failure to
carry out its promise, if this causes damage to the
bailor (that is, the bailee is liable for misfeasance).
[FN180]
• Mandate. [FN181] Like a deposit, a mandate
comprises the gratuitous delivery of goods to
another (if it is for payment, it is a contract of hire,
see below). [FN182] The distinction lies in the
purpose of the bailment something is to be done with
the goods, as opposed to mere custody. [FN183] The
pre-requisites for a mandate *25 are the same as
for a deposit, save for (b). [FN184] Like a
depositary, a mandatary can refuse to accept the
mandate and return the goods. That is, it is not
liable in the case of non-feasance, but it is in the
case of misfeasance. [FN185]
• Loan for Use. [FN186] Like deposit and mandate, a
loan for use comprises the gratuitous delivery of
goods to another (if it is for payment, it is a contract
of hire, see below). The pre-requisites for the loan
for use are the same as for a deposit, save for (b),
since the purpose of the delivery is for goods to be
used by the borrower for a specific purpose. [FN187]
Unlike deposit and mandate, a loan for use is wholly
for the benefit of the bailee, not the bailor. [FN188]
• Pledge. [FN189] Unlike the above, a pledge is not
gratuitous, but contractual. The pre-requisites for a
pledge are: (a) a debt or other obligation [FN190];
(b) goods delivered by one person to another to
secure the debt or other obligation [FN191]; (c) an
intention to create a pledge as opposed to another
form of security interest such as a mortgage or a
lien. [FN192]
• Hire goods. [FN193] The pre-requisites for a hire of
goods are: (a) the delivery of goods to another; (b)
the purpose is for the bailee to use the goods for its
benefit; (c) payment is made for the hire; (d) a
promise to re-deliver the goods at a stated or
determinable time. [FN194] The party paying for the
hire is the bailee.
• Hire custody. [FN195] Hire of custody is the same
as deposit, apart from the *26 fact that the former
is paid to look after goods, the latter is not. [FN196]
The pre-requisites for a hire of custody are the same
as for the hire of goods, save that the purpose is for
the bailee to retain custody of the goods. [FN197]
The bailment arises when the bailor accepts custody.
[FN198] Examples of custodians for hire include:
auctioneers, warehousemen, agistors, wharfingers
and forwarding agents. [FN199] The party paying for
the hire is the bailor.
• Hire labour. [FN200] The pre-requisites for the hire
of labour is the same as for the hire of goods save
that the purpose is for the bailee to do something to
the goods, such as to repair them. [FN201] The
party paying for the hire is the bailor.
• Hire carriage. [FN202] The pre-requisites for the
hire of carriage is the same as for the hire of goods
save that the purpose is for the bailee to carry the
goods. [FN203] The party paying for the hire is the
bailor.
In conclusion, in the process of codification, the pre-
requisites of various types of bailment should be
stipulated. This will help show their relatively simple
nature and commonality.

7. Obligation of bailee duty of care

There are certain obligations of the bailee which are

common to all the forms of bailment mentioned in
section 4. [FN204] These comprise a duty:
*27 • of care;
• not to deviate;
• not to use the goods;
• not to delegate;
• to return the goods at the end of the bailment; and
• to account. [FN205]
The first of these, the duty of care, will now be
considered. It is contended that this duty is (and
should be) no different to that prevailing in tort.

(a) Roman law

Roman law provided for three degrees of care in

ascending order: slight (levissima diligentia);
ordinary (diligentia); and extraordinary (exactissima
diligentia). These degrees of care gave rise to three
degrees of negligence: gross, ordinary or slight.
[FN206] This threefold categorisation was laid down
in Justinian's Digest (AD534) and, more particularly,
by Ulpian. [FN207] As to which was applicable
depended, essentially, on whether the bailment was
for the reciprocal benefit of both the bailor and the
bailee, or not. [FN208]
• Deposit and mandate required a slight duty of care,
since they were for the benefit of the bailor not the
bailee.
• Pawn and hire required an ordinary duty of care,
since they were of mutual benefit.
• Loan for use required an extraordinary duty of
care, since the benefit was wholly that of the bailee.
[FN209]
Making the "degree of care proportioned to the
nature of the bailment" [FN210] has a certain logic
to it. However, it would have been appropriate for
Roman law *28 to assert that, once a bailee
voluntarily acquired possession of another's goods
(regardless of whose benefit it was for), it should
have the same duty of care. This is the position
modern English law has gravitated to, with a couple
of exceptions. [FN211]

(b) English law

Until recent times, a large amount of the case law

(and legal writing) on bailment was taken up with
the different degrees of the duty of care owed by the
various categories of bailee. [FN212] What these
degrees were under English law in respect of
bailment prior to Coggs v Barnard is still unclear.
[FN213]
• Bracton (writing c.1240) adopted Roman law to a
considerable degree. [FN214] A depositary was only
liable for gross negligence, a pawnee or bailee for
hire for ordinary negligence and a loan for use for
slight negligence. [FN215]
• It also seems clear that a common innkeeper (at
least from 1368) and a common carrier (at least
from 1596) bore strict liability. [FN216] This was by
reason of a policy decision, to prevent collusion
between innkeepers, carriers and thieves. [FN217]
*29 • By the time St Germain wrote, in 1532, the
liability of other bailees other than common
innkeepers--even if it had been strict--was
ameliorating. [FN218]
In Coggs, HoltC.J.--following Roman law and, more
particularly, Bracton--laid down three degrees of
care [FN219] depending in whose favour the
bailment was. [FN220] He also wondered whether he
had settled, or unsettled, the law. [FN221] Certainly,
the judicial policy of imposing strict liability on the
common carrier and the common innkeeper proved
unworkable and Parliament had to intervene.
[FN222] Jones, in his work in 1781, asserted three
degrees of care: "less than ordinary diligence",
"ordinary diligence" and "more than ordinary
diligence" in accordance with Roman precepts.
[FN223] Although Story, in his treatise in 1832,
followed this threefold categorisation his definitions
are different in their phraseology, adding to the
confusion. [FN224] However, it was Story who
helped point the way forward in observing that the
degree of care really depended on the circumstances
and the nature of the object bailed. [FN225] Afairly
decisive move away from different categories was
made in Giblin v McMullen where the Privy Council
held the duty of care of a gratuitous bailee to be that
of a prudent man. [FN226] Thus, Lord Chelmsford
stated, the question was, was there a:
*30 "... want of that ordinary diligence whichmen of
common prudence generally exercise about their
own affairs." [FN227]
In Pentecost v London District Auditor Goddard C.J.
dismissed the concept of gross negligence [FN228]
and in Houghland v RR Low (Luxury Coaches) Ltd
[FN229] the Court of Appeal effectively ended this
system of differing degrees of the duty of care in the
case of bailment, with Ormerod L.J. stating:
"... [T]he standard of care required in a case of
bailment ... is the standard demanded by the
circumstances of that particular case. It seems to me
that to try and put a bailment, for instance, into a
watertight compartment such as a gratuitous
bailment on the one hand, and a bailment for reward
on the other is to overlook the fact that there might
well be an infinite variety of cases, which might
come into one or the other category. The question
that we have to consider in a case of this kind; if it is
necessary to consider negligence, is whether in the
circumstances of this particular case a sufficient
standard of care has been observed by the
defendants or their servants." [FN230] [original
emphasis]
This duty of care, as Lord Browne-Wilkinson noted in
Henderson vMerrett, [FN231] is not a separate head
of liability:
"The liability of a fiduciary for the negligent
transaction of his duties is not a separate head of
liability but the paradigm of the general duty to act
with care imposed by law on those who take it upon
themselves to act for or to advise others. Although
the historical development of the rules of law and
equity have, in the past, caused different labels to be
stuck on different manifestations of the duty, in truth
the duty of care imposed on bailees, carriers,
trustees, directors, agents and others is the same
duty; it arises from the circumstances in which the
defendants were acting, not from their status or
description. It is the fact that they have all assumed
responsibility for the property or affairs of others
which renders them liable for the careless
performance of what they *31 have undertaken to
do, not the description of the trade or position which
they hold." [FN232]
Houghland was followed in Sutcliffe v Chief
Constable of West Yorkshire with Otton L.J. asserting
that no distinction should be made between a
gratuitous bailment and one for reward. [FN233]
What is the position as to the duty of care in respect
of bailment today? It is contended that the duty
imposed on all bailees is (and should be) the same--
determined in accordance with the normal tort
principles. [FN234] This includes gratuitous bailees
once they have agreed to accept the goods. [FN235]
As a result, case law relating to the duty of care in
respect of bailment pre-Houghland should be
ignored. [FN236] It is also asserted that Halsbury
should remove statements based on old bailment
case law which reflect differing levels of duty
depending on their categorisation. [FN237]
In conclusion, one would argue that the duty of care
of all bailees (including the common carrier and the
common innkeeper) [FN238] is, and should be,
determined in accordance with general tort
principles. That is, there should be no "bailment
specific" duty of care.

8. Obligation of bailee duty not to deviate

A bailee has a general duty not to deviate from the

terms of the bailment. [FN239] That *32 is, not to
substantially depart from the prescribed course of
performance. [FN240] This duty applies to all
bailees. [FN241] In the case of deviation, the bailee
loses its right to continued possession of the bailed
goods. [FN242] It will also be held strictly liable for
any subsequent loss, or damage, to the goods. This
strict liability for deviation will apply whether the loss
or damage was foreseeable or not [FN243] and
whether the bailment is gratuitous or not. [FN244]
There are certain exceptions:
(a) Inevitable in any case. In Davis v Garrett, Tindal
C.J. indicated that a bailee could avoid responsibility
if the loss or damage, "must have happened if the
act complained of [i.e. the deviation] had not been
done". [FN245] In similar vein, in Morrison & Co Ltd
v Shaw, Savill and Albion Co Ltd, Swinfen Eady L.J.
noted that the exception would only apply if, "the
loss must have occurred in any event, and whether
they had deviated or not". [FN246] Normally, this
will be difficult for a bailee to prove.
(b) Waiver of the bailor. In Hain Steamship Co Ltd v
Tate & Lyle Ltd [FN247] it was confirmed that the
bailor can waive the deviation. Lord Atkin stated:
"he can elect to treat the contract as subsisting; and
if he does this with knowledge of his rights he must
in accordance with the general law of contract be
held bound". [FN248]
(c) Inherent defect in goods. In Lilley v Doubleday,
Grove J. made reference to the situation where, "the
risk is independent of his [the bailee's] acts and *33
inherent in the property itself". [FN249] This may
also be seen as an instance of (a) above. [FN250]
Circumstances where deviation has been held to
occur in cases of bailment include the following:
when the bailed goods are:
(i) used, when not permitted [FN251];
(ii) used for an unauthorised purpose [FN252];
(iii) misused [FN253];
(iv) held in a location different to that agreed
[FN254];
(v) stored when they should be carried [FN255];
(vi) not re-delivered at the agreed time [FN256];
(vii) not returned a reasonable time after demand
[FN257];
(viii) redelivered to the wrong person [FN258];
*34 (ix) subject to an unauthorised delegation
[FN259];
(x) subject to an unauthorised sub-bailment
[FN260];
(xi) subject to unauthorised lending to another
[FN261];
(xii) carried by a route which has not been agreed
[FN262];
(xiii) delay, in the case of carriage of goods by sea
[FN263]; and
(xiv) destroyed, or permanently altered, by action of
the bailee. [FN264]
Where the bailment is governed by a contract, such
as in the case of hire, provision as to these events is
likely to be made in the contract, as well as the
consequences of breach. In the case of (xii),
deviation today rarely applies other than to the
carriage of goods by sea. In the case of the carriage
of goods by air or inland waterway, deviation usually
only occurs in the case of emergency. In the case of
the domestic carriage of goods by road or rail,
standard terms and conditions invariably permit the
carrier to choose (or to alter) its route. [FN265]
In conclusion, any codification of the law of bailment,
should make provision on deviation and the
imposition of strict liability, subject to the limited
exceptions referred to in (a)-(c).

9. Obligation of bailee--duty not to use goods

The general principle is that a bailee has no right to

use the goods, without the consent (express or
implied) of the bailor. [FN266] Ultimately, this
principle derives from Roman law in which this form
of deviation was treated as a particularly culpable
act. Story noted:
*35 "The Roman law treated a wilful deviation from
the use intended as bringing with it the odium of
theft, in the sense of that word as used in that law,
which is more extensive than in ours." [FN267]
As to this express or implied consent, in the case of:
• Loan for use [FN268] and the hire of goods,
[FN269] it is intended the bailed goods be used by
the bailee. Indeed, that is an integral part of the
bailment. However, the goods can only be used for
the purpose intended by the parties, whether that
intent was express or implied. [FN270] If not, there
will be a deviation (see section 8);
• Mandate, the position is less certain--it depends on
the purpose for which the goods were bailed
[FN271];
• Deposit, [FN272] pledge and the other types of
hire (i.e. hire of custody, labour and carriage), it is
not intended the bailed goods be used by the bailee,
simply that it look after them, do work on them or
carry them.
There appears to be one exception to this general
prohibition. It has been asserted by legal writers
(although there is scant case law) that a bailee can
use the bailed goods if this is necessary for their
preservation. [FN273] For example, the milking of a
cow or the riding of a horse. This exception has been
referred to, in particular, in *36 the context of
pledge. [FN274] It is asserted that this exception
should be viewed as a case of implied consent.
[FN275] Further, it will, in any event, be rare today.
[FN276]
In conclusion, codification of the law of bailment
should provide that bailed goods can only be used
with the consent of the bailor, express or implied.

10. Obligation of bailee duty not to delegate

The general principle is that the bailment of goods is

personal to the bailee and that there is no power of
delegation save where there is consent express or
implied. [FN277] Delegation in breach of this
amounts to a deviation (see section 8). Examples
prohibiting delegation may be found in the case of
deposit, [FN278] mandate, [FN279] loan for use,
[FN280] hire of custody [FN281] and hire of labour.
[FN282] In the case of contractual bailments, the
position will almost invariably be regulated by the
terms of the contract. For example, in Davies v
Collins, Lord Greene M.R. stated:
"Whether or not in any given contract performance
can properly be carried out by the employment of a
sub-contractor must depend on the proper inference
to be drawn from the contract itself, the subject
matter of it, and other material surrounding
circumstances." [FN283]
There appears to be a general exception where
delegation would be reasonable in the ordinary
course of business. This has been formulated in a
rather piecemeal fashion by Halsbury in respect of
certain categories of bailment when, it is asserted, it
should apply to all those categories referred to in
section 4. Thus, Halsbury asserts that, in the case of
mandate, where, in the ordinary course of *37
business, custody of the goods would naturally
devolve on, or the acts would be performed by, a
servant or agent of the bailee, delegation is
permissible. [FN284] In the case of loan for use,
Halsbury states:
"When ... the actual use by a third party is necessary
for the reasonable enjoyment of the chattel lent, the
mere fact of its being lent for use implies a limited
power of delegation in the borrower. Thus, the loan
of a traction engine, a threshing machine, or some
other piece of machinery, must, in the majority of
cases, of necessity imply both superintendence and
use by some person other than the actual and
responsible borrower." [FN285]
And, in the case of hire of labour, Halsbury asserts:
"In some cases the nature of the work will be such
that permission to delegate or sub-contract can be
inferred." [FN286]
One would suggest that these formulations by
Halsbury--and the use of words such as "ordinary
course of business", "implies" and "inferred"--are
adequately embraced in the concept of "implied"
consent. In the case of delegation, the bailee
remains liable if loss or damage occurs to the goods
during the period of delegation. [FN287] Both in the
case of contractual [FN288] and gratuitous bailments
[FN289] the bailee is liable for the acts of its
employees and independent contractors in the
course of their employment whether according to
ordinary principles of vicarious performance or by
virtue of an implied term of the bailment. [FN290]
*38 In conclusion, for the purposes of codification, it
should be provided that a bailee has no right to
delegate save where there is consent express or
implied from the bailor. Further, that delegation will
be implied in the case where, in the ordinary course
of business, it would be regarded as reasonable in
the circumstances.

11. Obligation of bailee duty to return goods

Under Roman law, if a bailee did not return the

goods at the appointed time, it was deemed to be in
default (in mora) and the bailee was responsible for
any loss and damage resulting thereafter. [FN291]
Street noted that the obligation imposed on the
bailee to return the goods at the end of the bailment
was recognised early on in the English law of
bailment. [FN292] It is asserted that the current
position under English law is as follows:
• Gratuitous bailment. In the case of gratuitous
bailment, the bailee is bound to return the goods on
demand [FN293] or otherwise in accordance with the
bailor's instructions. [FN294] This applies to a
deposit, [FN295] amandate [FN296] and a loan for
use. [FN297] *39 There is also an obligation to
return the bailed goods when the purpose of the
bailment has ended [FN298] or where the gratuitous
bailee declines to accept the bailment, where it has
the goods. [FN299]
• Contractual bailment. In the case of a contractual
bailment, the bailee is bound to return the goods in
accordance with the terms of the contract, express
or implied. This applies to a pledge [FN300] and to
hire. [FN301]
Exceptions to the above apply where the bailed
goods have been tendered by the bailee and the
bailor refuses to accept it [FN302] or where the
bailee has a lawful excuse. [FN303] As for the place
where the goods should be returned at the end of
the bailment, if a particular place for redelivery is
agreed on, this will regulate the matter. [FN304] In
the absence of this, it would seem that the bailee
merely has to make the goods available for collection
at its own premises, as (and when) the bailor calls
on him to do so. In Capital Finance Co v Bray, a case
where a hire-purchase agreement had been
terminated, Lord Denning stated:
"... [O]nce the hire-purchase agreement was
determined and not reinstated, [the hirer] was under
no obligation to take the goods to the [owners]. He
could leave the goods at his house until the owners
came to collect them... There is no obligation on a
person who has another person's goods to return
them to him, except by contract." [FN305]
In the case of a gratuitous bailment, it has been said
by legal writers that, in the absence of provision, the
goods ought to be returned to the place where they
were *40 first accepted for bailment. [FN306] Also,
that no unreasonable burden should be placed on the
bailee, who gains nothing from the transaction.
[FN307] One would assert that the position in
respect of both contractual and gratuitous bailments
should be the same, in the absence of agreement,
express or implied. It is sufficient for the bailee to
make the goods available at its premises.
In conclusion, any codification of the law of bailment
should make provision concerning the return of the
bailed goods. In particular, when and where the
bailed goods must be returned, in the absence of
agreement express or implied.

12. Obligation of bailee duty to account

A bailee is liable to account to the bailor for the

bailed goods. [FN308] Exactly what "to account"
covers is unclear, since there appears to have been
no judicial interpretation (nor legal writer) who has
analysed this in detail. [FN309] However, one would
suggest that it means that a bailee must show it has
acted in accordance with the terms of the bailment.
That is, as authorised by the bailor. Certainly, the
duty to account includes the following.

(a) Interest or profit on bailed goods

As well as the return of the bailed goods, the bailee

must return to the bailor any increase or profits
which derives from them, in the absence of
agreement, express or implied [FN310]:
*41 • "increase" includes the young of animals, in
the case where animals comprise the bailed goods
[FN311]; and
• "profits" includes interest on any money on
deposit, as well as any secret profits made during
the course of the bailment. [FN312] Also, for
example, any hire earned by a vehicle let on hire.
[FN313]
The bailee must also account to the bailor for
everything it may recover from a third person
beyond its own interest. Therefore, it must pay over
to the bailor any sum it has recovered as
representing: (i) the value of the goods [FN314]; (ii)
their permanent deterioration; or (iii) the cost of
repairing them if the bailee has not himself repaired
them. [FN315]

(b) Loss or damage to bailed goods--burden of proof

The bailee must account to the bailor for any loss, or

damage, to the bailed goods during the term of the
bailment which arises from its fault or that of its
servants, agents or sub-contractors. The burden of
proof lies on the bailee. [FN316] Thus, in Gosse
Millard v Canadian Government Merchant Marine,
Wright J. stated:
"It is, I think, the general rule applicable in English
law to the position of bailees that the bailee is bound
to restore the subject of the bailment in the same
condition as that in which he received it, and it is for
him to explain or to *42 offer valid excuse, if he has
not done so. It is for him to prove that reasonable
care had been exercised." [FN317]
This reversed burden of proof is an exceptional rule.
[FN318] In terms of history, it probably derives from
policy. [FN319] It may originate from the early cases
concerning the imposition of strict liability in the case
of the common innkeeper and carrier. [FN320]
Certainly, its modern justification appears to be one
of policy. [FN321] Also, perhaps, on the basis that
the bailee is in a better position to show what has
happened to the bailed goods. Thus, in The Ruapehu,
Atkin L.J. stated:
"The original principle seems to be grounded on a
common sense view of the facts. The bailee knows
all about it: he must explain. He and his servants are
the persons in charge, the bailor has no opportunity
of knowing what happened." [FN322]
The bailee is not bound, however, to show exactly
how the loss or damage occurred, simply to show
that it, or its servants or agents, was not at fault
(i.e. that *43 the bailee exercised reasonable care)
[FN323] or that the damage would have occurred
anyway even though it did not exercise the same.
[FN324] Generally, the bailee is not liable for loss
and damage caused without its fault. For example,
where the loss or damage arises through acts
beyond the bailee's control (e.g. accident or fire) or
where it was caused by a third party for which the
bailee is not responsible (e.g. its being stolen).
[FN325] However, if the bailee deposits the bailed
goods together with his own goods with a third party
it is liable for any loss, or damage, if the bailor did
not agree to this--even though it may have been
aware of it. [FN326] The bailee will not be
responsible for ordinary wear and tear, [FN327]
including where it may lawfully use the bailed goods
(see section 9). The bailee is liable for loss and
damage to the bailed goods as a result of deviation,
save where it falls within the exceptions referred to
in section 8(a)-(c). Finally, the bailee is not liable for
latent defects, the bailor generally being responsible
for the same, see section 15.
In conclusion, codification of the law of bailment
should also deal with the obligation of the bailee to
account--including the burden of proof for loss or
damage to the bailed goods being on the bailee.

13. Obligation of bailor--authority to bail

There appear to be few obligations imposed on a

bailor. [FN328] One is the authority (i.e. the legal
right) to bail the goods. In the case of contractual
bailments, the position is invariably governed by
contract or by statute.
*44 • in the case of pledge, the pledgor impliedly
warrants that it is the owner of the pledged goods
[FN329] or that it has the owner's authority to
pledge them [FN330];
• in the case of hire, the Supply of Goods and
Services Act 1982 implies various terms into
contracts for the hire of goods. [FN331] These
include:
"... an implied condition on the part of the bailor that
in the case of a bailment he has a right to transfer
possession of the goods by way of hire for the period
of the bailment and in the case of an agreement to
bail he will have such right at the time of the
bailment." [FN332]
It is also said that the bailor is estopped from
denying its authority to bail in the case of contractual
bailments. [FN333] In the case of gratuitous
bailments it is asserted that a similar estoppel arises,
although the position is less clear. [FN334] Even if
this is not so, in any codification, a warranty should
be implied by law.
In conclusion, in the codification of the law of
bailment there should be an implied warranty by the
bailor that it has authority (ie. the legal right) to bail
the goods.

14. Obligation of bailor--quiet enjoyment

In the case of contractual bailments, invariably, the

matter is governed by contract or by statute.
*45 • In the case of a pledge, even in the absence
of express provision, the pledgee has a right to
possess the pledged property until the debt (or other
obligation) is satisfied or the debt is tendered.
[FN335]
• In the case of hire, the Supply of Goods and
Services Act 1982 implies various terms into
contracts for the hire of goods. [FN336] These
include an implied warranty that the baileewill enjoy
quiet possession of the goods for the period of the
bailment except so far as the possession may be
disturbed by the owner or other person entitled to
the benefit of any charge or encumbrance disclosed
or known to the bailee before the contract is made.
[FN337] This also applies in the case of a transfer of
goods, such as in the case where a bailee provides
materials under a contract of labour. [FN338]
• In the case of gratuitous bailments, Palmer has
proposed that a right of quiet possession exists as a
matter of bailment, independent of contract or tort.
[FN339] Certainly, it would seem reasonable for the
law to estop a bailor, even in the case of a gratuitous
bailment, from denying the bare right of the bailee to
possess the bailed goods. [FN340] After all, the
bailor has requested that party to accept the goods
on bailment. However, one would also assert that, in
the case of a gratuitous bailment, the bailee's right
to possess is precarious and that there is an
obligation to return the bailed goods to the bailor on
demand, assuming no contrary instruction of the
bailor. [FN341]
In conclusion, a codification of the law of bailment
should provide for the bailee to have quiet
enjoyment of the goods during the term of the
bailment.

*46 15. Obligation of bailor--fitness for purpose, etc.

The position is invariably governed by tort, contract

or statute.

(a) Bailed goods--fitness for purpose and satisfactory

quality

The Supply of Goods and Services Act 1982 implies

various terms into contracts for the hire of goods.
[FN342] These include an implied condition in
respect of the goods being:
• "reasonably fit" for any particular purpose the hirer
makes known [FN343]; and
• of satisfactory quality. [FN344]
Implied into contracts for the transfer of goods
(which, for example, will arise in the case of the
supply of materials by a bailee in the case of hire of
labour) are similar terms. [FN345] In the case of a
pledge, there is no intention that the goods be used
(see section 9). Thus, there is no implied warranty
as to fitness for purpose or satisfactory quality.

(b) Bailed goods--safety

The Employer's Liability (Defective Equipment) Act

1969 imposes liability on an employer when an
employee suffers personal injury in the course of his
employment due to defective equipment provided by
his employer for the purposes of the employer's
business and where the defect is attributable, wholly
or in part, to the fault of a third party, whether
identifiable or not. The Consumer Protection Act
1987 imposes strict liability on producers and others
(including suppliers) in respect of defective products,
a product being defective when its safety is "not
such as persons generally are entitled to expect".
[FN346] Safety is the degree of safety which *47 a
reasonable consumer would expect from the product.
[FN347] A supplier includes a bailor since "supply" is
defined by the Act to include the selling, hiring or
lending of goods. Thus, as Palmer notes, a person
who lends or hires goods, whether for reward or not
(so long as the supply was in the course of a
business) may be liable for personal injury or
damage to property where caused by the product
lent or hired. [FN348] In the case of the hire of
carriage, at common law, the consignor impliedly
warrants the safety of the goods. In Burley v
Stepney Corp, Hallett J. stated:
"... [T]here is an implied warranty that goods
delivered for carriage are safe to be carried, and that
is so irrespective of whether the person delivering
the goods to be carried knows of the danger, and
irrespective of whether the person to whom they are
delivered is under a common law duty or a statutory
duty to carry them." [FN349]
The carriage of goods by air, land, sea, rail, road and
inland waterway is also regulated to a high degree
by international convention, statute or standard
terms and conditions, which often make provision as
to the safety of the goods. In the case of a pledge,
there may be a contractual warranty that the goods
are safe, that is, not dangerous. The position seems
to be unclear in respect of any implied warranty.

(c) Bailed goods: inherent (latent) defects

Under the general principles of tort a bailor will be

liable to a bailee in damages for injury arising from a
defect in the bailed goods which is not apparent (i.e.
inherent or latent defects) and which rendered it
unfit for the purpose for which it is bailed, when it
has failed to communicate the fact to the bailee,
being aware of the same. [FN350] In respect of
defects of which the bailor is unaware, the bailor
owes a duty of reasonable care to warn the bailee of
any defect in the chattel of which the bailor should
reasonably have been aware. An old case, Coughlin v
Gillison, dealing with a loan for use, proposed a
lesser degree of responsibility in respect of
gratuitous bailments. Collins L.J. declared:
"It is the [bailor's] duty to communicate to the
borrower defects in the article lent of which he is
aware, and if either he deliberately or by gross
negligence *48 does not discharge this duty, he is
liable for injury resulting to the borrower. That in my
opinion, is the limit of his liability." [FN351] [original
emphasis]
One would assert that this case would be ignored
today and that the duty of care would be the same in
tort regardless of whether the bailment was
contractual or gratuitous. [FN352]
In conclusion, codification should provide for an
implied warranty in the case of bailed goods that
they are safe. The bailor should also be responsible
for latent defects not brought to the attention of the
bailee.

16. Obligation of bailor--to pay expenses

(a) Expenses

In respect of contractual bailments such as pledge

and hire, express provision is invariably made in the
relevant contract as to who will be responsible for
expenses incurred in looking after the bailed goods
during the bailment period. This is usually the bailee
in the case of hire. [FN353] In the absence of
express provision, it is asserted that a bailee has the
right to recover its reasonable expenses incurred in
looking after the bailed goods. [FN354] This is best
regarded as being on the basis of restitution.
[FN355]
• In the case of pledge, a pledgee has the right to
recover maintenance expenses when the pledged
property needs to be maintained. [FN356]
*49 • In the case of gratuitous bailments such as
deposit [FN357] and mandate [FN358] it is asserted
the position is the same, the rationale being that it is
unfair to leave the bailee out of pocket when he was
doing something for free. [FN359] The exception is
the loan for use--a bailment which is wholly for the
benefit of the bailee. [FN360] It should bear the
expense incurred in looking after the bailed goods, in
the absence of any agreement--express or implied.
[FN361] Halsbury summarises the difference
between these types of gratuitous bailment:
"In deposit and mandate the bailor has all the
advantages of the bailment. In gratuitous loan for
use the reverse is the case. This is a bailment where
a chattel is lent by the owner to the bailee for the
express purpose of conferring a benefit upon the
bailee, without any corresponding advantage to its
owner." [FN362]
Story erroneously asserted that the depositary and a
mandatory had a common law lien for their
expenses. This is incorrect since a lien requires
improvement in the goods. [FN363]

(b) Extraordinary expenses

Extraordinary expenses may be taken to mean

expenses which are necessary for the immediate
preservation of the bailed goods or which have
arisen from unforeseen circumstances beyond the
bailee's control. One would assert that these are
generally recoverable from the bailor--including hire
[FN364] and loan for use [FN365]--since they are
necessary for the continued existence of the bailed
goods, a *50 matter of direct importance to the
owner, the bailor. [FN366] Recovery of extraordinary
expenses would accord with the general principles of
unjust enrichment. [FN367]
In conclusion, codification of the law of bailment
should make provision on the bailee being able to
recover its reasonable expenses in maintaining the
bailed goods (save in the case of a loan for use). And
for all bailees being able to recover their
extraordinary expenses.

17. Estoppel, interpleader, attornment, claims and

damages

Halsbury notes certain considerations common to all

classes of bailment, viz.:
• estoppel;
• interpleader;
• attornment;
• claims and damages;
• rights and obligations as regards third persons.
[FN368]
As a result, for the purposes of codification, these
will cause little problem, and are not considered in
this article, save to note that, in the case of
estoppel, it is unclear whether it still exists. [FN369]
At common law, a bailee is estopped from setting up
against his bailor's demand for a redelivery of the
goods bailed the right (or title) of a third person to
the property in it. This estoppel was substantially
abrogated by the Torts (Interference with Goods) Act
1977. [FN370] In fact, one would suggest that it has
been wholly abrogated. [FN371]
*51 18. Gratuitous bailment

Having considered those obligations which are

common to bailees and bailors, it remains to be
considered whether there are other issues which any
codification of the law of bailment needs to deal with.
In the case of gratuitous bailments in particular, one
would assert that the answer is "very little".
Gratuitous bailments giving rise to litigation were
rare both when Jones" work was extant (1781-1833)
and when Story's work was extant (1832-1878).
They remain so today. The explanation is relatively
simple. People are rarely prepared to assume of
obligations of a commercial, or onerous, nature
without payment. [FN372] Further, when they do,
and the goods are subsequently lost or damaged, the
bailor usually does not litigate, given that the
bailment was, essentially, philanthropic in nature.
Schouler observed in the case of mandate:
"Cases involving the question of the degree of care
required of the commodatory seldom reach the
courts, perhaps for the reason, suggested by one
writer, that where honor does not hold the borrower
to his duty, delicacy restrains the lender from
pursuing legal remedies." [FN373]
In terms of codification, it may be noted that, in the
case of deposit, there has been a tendency to divide
it into sub-categories. Roman law sub-divided
deposit into necessary and voluntary deposits.
[FN374] Story adopted this division. He also referred
to a sub-category of involuntary deposit (which
Halsbury calls an accidental deposit). [FN375]
Halsbury refers to four sub-categories of deposit,
viz.:
• Necessary: when goods are deposited with another
without any real choice. For example, in an
emergency (e.g. fire, flood, shipwreck, riot or other
*52 unforeseen calamity). [FN376] There appears to
be no direct English case law on this. [FN377]
• Mistake: when goods are deposited with another by
mistake. For example, in the case of mistaken
identity. [FN378]
• Accidental [FN379]: when goods are deposited
without the intention of the bailor or bailee. For
example, timber carried by the tide onto a towpath
or fruit or trees falling into a neighbour's garden.
There is scant case law. [FN380] Further, this is
better regarded as a case of finding. [FN381]
• Involuntary: when goods are deposited with
another without their consent. For example, when
goods are delivered to a person unasked. [FN382]
One would assert that the above categorisation is
unnecessary. "Mistaken" deposit [FN383] and
"involuntary" deposit are better treated as cases of
involuntary bailment. "Accidental" deposit is better
treated as an example of finding, see section 19. In
the case of "necessary" deposit, the bailee has no
legal obligation in respect of the goods until he
accepts them. And, when he agrees to accept them,
he should have a duty of care in tort, as well as the
other obligations of a bailee previously discussed. No
sub-categorisation is necessary.
In conclusion, deposit should include necessary
deposit only. However, this does not need to be
treated as a separate sub-category.
*53 19. Mutuum and finding

Any codification of the law of bailment should deal

with mutuum, which is a quasi-bailment. Also, with
finding which has long been treated as a form of
bailment.

(a) Mutuum

Halsbury defines mutuum as a "loan of something

which is not to be returned in specie, but which is to
be replaced by something similar and equivalent".
[FN384] The concept was known to Roman law
[FN385] and had entered English law at least by the
time of Glanvill (c.1189) since he mentions it.
[FN386] Bracton (c.1240) gave a useful summary of
its nature:
"An obligation is contracted by a thing, as by the
giving of a mutuum, a loan for consumption, which
consists of things reckoned by weight, number or
measure... Such things, (ascertained) by weighing,
counting or measuring, are given so that they at
once become the property of those who take them,
for that is properly termed a mutuum which, being
meum becomes tuum, and whenever not the very
things but others of the same kind are returned to
the creditor ..." [FN387]
Legal writers, such as Jones [FN388] and Story,
[FN389] have also provided descriptions or
definitions. Mutuum is not strictly a bailment, since
ownership in the goods passes *54 to another, the
thing lent not having to be returned. [FN390]
However, it has been treated by the legal texts as a
gratuitous quasi-bailment. It must be distinguished
from barter and from a loan for use. [FN391] It is
restricted to goods which are intended to be
consumed and which are capable of being calculated
by reference to number, weight or measure (e.g.
money, corn, wine). Like a gratuitous bailment, the
borrower is obliged to return equivalent goods on
demand, [FN392] regardless of whether the
borrowed goods have been lost or destroyed.
[FN393] In any codification of the law of bailment, it
would seem useful to separately cover this quasi-
bailment. [FN394]

(b) Finding [FN395]

In the legal texts on bailment, finding is generally

treated as a form of quasideposit an accidental
deposit. [FN396] Story described it as, "where a
party comes lawfully to the possession of another
person's property by finding it". [FN397] It is
asserted that finding shares the same prerequisites
as a deposit (see section 6) save for delivery. It is a
gratuitous taking into custody and the finder is under
no liability until it accepts the goods, by taking them
into its care and control. [FN398] One would assert
that the duty of care of a finder in tort *55 should
be no different to that of a depositary, being a duty
to take reasonable care of the goods. [FN399] In
Parker v British Airways Board, Donaldson L.J.
thought (obiter) that a finder of goods on public
property had an obligation to take reasonable steps
to locate the owner and acquaint him with the
finding. [FN400]
• Like all bailees, a finder should also have an
obligation to return the goods (on demand, like a
depositary, see section 11), [FN401] not to use the
goods and to account (see section 12). Obligations in
respect of deviation and delegation are less certain.
[FN402]
• There would seem to be no obligations on the
bailor. That is, an authority to bail, quiet enjoyment,
fitness for purpose or latent defects (see sections
13- 16).
• It would seem reasonable for a finder, like a
depositary, to be able to recover any reasonable
expenses it has incurred in taking the lost goods into
its possession and searching for their owner,
[FN403] as well as extraordinary expenses (see
section 16). [FN404]
*56 In conclusion, any codification of the law of
bailment should also cover mutuum and finding.
[FN405]

20. Sub-bailment [FN406]

Sub-bailment should be distinguished from

substitutional bailment, which arises when the
original bailee is replaced by another who acts as
bailee in its stead. [FN407] Also, from quasi-
bailment, in which the intermediate bailee does not
possess the goods prior to contracting with the
ultimate bailee to take possession. [FN408] Palmer
defined sub-bailment as:
"... that relationship which arises whenever a bailee
of goods transfers possession to a third party for a
limited period or a specific purpose, on the
understanding (express or implied) that his own
position as bailee is to persist throughout the
subsidiary disposition." [FN409]
In The Winson, Lord Diplock stated that a sub-bailee
was a person:
"... to whom actual possession of goods is
transferred by someone who is not himself the owner
of the goods but who has a present right to
possession of them as bailee of the owner." [FN410]
Under a sub-bailment, the original bailee remains
responsible for the goods as bailee and it retains the
right to possess the goods when the sub-bailment
ends. [FN411] The bailee (as agent of the bailor) is
liable if it is negligent in selecting the *57 sub-bailee
[FN412] and it is responsible for the defaults of the
sub-bailee. [FN413] The issue of sub-bailment has
assumed increasing importance. [FN414]

(a) Liability of sub-bailee: authorised sub-bailment

Usually, it is clear whether the bailor has permitted

any sub-bailment, since this will often be a term of
its bailment contract. In the absence of this it must
be determined whether the bailment is personal to
the bailee or not. Warehousing contracts have been
held to be personal. [FN415] So too, where a special
skill is relied on or where the bailed goods are of
such a value, or nature, that the bailment must be
construed as personal. [FN416] The burden of proof
is on the sub-bailee. [FN417] When the sub-bailee
accepts possession, it assumes the obligations of a
bailee against the original bailor [FN418] on the
basis of a collateral bailment. [FN419] This
relationship exists independently of any contract
between the two or any attornment. [FN420] The
sub-bailee will owe the bailor the same duties as a
bailee. [FN421] This applies whether *58 the sub-
bailment is for reward [FN422] or gratuitous.
[FN423] The sub-bailee's duty of care will lie in tort.
[FN424] Thus, a bailor can claim against a sub-bailee
for loss of, or damage to, the goods. [FN425]
In conclusion, in the case of an authorised sub-
bailment, it is asserted that, in principle, the position
of a sub-bailee should be no different to that of a
bailee. [FN426] Thus, a sub-bailee should have the
same basic obligations as a bailee viz. a duty: (a) of
care; (b) not to deviate; (c) not to use the goods;
(d) not to delegate; (e) to return the goods at the
end of the bailment; and (f) to account (see sections
7-12). It will also have the right to expenses.
[FN427] The bailor should also have the same
obligations towards the sub-bailee as it has towards
the bailee, viz. authority to bail, quiet enjoyment,
fitness for purpose and latent defects (see sections
13-15). As for payment, although it seems that,
presently, a sub-bailee cannot claim against the
bailor, [FN428] it is asserted this position should be
reviewed since, anomalously, the sub-bailee will
often have a lien in the case of hire, at least.
[FN429]

(b) Liability of sub-bailee: unauthorised sub-bailment

The position is less certain. [FN430] If the bailee

parts with possession of the bailed goods without
authority, it will have committed a deviation (see
section 8) and it will remain responsible for the sub-
bailee. [FN431] As for the unauthorised sub-bailee, it
is asserted that its liability should be no different
towards the bailor than if it had been authorised.
This is because its liability is the same as that of a
bailee having accepted the goods, bailment
comprising the voluntary possession of another's
*59 goods. [FN432] Thus, it owes a duty of care in
tort towards the bailor [FN433] which should also
apply when the bailed goods are lost (or stolen) by a
third party during the course of the sub-bailment.
[FN434] The burden of proof should be on the sub-
bailee. [FN435] This should also apply where the
sub-bailee is not aware of the bailor (i.e. the bailor is
undisclosed). [FN436]
In conclusion, in any codification of bailment,
provision should also be made as to sub-bailment.
The position of the sub-bailee should, in principle, be
no different to that of the bailee, save, perhaps, in
respect of payment.

21. Involuntary and unconscious bailment

(a) Involuntary bailee

As Bell notes, an involuntary bailee is best treated as

a "distinct phenomenon", since its obligations are
different to those of a bailee. [FN437] Indeed,
"bailee" is a contradiction in terms since a person
can (and should) only be a bailee where he
voluntarily (willingly) consents to the same. [FN438]
It is contended that an involuntary bailee would
include those acting under a legal power, as well as a
person lacking the capacity to accept the goods (e.g.
when drunk or mentally ill). [FN439] Legislation has
dealt with the case of unsolicited goods in a business
context. In such a case, the *60 recipient can
generally treat them as an outright gift. [FN440]
What obligations of a bailee should be applied to an
involuntary bailee? It is contended that an
involuntary bailee should have:
• a reasonable duty of care like that of a finder
[FN441];
• an obligation to return the goods on demand like
that of a gratuitous bailee [FN442];
• a duty not to use the goods [FN443];
• a right to recover expenses, including
extraordinary expenses [FN444];
• a duty to account with the same burden of proof as
a bailee [FN445]; and
• the duty not to deviate would not seem applicable.
The obligations of a bailor (authority to bail, quiet
enjoyment, fitness for purpose and inherent defects)
would not seem to apply save, possibly, for inherent
defects. [FN446]

(b) Unconscious bailee

If bailment is defined to arise when "one person is

voluntarily in possession of goods belonging to
another" (see section 3) this pre-supposes
knowledge by that person that it is holding the goods
of another. [FN447] In AVX v EGM Solders, [FN448]
*61 Staughton J. considered the position of a person
with no such knowledge. Such a person is often
termed an unconscious bailee [FN449] although the
use of the word "bailee" is a mis-reference.
Staughton J. considered that an unconscious bailee
embraced, at least, three distinct situations, where a
person:
• is wholly unaware of the presence of goods within
their possession but, in fact, has possession of them;
or
• is aware they are the bailee of certain goods but
unware of some particular item in their contents; or
• possesses goods erroneously believing them to be
their own. [FN450]
In AVX v EGM Solders, [FN451] it was held that an
unconscious bailee owed, at least, a duty of care in
tort to check who was the true owner of goods, prior
to scraping them. [FN452] Palmer asserts that his
duty is not more extensive. [FN453] As to the other
obligations of a bailee such as the duty not to
deviate, not to use the goods, not to delegate, to
return the goods at the end of the bailment and to
account it would seem that, being unaware it is a
bailee, these are not applicable. Nor the duties of the
bailor (authority to bail, quiet enjoyment, fitness for
purpose and inherent defects).
In conclusion, neither an involuntary nor an
unconscious bailee should be treated as a bailee.
However, the rules governing them should be set
out, in any codification of the law of bailment.

22. Benefits of codification

Zimmermann has declared bailment to be a

"somewhat labyrinthine concept". [FN454]
"Confusing" is a better word. Much of the legal
writing on bailment, from 1781 to date, has been
pre-occupied with four main issues:
*62 • trying to alight on an adequate definition of
bailment;
• categorising various types of bailment;
• determining whether the basis of bailment lies in
contract, tort, property or equity (or the extent of
the admixture) [FN455];
• analysing the duty of care to be shown by different
categories of bailee.
What is the way forward? One would propose a
"clean break" with much of the redundant thinking of
the past. Bailment is ripe for codification. Further,
this would not be an unduly onerous exercise. A
review of virtually the entire canon of legal texts
[FN456] indicates that behind all the analysis and
commentary there are some relatively simple rules
[FN457] covering the rights and obligations of all
bailees and bailors (with some quirks and
exceptions). [FN458] Codification would remove the
historical dross and much confusion. Trawling
through antiquated (and often contradictory) case
law would be a thing of the past saving time and
expense. It would also enable lawyers and judges to
determine with greater ease what should be the
rights and obligations of sub-bailees, involuntary
bailees and unconscious bailees. One would suggest
that the codification of bailment might be achieved
via a three-stage process:
• abolish the concept of the common carrier
[FN459];
• abolish the strict liability of the common innkeeper
(hotelkeeper) [FN460]; and
• codify the principles of bailment, in terms of the
rights and obligations of the bailee and the bailor.
In the latter process, bailment would be defined. So
too involuntary bailment, unconscious bailment, sub-
bailment and mutuum.
*63 • Bailment would be stated to include, but not
be limited to, deposit (including accidental deposit),
mandate, loan for use, pledge, hire, finding, hire-
purchase and conditional sale. The pre-requisites of
all but the latter three would be stipulated.
• The obligations of the bailee would be stipulated its
duties of care, not to deviate, not to use the bailed
goods, not to delegate, to account and to return the
goods at the end of the bailment. Also, its right to
recover expenses.
• The duties of the bailor would also be stipulated its
authority to bail, its obligation to accord the bailee
quiet enjoyment of the bailed goods; the bailed
goods being fit for purpose and the bailor's liability
for inherent defects.
Codification of the law of bailment would take up few
pages of legislation. It would also clear the ground
for the codification of pledges and liens [FN461] as
well as the other two forms of consensual security
(mortgages and charges). Who might undertake this
task? Surely, it is a job for the Law Commission and
some eminent academic who is an expert on
bailment. Will no one step forward?

FN Graham S. McBain, M.A. (Cantab), LL.B.

(Cantab), LL.M. (Harv), Solicitor. General Editor,
Aircraft Finance: Registration, Security &
Enforcement (looseleaf, 3 vols, Sweet & Maxwell)
and Aircraft Liens (looseleaf, 2 vols, Sweet
&Maxwell). Open Scholar, Peterhouse, Cambridge;
Fulbright Scholar, Harvard Law School.

FN1. Gerard McMeel, "The Redundancy of Bailment"

[2003] L.M.C.L.Q. 169.

FN2. McMeel, "The Redundancy of Bailment" [2003]

L.M.C.L.Q. 169, 169.

FN3. McMeel, "The Redundancy of Bailment" [2003]

L.M.C.L.Q. 169, 200.

FN4. McMeel, "The Redundancy of Bailment" [2003]

L.M.C.L.Q. 169, 199.

FN5. Norman Palmer and Ewan McKendrick,

Interests in Goods, 2nd edn (London: LLP
Professional Publishing, 1998).

FN6. Palmer and McKendrick, Interests in Goods

(1998), p.461.

FN7. This assertion is not new. Percy Winfield,

Province of the Law of Tort (1931), p.100, "...
distinct branch of Law of Property, under the title
Possession". George Whitecross Paton, Bailment in
the Common Law (1952), p.3, "Bailment ... is a
transaction that is sui generis ..." Halsbury's Laws of
England, 4th edn, Vol.3(1), para.1:
"A claim against a bailee can be regarded as a claim
on its own, sui generis, arising out of the possession
had by the bailee of the goods",
following Building and Civil Engineering Holidays
Scheme Management Ltd v Post Office [1966] 1 Q.B.
247 at 261, per Lord Denning. See also Palmer and
McKendrick, Interests in Goods (1998), pp.473-474;
Hamish Dempster, "Clearing the Confusion
Surrounding Bailment" (2004) Common Law World
Review295, 331 and J.H. Baker, An Introduction to
English Legal History, 4th edn (2002), Ch.21,
pp.395-396. See generally, Norman Palmer,
Bailment, 2nd edn (1991), Ch.1.

FN8. Palmer and McKendrick, Interests in Goods

(1998), p.489.

FN9. For example, the carriage of goods by air, land,

sea and road is heavily regulated by international
convention and statute as well as by contract
(particularly in the form of standard terms). Aspects
of hire are governed by the Supply of Goods and
Services Act 1982 and aspects of safety by the
Consumer Protection Act 1987 and the Employers'
Liability (Defective Equipment) Act 1969. See also
Torts (Interference with Goods) Act 1977. For the
extensive use of standard terms in the case of road
carriers, see Graham S. McBain, "Time to Abolish the
Common Carrier" [2005] J.B.L. 545, 565-566.

FN10. Palmer, Bailment (1991).

FN11. See Palmer, Bailment (1991), p.2. Chitty on

Contracts, 29th edn (London: Sweet & Maxwell,
2004), Vol.2, Ch.33, para.33-001, "it is a subject
which is difficult both to classify and to define".

FN12. Thomas Street, Foundations of Legal Liability

(1906), Vol.2, pp.318-319.

FN13. Palmer, Bailment (1991), p.1, "[Bailment] ...

is unknown to non-lawyers, and frequently neglected
by lawyers themselves".

FN14. It has been argued that the concept of the

common carrier is no longer required (it has been
abolished in New Zealand, without problems arising).
Nor the strict liability of the common innkeeper,
together with its lien (the lien has been abolished in
a number of Australian States). See McBain, "Time
to Abolish the Common Carrier" [2005] J.B.L. 545
and Graham S. McBain, "Abolishing the Strict
Liability of Hotelkeepers" [2006] J.B.L. 705. See also
Robert Palmer, English Law in the Age of the Black
Death (1993), Chs 15 (carriers) and 23 (innkeepers).

FN15. Translations of the 22,000 cases in the printed

Yearbooks are online, see Prof. David Seipp's Index
at www.bu.edu/law/faculty/scholarship/yearbooks
[Accessed October 31, 2007]. The Law Book
Exchange has reprinted the Vulgate edition of the
Yearbooks (1678-1680), see
www.lawbookexchange.com.

FN16. These are online, available at www.justis.com.

FN17. Hubert Hall, Court Life under the Plantagenets

(1899), p.221 noted that the 40 shilling limit in
Edward I's day for access to the King's courts could
have bought 13 oxen or 80 sheep. Frederick Pollock
and Frederic William Maitland, History of English Law
before the time of Edward I, 2nd edn (1898), Vol.2,
pp.150-151 mention that typical chattels in medieval
times comprised animals, ploughs, carts and
farmyard equipment. As for more costly movables,
such as books, vestments, crowns, crucifixes, see
p.151: "these were safe in sanctuary or in the king's
treasure house; there was little traffic in them".
When they were bailed, it was usually by way of
pledge, to raise money.

FN18. Carriage of goods existed from time

immemorial. However, given the state of Britain's
roads, it was mainly restricted to local carriage
within towns or between the major cities. The
commercial carriage of goods by stagecoach only
began post-c.1630, by rail post-1825, and by aircraft
post-1919. See McBain, "Time to Abolish the
Common Carrier" [2005] J.B.L. 545.

FN19. Statham (c.1490), Fitzherbert, 3rd edn

(1577), Brooke (1586) and Rolle (1668). These are
being reprinted by the Law Book Exchange, see
www.lawbookexchange.com.

FN20. Hughes (1660), Sheppard (1675), Nelson

(1725), Bacon, 1st edn (1736), Comyn's Digest, 1st
edn (1762), Viner, 2nd edn (1791). See also Lilley's
Practical Register (1765).

FN21. (1703) 2 Ld. Raym. 909.

FN22. Sir Edward Coke, Institutes of the Laws of
England, 1st edn (1628).

FN23. There is brief mention of the bailee's liability in

Coke, Institutes of the Laws of England (1628),
Vol.1, 89 a-b.

FN24. William Blackstone, Commentaries on the

Laws of England, 1st edn (1765- 1769).

FN25. See Blackstone, Commentaries on the Laws of

England (1765-1769), Vol.2, pp.395-396 and 452-
454. In the 13th edn (in 1800), the editor of
Blackstone pointed out that Blackstone had
indiscriminately classed together a number of
bailments which were dissimilar in their nature and
legal consequences. Paton, Bailment in the Common
Law (1952), p.88, "Blackstone's text illustrates how
confused the law was before Jones' treatise
appeared".

FN26. Sir William Jones, Essay on the Law of

Bailments, 1st edn (1781), 4th (last) edn (1833),
p.3, "[Blackstone] has comprised the whole doctrine
in three paragraphs, which ... we may safely
pronounce the least satisfactory part of it [i.e. his
work]". See also William Holdsworth, History of
English Law, 5th edn (1942), Vol.12, p.394.

FN27. The last edition (4th edn) was in 1833. It

comprises the 1st edition, with footnotes. The 1st
edition is being reprinted by the Welsh Legal History
Society (with an introduction by Ibbetson).

FN28. Jones, Essay on the Law of Bailments (1781)

and (1833), p.2.

FN29. Joseph Story, Commentaries on the Law of

Bailments, 8th edn (1870), 9th (last) edn (1878). In
the US, Edwards produced a useful treatise on
bailment in 1855 (last edn 1893). It is of historical
interest only, as are other US publications such as
James Schouler, Treatise on the Law of Bailments
(1880); Edwin C. Goddard, Outlines of the Law of
Bailments and Carriers (1904); Armistead M. Dobie,
Handbook on the Law of Bailments and Carriers
(1914) and Alfred W. Bays, Bailment, Shipment and
Sale of Personal Property (1935). Also, a chapter on
bailment in the first English language (US) text on
tort, Francis Hilliard, Law of Torts (1859), Ch.29.

FN30. Paton, Bailment in the Common Law (1952),

p.89, "too great a reliance on the rules of civil law".
One would agree.

FN31. J. Remy (ed.), Oeuvres Completes de J Domat

(1835); Robert-Joseph Dupin (ed.), Oeuvres de
Pothier (1827). Interestingly, few English legal
writers on bailment considered the Commentaries of
Johann Voet (1647-1713) on the Digest of Justinian
(published from 1698).

FN32. O.W. Holmes, The Common Law (1945),

lectures 5 (the bailee at common law) and 6
(possession).
FN33. Ernest Schuster, "Liabilities of Bailees
according to German Law" (1886) 2 L.Q.R. 188;
Beale, The History of the Carrier's Liability in Select
Essays in Anglo-American Legal History (1906),
Vol.3, p.148; William Fletcher, The Carrier's Liability
(1932); C.H.S. Fifoot, History and Sources of the
Common Law (1949), pp.157-164. See also Street,
Foundations of Legal Liability (1906), Vol.2, Ch.26.

FN34. Pollock and Maitland, History of English Law

before the time of Edward I (1898), Vol.2, pp.170-
172. An article by Ames in 1897 on "The History of
Trover" mentioned bailment, see Select Essays in
Anglo-American Legal History (1906), Vol.3, pp.417-
445.

FN35. See also articles by Percy Bordwell, "Property

in Chattels" (1916) 29 Harv. L.R. 501, 731 and C.V.
Davidge, "Bailment" (1925) 41 L.Q.R. 433. For a
later review, see Samuel Stoljar, "The Early History
of Bailment" (1957) 1 A.J.L.H. 5.

FN36. Beal's work was the first on bailment in

English law after the last edition of Jones in 1833,
fn.27). See also Holdsworth, History of English Law
(1908), Vol.17 (index).

FN37. Paton, Bailment in the Common Law (1952),

p.90 observed that Beal, "suffers from excessive
quotation of dicta and lack of analysis". James
Crossley Vaines, Personal Property, 5th edn (1973),
p.70, said that both Beal and Paine "had little
influence".

FN38. Winfield, Province of the Law of Tort (1931),

Ch.5. He argued that bailment was to be more
fittingly regarded as a branch of property law as
opposed to contract or tort: cf. Cullen, "The
Definition of Bailment" (1926) 11 St Louis L.R. 257,
265 (who argued that bailment was contractual).

FN39. Fletcher, The Carrier's Liability (1932).

FN40. See McBain, "Time to Abolish the Common

Carrier" [2005] J.B.L. 545, 557.

FN41. See also articles by Samuel Stoljar, "The

Conception of Bailment" (1955) 7 Res Judicatae 160
(who argued that bailment was a contract) and
Carnegie, (1966) 3 Adelaide L.R. 7.

FN42. Norman Palmer has also co-authored the text

Interests in Goods with Ewan McKendrick (1998) as
well as supplied the chapter on bailment in Peter
Birks, English Private Law (2000).

FN43. Paton, Bailment in the Common Law (1952),

p.89, noted that Story was no longer adequate as a
statement of the modern law. The same applies to
his own text. See also Crossley Vaines, Personal
Property (1973), p.70 (neither Jones nor Story is of
"real practical value" today). That said, I have
referred to Story on a number of occasions in this
article, since his analysis was so thorough.
FN44. Works by Chitty on Contracts (2004), Vol.2
(Ch.33, written by Ewan McKendrick) and A.P. Bell,
Modern Law of Personal Property in England and
Ireland (1989) also contain material on bailment.
Bell is a text on personal property which follows on
from the few texts written in this field, viz. J.
Williams, Personal Property, 18th edn (1926);
Goodeve's Modern Law of Personal Property, 9th edn
(1949) and Crossley Vaines, Personal Property
(1973). Only Bell contains an extended discussion on
bailment.

FN45. The format adopted follows that of previous

editions of Halsbury and it reflects the former pre-
occupation of legal writers on bailment, with
categorisation. See section 4.

FN46. For example, at present, in the chapter in

Halsbury, material on the duty of care is scattered
and, in some cases, not updated to reflect the
modern position. Similarly, the ability of the bailee to
recover expenses is not dealt with uniformly under a
separate heading.

FN47. Halsbury (all references are to Vol.3(1)),

para.1 "Bailment (which derives its name from the
old French word bailer, to deliver or put in the hands
of)". See generally Anglo-Norman dictionary at
www.anglo-norman.net. Also, Law-French Dictionary
(1701), "bailer, to commit, deliver or pawn".
Kelham's Norman Law Dictionary (1779), "Bailler, to
let forth, to lend, to deliver" and "Bailement", "the
lending". See also Jones, Essay on the Law of
Bailments (1781), (1833), p.90 and Story,
Commentaries on the Law of Bailments (1870) and
(1878), s.2.

FN48. Noted by Pollock and Maitland, History of

English Law before the time of Edward I (1898),
Vol.2, p.169. Lewis and Short's Latin Dictionary
(1879) translates "trado" as "to give up, hand over,
deliver, transmit, surrender, consign". Also, to
"deliver, commit, intrust, confide".

FN49. [1970] 3 All E.R 825 at 831. See also

Halsbury, para.11, fn.2; Palmer, Bailment (1991),
pp.15-18 and Paton, Bailment in the Common Law
(1952), p.118.

FN50. Union Transport Finance v Ballardie [1937] 1

K.B. 510.

FN51. (Selden Soc., 1532), Vol.91, p.260. Noted by

Street, Foundations of Legal Liability (1906), Vol.2,
p.261. See also Holdsworth, History of English Law
(1942), Vol.7, p.453. This description is particularly
wide since it can also cover involuntary and
unconscious bailments. See section 19.

FN52. The first edition was in Latin and was entitled,

Expositiones Terminorum Legum Anglorum. In 1567,
an English version was issued, Exposiciones of the
termes of the lawes of England. In 1624, it was re-
entitled Les Termes de la Ley, the last edition being
in 1721. This last English edition was reprinted in
America in 1812, such edition itself being reprinted
in 1819.

FN53. There was no definition of bailment in the

1567 edition.

FN54. Repeated in Sheppard's Abridgment (1675)

and in Cowell's law dictionary (The Interpreter) in
1727. Rolle's Abridgment (1688) does not contain a
definition of bailment. Nor does Blount's Law
Dictionary (1670) nor Thomas Wood, An Institute of
the Laws of England, 1st edn (1720), 10th edn (last)
(1772).

FN55. However, this "error" has continued to be

propagated, e.g. Henrie Finch, Law or a Discourse
thereof (1759), p.179, "Bailment is a delivery of
goods in possession". Paton, Bailment in the
Common Law (1952), p.30, "However, we define
bailment, the central feature is the delivery of
possession to the bailee". Crossley Vaines, Personal
Property (1973), p.76, "Bailment is essentially a
delivery on terms".

FN56. Bailment can also occur where goods are

carried for delivery to a third party. Or when the
goods are destroyed as in Stellar Chartering and
Brokerage Inc v Efibanca-Ente Finanziario
Interbancario SpA (The Span Terza) (No.2) [1984] 1
W.L.R. 27. See also Bell, Modern Law of Personal
Property in England and Ireland (1989), p.92;
Palmer, Bailment (1991), p.3 and Birks, English
Private Law (2000), Vol.2, para.13.13.
FN57. Judicial recognition that bailment need not be
contractual was made early on. R. v McDonald
(1884-1885) L.R. 15 Q.B.D. 323 at 326, per Lord
Coleridge, "there may be a complete bailment
without the contract".

FN58. As late as 1926, Cullen, "The Definition of

Bailment" (1926) 11 St Louis L.R. 257, 265 asserted
that bailment was founded on contract. See also
Palmer, Bailment (1991), pp.19 and 565-568. It is
surprising that the concept of bailment as a contract
has taken so long a hold. Regardless of
consideration, a contract comprises an offer and an
acceptance. Manifestly, this is not present in the
case of finding. Nor, necessarily, in the case of sub-
bailment or quasi-bailment.

FN59. Blackstone, Commentaries on the Laws of

England (1765-1769), Vol.2, p.451. This definition
was adopted by Burn, New Law Dictionary (1792);
Williams, Law Dictionary (1816); Kent in his
Commentaries in 1826 (with slight adaption);
Whishaw, New Law Dictionary (1829) and by
Edwards in his American treatise on bailment in
1855.

FN60. Blackstone, Commentaries on the Laws of

England (1765-1769), p.396.

FN61. Elsewhere, Jones refers to Blackstone.

Therefore, he had him clearly in mind.

FN62. Jones, Essay on the Law of Bailments (1781)

and (1833), p.117. Also, p.1:
"... [A] delivery of goods on a condition, expressed
or implied, that they shall be restored by the bailee
to the bailor, or according to his directions, as soon
as the purpose, for which they were bailed, shall be
answered."
The first definition was adopted, with slight
amendment, by Bacon in his Abridgment, 7th edn
(1832), Vol.1, p.505. The second was repeated in
Joshua Montefiore, A Commercial Dictionary (1803).
Jones' definition was relied on as late as 1926 by
Goodeve, Law of Personal Property (1926), p.57.

FN63. Story's skepticism was noted in the last

edition of Jones, Essay on the Law of Bailments
(1833), p.1.

FN64. Section 2. Story assumed that "faithful

execution" meant "a conscientious diligence or
faithfulnesss adequate to a due execution" and "use',
"an actual right of use by the bailee".

FN65. Oxford English Dictionary, "entrust" or

"intrust", "[t]o confide the care or disposal of (a
thing or person), the execution of (a task) to, with, a
person. Also, to trust, commit the safety of (oneself,
one's property, etc.) to a thing". See also Story,
Commentaries on the Law of Bailments (1870) and
(1878), s.2, fn.4 and the English Monthly Law
Magazine (April 1839), Vol.4, p.213 cited by him.
See also Halsbury, para.1, fn.1 and Dempster,
"Clearing the Confusion Surrounding Bailment"
(2004) Common Law World Review 295, 298.
Bailment and trust are quite different: Chitty on
Contracts (2004), Vol.2, para.33-005, "there are ...
many distinctions between a bailment and a trust".
Birks, English Private Law (2000), Vol.2, para.13.16,
"Bailment and trust are distinct".

FN66. Story, Commentaries on the Law of Bailments

(1870) and (1878), s.2. He also noted that
"bailment" was "a compendious expression to signify
a contract resulting from delivery". This was
repeated in Wharton, Law Lexicon (1848) as well in
the last edition of Story's work in 1878.

FN67. Beal, Law of Bailments (1900), pp.6-7 quotes

Blackstone, Commentaries on the Laws of England
(1765-1769), Jones, Essay on the Law of Bailments
(1781) and (1833), and Story, Commentaries on the
Law of Bailments (1870) and (1878). He also
referred to a definition of bailment provided by
Stephen in his Digest of Criminal Law, 3rd edn
(1883), p.215 which was later cited by Romer L.J. in
Ashby v Tolhurst [1937] 2 All E.R. 837. Beal, Law of
Bailments (1900), p.7, called Stephen's definition a
"mere declaration of the facts which the name
'bailment' involves". One would agree. It is
unsatisfactory today.

FN68. Paine, On Bailments (1901), pp.2-3 cited the

same authorities as Beal, Law of Bailments (1900),
p.7.

FN69. However, Street noted in Foundations of Legal

Liability (1906), Vol.2, p.252, "In all bailments
possession is severed from ownership".

FN70. Holdsworth, History of English Law (1942),

Vol.3, p.336.

FN71. Winfield, Province of the Law of Tort (1931),

pp.101-102.

FN72. Frederick Pollock and Robert Wright,

Possession in the Common Law (1888), p.4. At p.6,
Paton asserted that the two main features of
bailment were: (a) delivery of possession or (in
some cases) transfer of possession, of personal
property; (b) a specific mandate which required the
identical res either to be returned to the bailor or to
be dealt with in a particular way. These "features"
scarcely cover finding.

FN73. See Pollock and Wright, Possession in the

Common Law (1888), p.163. In Sutcliffe v Chief
Constable of West Yorkshire [1996] R.T.R. 86 at 90,
Otton L.J. did not think this definition could be
bettered.

FN74. Reference to "consensus" seems to have been

made to avoid reference to "contract" since the latter
has various pre-requisites (including the need for
consideration) which are not satisfied in the case of
gratuitous bailments. See also Palmer, Bailment
(1991), Ch.1 and Dempster, "Clearing the Confusion
Surrounding Bailment" (2004) Common Law World
Review 295, 299.
FN75. See also Chitty on Contracts (2004), Vol.2,
Ch.33, para.33-003.

FN76. Crossley Vaines, Personal Property (1973),

p.70.

FN77. [1966] 1 Q.B. 716 at 731, per Lord Diplock

L.J., "[t]he legal relationship of bailor and bailee of a
chattel can exist independently of any contract".
Repeated in Halsbury, para.1. This was re-affirmed
by Lord Goff in The Pioneer Container [1994] 2A.C.
324 and by Mance L.J. in East West Corp v DKBS AF
1912 A/S, Utaniko Ltd v P & O Nedlloyd BV [2003]
Q.B. 1509 at 1529. See also Palmer, Bailment
(1991), Ch.1 and Palmer and McKendrick, Interests
in Goods (1998), pp.461-465 who also state, p.463,
"it is now clearly impossible to treat bailments as a
matter of definition as simply a species of contract".
Chitty on Contracts (2004), Vol.2, Ch.33, para.33-
002, "a contract is not essential for bailment".

FN78. This was quoted with approval by Lord

Pearson on appeal in the Privy Council, York Products
Pty [1970] 3 All E.R. 825. See also Captain Gregos
(No.2) [1990] 2 L.L.R. 395 at 405, per Bingham L.J.,
"[i]n the present case the shipowners were bailees
because they voluntarily took into custody goods the
property of another".

FN79. Bell, Modern Law of Personal Property in

England and Ireland (1989), pp.86-87. Also,
"[p]ossession is central to the concept of bailment".
FN80. cf. US writers such as W.K. Laidlaw,
"Principles of Bailment" (1930-1931) 16 Corn L.Q.
286, 293, who referred to possession being
"voluntarily and rightfully" taken.

FN81. One would argue that the word "voluntarily"

covers both the concepts of "knowing" and "willing"
(i.e. with consent). Thus, a bailment occurs when a
person is, and consents to be, in possession of
goods, knowing them to belong to another.

FN82. At p.3. Palmer, Bailment (1991), p.1285,

"[f]or most practical purposes, any person who
comes knowingly into the possession of another's
goods is, prima facie, a bailee", cited in East West
Corp [2003] Q.B. 1509 at 1530, per Mance L.J.
Palmer also noted, p.2, "The essence of bailment is
possession" and that "without possession there can
be no relationship of bailor and bailee".

FN83. Palmer, Bailment (1991), Ch.1. One would

agree.

FN84. Michael Bridge, Personal Property Law, 3rd

edn (2002), p.33. The bailee must also not be the
owner of the goods. The bailor need not be the
owner. See Birks, English Private Law (2000), Vol.2,
para.13.05.

FN85. Dempster, "Clearing the Confusion

Surrounding Bailment" (2004) Common Law World
Review 295, 314.
FN86. See Dempster, "Clearing the Confusion
Surrounding Bailment" (2004) Common Law World
Review 295, 317-318. It also includes involuntary
bailments, as the author notes. Further, for example,
the carriage of goods does not necessarily confer the
"reversionary interest" in the goods back on the
bailor.

FN87. Halsbury, para.1. Also, "the legal relationship

of bailor and bailee ... is created by the voluntary
taking into custody of goods which are the property
of another". This statement is less helpful since the
word "custody" is usually employed in the context of
certain categories of bailment, viz. deposit and hire
of custody. See also East West Corp [2003] Q.B.
1509 at 1529, per Mance L.J., "the essence of
bailment is the bailee's voluntary possession of
another's goods". See also Birks, English Private Law
(2000), Vol.2, para.13.01.

FN88. See Halsbury, para.1. The final sentence is

incorrect. For example, there is no return of goods in
the case of hire of carriage.

FN89. Palmer and McKendrick, Interests in Goods

(1998), p.468. See also Chitty on Contracts (2004),
Vol.2, Ch.33, para.33-006.

FN90. Possession of another's goods is the one pre-

requisite that both the case law and legal writers on
bailment have consistently agreed on throughout the
centuries: Birks, English Private Law (2000), Vol.2,
para.13.06, "Possession is central to bailment".
FN91. East West Corp [2003] Q.B. 1509 at 1529, per
Mance L.J., "What is fundamental is not contract, but
the bailee's consent".

FN92. The Pioneer Container [1994] 2 A.C. 324 at

342, per Lord Goff,
"... [A] sub-bailee can only be said for these
purposes to have voluntarily taken into his
possession the goods of another if he has sufficient
notice that a person other than the bailee is
interested in the goods so that it can properly be
said that (in addition to his duties to the bailee) he
has, by taking the goods into his custody, assumed
towards that other person the responsibility for the
goods which is characteristic of a bailee."
See also Palmer and McKendrick, Interests in Goods
(1998), pp.468-469.

FN93. Belvoir Finance Co Ltd v Stapleton [1971] 1

Q.B. 210 at 217 (finance company obtained title to a
car and hired it out to another company, without
taking possession of it. Held a bailment).

FN94. East West Corp [2003] Q.B. 1509. See also

Halsbury, para.1.

FN95. Palmer, Bailment (1991), p.677. Also, p.436:

"A possessor who has not ... consented, but is
nevertheless actually or constructively aware of the
presence in his possession of goods belonging to
another, will fall to be treated as an involuntary
bailee."
FN96. Palmer, Bailment (1991), pp.43-44.

FN97. Palmer, Bailment (1991), p.436.

FN98. See A.E.S. Tay, "The Essence of Bailment,

Contract, Agreement or Possession" (1966) 5 Sydney
L.R. 239. Also, Laidlaw, "Principles of Bailment"
(1930-1931) 16 Corn L.Q. 286, 306. See also
Palmer, Bailment (1991), pp.40-43.

FN99. See also Halsbury, para.1.

FN100. This is a slight amendment of Halsbury,

para.1. For another definition, see text at fn.81.

FN101. Thomas, Institutes of Justinian (1975),

para.3.14. Also, Halsbury, para.2.

FN102. Mutuum comprises a loan for consumption

(the lending of money, food, etc.) in which these
goods are consumed to be repaid in kind. See
section 19.

FN103. (1703) 2 Ld. Raym. 909.

FN104. Holt C.J. adopted the concepts of deposit,

loan for use and pledge from Roman law, following
Bracton (although he substituted the word vadium
for pignus, in the case of pledge). For Bracton's On
the Law and Customs of England (c.1240, trans.
Thorne, 1968-77), see Vol.2, pp.183 (hire) and 284
(others). Bracton is now online,
http//:hlsl.law.harvard.edu/bracton [Accessed
October 31, 2007].

FN105. The five mentioned in the text, plus Holt

C.J.'s division of no.5 (hiring) into two locatio rei
(goods let for hire) and locatio operis faciendi (goods
delivered to be carried or to have something done to
them, for reward).

FN106. Jones, Essay on the Law of Bailments

(1781), pointed out, p.35, that:
"... [H]is [Holt C.J.'s] fifth sort [i.e. locatio operis
faciendi] is no more than a branch of his third [i.e.
locatio rei], and he might, with equal reason, have
added a seventh, since the fifth is capable of another
sub-division (i.e. locatio operis mercium
vehendarum)."

FN107. Halsbury, para.2. Also, para.6, "a bailment of

a chattel, to be kept for the bailor gratuitously, and
returned on demand".

FN108. See Halsbury, para.2. Also, para.20, "a

bailment of a specific chattel in regard to which the
bailee engages to do some act without reward".

FN109. See Halsbury, para.2. Also, para.29, "where

a chattel is lent by its owner to the bailee for the
express purpose of conferring a benefit upon the
bailee, without any corresponding advantage to its
owner".

FN110. See Halsbury, para.2. Also, para.81,

"whereby a chattel is delivered to a bailee to be held
by him as security for a debt or other engagement".

FN111. See Halsbury, para.2. Also, para.50,

"contract by which the hirer obtains the right to use
the chattel hired in return for the payment to the
owner of the price of the hiring".

FN112. Although, as Halsbury notes, para.2, Story

used Jones' categories in his work. So did Kent in his
Commentaries.

FN113. Section 3. (a) covered 1 and 2; (b) covered

3, and (c) covered 4 and 5.

FN114. Beal, Law of Bailments (1900), p.49. Nos 1-3

were gratuitous. See also Palmer, Bailment (1991),
pp.125-126 and Chitty on Contracts (2004), Vol.2,
Ch.33, para.33-008.

FN115. Palmer, Bailment (1991), Ch.8, in particular,

p.525.

FN116. Common innkeepers and common carriers

still have strict liability. It is asserted this is no
longer necessary, see the articles referred to above,
fn.14. When a bailee deviates it becomes subject to
strict liability, see section 8.

FN117. Palmer, Bailment (1991), p.3. See also Ch.2.

FN118. See Palmer, Bailment (1991), p.124, "a large

number of bailments, of a more or less orthodox
character, are excluded from the classification [of
Holt C.J.]". See also Halsbury, para.2.

FN119. This article does not deal with hire-puchase,

for which see Halsbury, para.52 and Vol.9(1), paras
23 et seq.

FN120. For the Roman concept of deposit, see the

Digest 16.3 and Thomas, Institutes of Justinian
(1975), para.3.14.3. See also Buckland, A Textbook
of Roman Law, 3rd edn (1975 reprint), p.467 and
Reinhard Zimmermann, The Law of Obligations
(1996), Ch.7. For Glanvill, Treatise on the Laws and
Customs of England, c.1189, Hall (ed.) (1965), see
p.123. For Bracton, On the Law and Customs of
England (c.1240, trans. Thorne, 1968-1977), see
Vol.2, p.284. See also Paton, Bailment in the
Common Law(1952), p.49.

FN121. (1703) 2 Ld. Raym. 909 at 912-913.

FN122. Blackstone, Commentaries on the Laws of

England (1765-1769), Vol.2, p.453, "If a friend
delivers any thing to his friend to keep for him, the
receiver is bound to restore it on demand".

FN123. Jones, Essay on the Law of Bailments (1781)

and (1833), p.35, "a naked bailment, without
reward, of goods, to be kept for the bailor". Also,
p.117, "a bailment of goods, to be kept for the bailor
without a recompense". Story, Commentaries on the
Law of Bailments (1870) and (1878), s.41, criticised
this definition since:
"... [I]n some cases, the deposit may be for the
benefit of a third person, and to be delivered to him
when demanded, and not to be returned to the
bailor."

FN124. Section 41, "a bailment of goods to be kept

by the bailee without reward, and delivered
according to the object or purpose of the original
trust". See also s.4.

FN125. Paton, Bailment in the Common Law(1952),

p.99:
"Deposit ... is the transfer of possession from bailor
to bailee, the specific mandate being that the bailee
is to be responsible for the custody of the res and to
return it on demand."
See also Chitty on Contracts (2004), Vol.2, Ch.33,
para.33-032.

FN126. Halsbury, para.2, see text at fn.107.

FN127. For the Roman concept of mandate, see

Digest 17.1 and Thomas, Institutes of Justinian
(1975), para.3.27.1. See also Buckland, A Textbook
of Roman Law (1975), p.514 and Zimmermann, The
Law of Obligations (1996), Ch.13. For Bracton, On
the Law and Customs of England (c.1240, trans.
Thorne, 1968-1977), see Vol.2, p.284.

FN128. (1703) 2 Ld. Raym. 909 at 913.

FN129. Jones, Essay on the Law of Bailments (1781)

and (1833), p.36: "Mandatum, or commission, when
the mandatory undertakes, without recompense, to
do some act about the things bailed, or simply to
carry them." Also, p.117, "a bailment of goods,
without reward, to be carried from place to place, or
to have some act performed about them".

FN130. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.137, "a bailment of
personal property, in regard to which the bailee
engages to do some act without reward". Also, s.5.

FN131. Kent, Commentaries (1826), Vol.2, p.443,

"when one undertakes, without recompense, to do
some act for another in respect to the thing bailed".
Paton, Bailment in the Common Law (1952), p.130,
adopted the definition of Halsbury, para.29. Chitty
on Contracts (2004), Vol.2, Ch.33, para.33-040,
"Mandate is the bailment of a specific chattel in
respect of which the bailee undertakes to perform a
gratuitous act."

FN132. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.137.

FN133. For the Roman concept of loan for use, see

the Digest 13.6.1 and Thomas, Institutes of Justinian
(1975) para.3.14.2. Also, Buckland, A Textbook of
Roman Law (1975), p.470 and Zimmermann, The
Law of Obligations (1996), Ch.7. For Glanvill,
Treatise on the Laws and Customs of England, c.
1189, Hall (ed.) (1965), see p.123, "when I
gratuitously lend you some thing of mine to make
use of in your service." For Bracton, On the Law and
Customs of England (c.1240, trans. Thorne, 1968-
1977), see Vol.2, p.284. See also Paton, Bailment in
the Common Law (1952), pp.49-50.

FN134. (1703) 2 Ld. Raym. 909 at 913. If the hire is

paid, the transaction is one of hire of goods (see hire
below).

FN135. Blackstone, Commentaries on the Laws of

England, (1765-1769), Vol.2, p.454:
"... [T]he possession and a transient property is
transferred for a particular ... use, on condition and
agreement to restore the goods so ... borrowed, as
soon as the ... use [is] performed."

FN136. Jones, Essay on the Law of Bailments (1781)

and (1833), p.35, "when goods are bailed, without
pay, to be used for a certain time by the bailee."
Also, p.117, "a bailment of a thing for a certain time
to be used by the borrower without paying for it."

FN137. Story followed the definition of Jones. See

Story, Commentaries on the Law of Bailments
(1870) and (1878), ss.6 and 219.

FN138. Kent, Commentaries (1826), Vol.2, p.446-7,

"a bailment, or loan of an article for a certain time,
to be used by the borrower without payment for it".
Story, Commentaries on the Law of Bailments
(1870) and (1878), s.220, approved of the neatness
of this definition. Paton, Bailment in the Common
Law (1952), p.147, "loan of chattels for use ... where
no reward is received by the lender". See also Chitty
on Contracts (2004), Vol.2, Ch.33, para.33-041 and
Palmer, Bailment (1991), p.630.

FN139. For the Roman concept of pledge, see Digest

13.7 and Thomas, Institutes of Justinian (1975),
para.3.14.4. Also, Buckland, A Textbook of Roman
Law (1975), p.473 and Zimmermann, The Law of
Obligations (1996), Ch.7. For Bracton, On the Law
and Customs of England (c.1240, trans. Thorne,
1968-1977), see Vol.2, p.284. See also Paton,
Bailment in the Common Law (1952), p.50.

FN140. (1703) 2 Ld. Raym. 909 at 913.

FN141. Jones, Essay on the Law of Bailments (1781)

and (1833), p.35, "when a thing is bailed by a debtor
to his creditor in pledge, or as a security for the
debt." Also, p.117, "a bailment of goods by the
debtor to his creditor, to be kept until the debt is
discharged".

FN142. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.286, "[b]ailment of
personal property, as security for some debt or
engagement". Also, see s.7.

FN143. For other definitions of a pledge, see Graham

S. McBain, "Codifying the Law on Consensual
Security, Pledges and Liens" (2007)(March-May)
Australian Commercial Law Journal.

FN144. For the Roman concept of hire, see the

Digest 19.2 and Thomas, Institutes of Justinian
(1975), para.3. 24. Also, Buckland, A Textbook of
Roman Law (1975), p.498 and Zimmermann, The
Law of Obligations (1996), Chs 11 and 12. See also
Paton, Bailment in the Common Law (1952), pp.52-
54. For Glanvill, Treatise on the Laws and Customs
of England, c.1189, Hall (ed.) (1965), see p.132:
"A thing is sometimes owed on a letting and on a
hiring, as when anyone lets out some thing of his to
another for a certain time at a certain rent."
For Bracton, On the Law and Customs of England
(c.1240, trans. Thorne, 1968- 1977), see Vol.2,
p.183.

FN145. (1703) 2 Ld. Raym. 909 at 913. Story,

Commentaries on the Law of Bailments (1870) and
(1878), s.368, noted that that this definition was
incomplete in that it covered only the hire of a thing
and excluded all cases of the hire of labour or the
carriage of goods.

FN146. Story, Commentaries on the Law of

Bailments (1870) and (1878), s 368, "locatio, or
locatio-conductio, both words being used
promiscuously [in Roman law] to signify the same
thing". See also s.369. The confusion entered English
law at least by the time of Glanvill, Treatise on the
Laws and Customs of England, c.1189, Hall (ed.)
(1965), see p.132. For the position under Roman
law, see Buckland, A Textbook of Roman Law
(1975), p.498 and Zimmermann, The Law of
Obligations (1996), pp.338-340.

FN147. Blackstone, Commentaries on the Laws of

England, (1765-1769), Vol.2, p.454:
"... [T]he possession and a transient property is
transferred for a particular time ... on condition and
agreement to restore the goods so hired ..., as soon
as the time is expired ..."

FN148. Jones did not give a definition of hire as

such, apart from stating, p.36, "[l]ocatum, or hiring,
which is always for a reward".

FN149. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.368, "a contract,
whereby the use of a thing, or the services and
labour of a person, are stipulated to be given for a
certain reward". Also:
"[A] bailment of a personal chattel, where a
compensation is to be given for the use of the thing,
or for labour or services about it; or, in other words,
it is a loan for hire, or a hiring or letting of goods, or
of labour and services, for a reward."
See also s.8.

FN150. Paton, Bailment in the Common Law (1952),

p.286 quoted the 3rd edn of Halsbury, Vol.1, p.757:
"... a contract by which the hirer obtains a right to
use the chattel hired, in return for payment of the
price of hiring to the owner."
See also Chitty on Contracts (2004), Vol.2, Ch.33,
para.33-063.

FN151. See text at fn.105. For the position under

Roman law, see Buckland, A Textbook of Roman Law
(1975), p.498 et seq.
FN152. See text at fn.106. Also, Halsbury, para.6.

FN153. Jones, Essay on the Law of Bailments (1781)

and (1833), pp.35-36. This was by dividing hire of
labour, p.90, "into two branches, namely, faciendi,
and mercium vehendarum". See also Crossley
Vaines, Personal Property (1973), p.85.

FN154. Story, Commentaries on the Law of

Bailments (1870) and (1878), ss.8 and 422. cf.
Jones, Essay on the Law of Bailments (1781) and
(1833), p.96, who thought it, "useless to multiply
sub-divisions".

FN155. Street, Foundations of Legal Liability (1906),

Vol.2, p.289 notes that the reason why hire was
divided out into four was because of the importance
of these separate types of hire. Certainly, over the
centuries, each has developed a separate case law,
and exceptions.

FN156. Jones, Essay on the Law of Bailments (1781)

and (1833), p.35, "locatio rei, by which the hirer
gains the temporary use of the thing". Also, p.117,
"a bailment of a thing to be used by the hirer for a
compensation in money".

FN157. Story, Commentaries on the Law of

Bailments (1870) and (1878). s.8, "[t] he hiring of a
thing for use". Also, s.370, "the bailment or letting of
a thing to be used by the bailee for a compensation
to be paid by him".
FN158. At para.50, "a contract by which the hirer
obtains a right to use the chattel hired, in return for
the payment of the price of hiring to the owner".
Also, para.2, fn.9, "the hiring of a chattel for use".

FN159. Jones, Essay on the Law of Bailments (1781)

and (1833), p.96, "[w]hen a ... man demands and
receives a compensation for the bare custody of
goods in his warehouse or store-room".

FN160. Story, Commentaries on the Law of

Bailments (1870) and (1878). s.8, "[t] he hiring of
care and services to be performed or bestowed on
the thing delivered" (not a very good definition, one
would suggest). Also, s.422, "the receiving of goods
on deposit for a reward for the custody thereof".

FN161. At para.2, fn.9, "(hiring) of services in and

about the keeping of the chattel". See also para.38.

FN162. Palmer, Bailment (1991), p.773, "whenever

goods are delivered by one party to another to be
stored in return for a remuneration".

FN163. Jones, Essay on the Law of Bailments (1781)

and (1833), p.356, "when work and labour, or care
and pains, are to be performed or bestowed on the
thing delivered". Also, p.117:
"... a letting out of work or labour to be done, or
care and attention to be bestowed, by the bailee on
the goods bailed, and that for a pecuniary
recompense."
FN164. Story, Commentaries on the Law of
Bailments (1870) and (1878). s.370:
"... the hire of labor and work to be done, or care
and attention to be bestowed, on the goods bailed by
the bailee for a compensation."

FN165. At para.63:
"Hire of work and labour is a class of bailment based
on a contract in which one of the two contracting
parties undertakes to do something to a chattel, for
example, to ... repair it, in consideration of a reward
to be given to him."
Also, para.2, fn.9, "the hiring of work or labour on or
with regard to a chattel".

FN166. Chitty on Contracts (2004), Vol.2, Ch.33,

para.33-088:
"Where a chattel is bailed to the bailee in order that
he may perform work upon it for reward, it is a
bailment for hire of work and labour."
See also Palmer, Bailment (1991), p.881.

FN167. Jones, Essay on the Law of Bailments (1781)

and (1833), p.36:
"... when goods are bailed for the purpose of being
carried from place to place, either to a public carrier,
or to a private person."
Also, p.117, "of care and pains in carrying the things
delivered from one place to another for a stipulated
or implied reward".

FN168. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.8, "[t] he hiring of
the carriage of goods from one place to another".
Also, s.370, "the hire of the carriage of goods from
one place to another for a compensation".

FN169. At para.2, fn.9, "the hire of the carriage of

chattels".

FN170. Addison on Contracts, 7th edn (1875),

pp.717-718, cited by Beal, Law of Bailments (1900),
p.337:
"Every person who accepts goods and chattels for
conveyance to a particular destination for hire or
reward, paid or agreed to be paid him for the
carriage of them, impliedly lets out his labour and
care in return for the hire or reward agreed to be
paid to him. The contract, therefore, belongs to the
class locatio operis. It was styled by the Roman
jurists locatio operas mercium vehendarum, or the
letting out of the work of carrying merchandise."

FN171. Halsbury, para.52 and Vol.9(1), para.1 et

seq.

FN172. See generally, Palmer, Bailment (1991),

Ch.9.

FN173. See Halsbury, para.6. It notes that, deposit

being gratuitous, "until there is actual delivery and
acceptance ... there is no obligation on the bailee's
part to carry out his promise". See also Story,
Commentaries on the Law of Bailments (1870) and
(1878), s 55. Delivery may be actual or constructive.
FN174. Story, Commentaries on the Law of
Bailments (1870) and (1878), s.56:
"... [T]he principal end of the delivery must be
merely to keep the thing for the other; if it be not,
then it becomes a different species of contract."

FN175. See Story, Commentaries on the Law of

Bailments (1870) and (1878), s.57. See also Paton,
Bailment in the Common Law (1952), p.99; Palmer,
Bailment (1991), Ch.9 and Halsbury, para.6. Older
case law sought to establish deposit on the basis of
contract. This contention is no longer sustainable,
see text at fn.77.

FN176. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.58. To the extent
that a person receives a deposit of his own goods,
any bailment (generally) is discharged.

FN177. Blount v War Office [1953] 1 All E.R. 1071

(acceptance of goods although locked in the
strongroom of a requisitioned building). See also
Chitty on Contracts (2004), Vol.2, Ch.33, para.33-
032.

FN178. Halsbury, para.6. Also, Story, Commentaries

on the Law of Bailments (1870) and (1878), ss.9, 55
and 60. Elsee v Gatward (1793) 5 T.R. 143 at 148-
149, per Ashurst J., "if he undertake, and do not
proceed on the work, no action will lie against him
for the nonfeasance". See also Baker, An
Introduction to English Legal History (2002), Ch.21,
pp.334-335.

FN179. Buchanan v Findlay (1829) 9 B. & C. 738 at

748, per Lord Tenterden C.J.:
"... [T]he bills were sent to the defendant for a
specific purpose; and as soon as the defendant
declined to perform that purpose, the right to retain
the bills ceased, and the party was legally bound to
restore them on demand."
Although this is a case of mandate, it should also
apply to deposit.

FN180. Halsbury, para.6. See also Story,

Commentaries on the Law of Bailments (1870) and
(1878), s.164 et seq. (dealing with mandate) and
Crossley Vaines, Personal Property (1973), pp.83-84.

FN181. See generally, Palmer, Bailment (1991),

Ch.10.

FN182. See Halsbury, para.20. Also, Story,

Commentaries on the Law of Bailments (1870) and
(1878), s.153. Older case law sought to establish a
mandate on the basis of a contract. This contention
is no longer sustainable, see above fn.78.

FN183. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.140:
"... [I]n the case of a deposit, the principal object of
the parties is the custody of the thing, and the
service and labor are merely accessorial; in the case
of a mandate, the labor and services are the
principal objects of the parties, and the thing is
merely accessorial."
See also Halsbury, para.20, Palmer, Bailment
(1991), pp.596-597 and Chitty on Contracts (2004),
Vol.2, Ch.33, para.33-040.

FN184. Halsbury, para.20. Also, Story,

Commentaries on the Law of Bailments (1870) and
(1878), s.140.

FN185. See Paton, Bailment in the Common Law

(1952), p.132; Story, Commentaries on the Law of
Bailments (1870) and (1878), s.164; Beal, Law of
Bailments (1900), pp.107-108 and Palmer, Bailment
(1991), pp.594-596. See also text at fnn.178 and
180. cf. Halsbury, para.22.

FN186. See generally, Palmer, Bailment (1991),

Ch.11.

FN187. The goods can only be used by the bailee for

the intended purpose. If not, it constitutes a
deviation, see section 8. See also Story,
Commentaries on the Law of Bailments (1870) and
(1878), ss.227 and 232. Also, Beal, Law of Bailments
(1900), p.117.

FN188. Halsbury, para.29.

FN189. See generally, Palmer, Bailment (1991),

Ch.22.

FN190. The debt can be past, present or future.

FN191. The goods can be that of a third party. They
must exist and be ascertained. Delivery (actual or
constructive) is essential. A mere agreement to
deliver, even if accompanied by the payment of
money, is insufficient to create a pledge (i.e. an
equitable pledge is not possible).

FN192. McBain, "Codifying the Law on Consensual

Security, Pledges and Liens" (2007) (March-May)
Australian Commercial Law Journal, 26.

FN193. See generally, Palmer, Bailment (1991),

Ch.19.

FN194. See Palmer, Bailment (1991), p.1208:

"At common law four principal qualities distinguish
contracts of hire: the transfer of possession in a
chattel, an authority in the bailee to use it for his
benefit, an advantage or reward accruing to the
bailor in return for this permission, and a promise by
the hirer to redeliver the chattel at a stated or
determinable time."
See also Halsbury, para.50 and Story, Commentaries
on the Law of Bailments (1870) and (1878), s.383 et
seq. If possession of the goods is permanent, the
contract is one of sale, not hire. Paton, Bailment in
the Common Law(1952), pp.286 and 331.

FN195. See generally, Palmer, Bailment (1991),

Ch.13.

FN196. Halsbury, para.38:

"... [I]n deposit there is no reciprocity of advantage,
all the benefit being conferred on the bailor, in the
contract of hire of custody there is a mutual
advantage to both the owner of the chattel and the
person who undertakes to keep it safely for reward."
See also Story, Commentaries on the Law of
Bailments (1870) and (1878), s.442 et seq.

FN197. Pothier in his Contrat de Louage, s.6 divided

the requirements into four: (1) the subject matter
must be a chattel; (2) possession of the chattel must
be capable of transfer from one party to the other
and must be actually transferred; (3) the custody of
the chattel must be the object of the transfer of
possession; and (4) the transfer of the custody must
be temporary and not permanent. One would
suggest that Pothier's formulation is unnecessary for
the purposes of English law. See also Halsbury,
para.38 and Paton, Bailment in the Common Law
(1952), p.171.

FN198. Halsbury, para.38, fn.7 and the cases cited

therein.

FN199. See Halsbury, para.39. Also, Story,

Commentaries on the Law of Bailments (1870) and
(1878), s.442.

FN200. See generally, Palmer, Bailment (1991),

Ch.14.

FN201. See Halsbury, para.63:

"It is essential to constitute a valid contract of this
description that there should be some work to be
performed in connection with a specified chattel, and
that a reward should be agreed to be given in return
for the labour."
Also, paras 64 (payment of agreed price) and 68
(performance of obligation). See also, Story,
Commentaries on the Law of Bailments (1870) and
(1878), s.424 and Jones, Essay on the Law of
Bailments (1833), pp.90-91.

FN202. See generally, Palmer, Bailment (1991), Chs

15-18.

FN203. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.457.

FN204. Palmer, Bailment (1991), para.13.02,

"[b]ailment imposes certain basic obligations on
every bailee". Despite an assiduous review of the
textscited in this article, I have encountered no
duties imposed on a bailee additional to those
referred to in Palmer and McKendrick, Interests in
Goods (1998), Ch.19 (article by Bell). However, I
have formulated them slightly differently, on
occasion. For example, Bell does not mention the
duty to account, although he does consider the
reversed burden of proof.

FN205. In the case of joint bailees, each is

responsible for the acts or defaults of the others
within the scope of their authority. See Halsbury,
para.5.

FN206. Jones, Essay on the Law of Bailments (1781)

and (1833), p.21. See also Story, Commentaries on
the Law of Bailments (1870) and (1878), s.18, three
degrees of fault--slight (levissima culpa); ordinary
(levis culpa) and gross (lata culpa). Although at p.21
Jones treated gross negligence as equivalent to
fraud, this was never the position under English law.
See also Story, Commentaries on the Law of
Bailments (1870) and (1878), ss.19-22 and Paton,
Bailment in the Common Law (1952), p.48. Also,
David Ibbetson, "The Law of Business Rome--
Foundations of the Anglo-American Law of
Negligence" (1999) C.L.P. 74, 80-84.

FN207. Ulpian's work on Sabinus and his tract on the

Edict. See Digest 50.17.23 and 13.6.5.2.

FN208. See Halsbury, para.3 and Paton, Bailment in

the Common Law (1952), p.48.

FN209. Thus, in the case of a loan for use, as Jones

later put it in the case of English law, Jones, Essay
on the Law of Bailments (1781) and (1833), p.23,
"an extraordinary degree of care is demanded; and
the borrower is, therefore, responsible for slight
negligence".

FN210. See Jones, Essay on the Law of Bailments

(1781) and (1833), p.5.

FN211. Strictly liability still applies in the case of the

common innkeeper and the common carrier
(although statute has intervened to restrict the
quantum of liability). See McBain, "Time to Abolish
the Common Carrier" [2005] J.B.L. 545 and
"Abolishing the Strict Liability of Hotelkeepers"
[2006] J.B.L. 705. See also Palmer, English Law in
the Age of the Black Death. Also text at fn.222.

FN212. Jones' treatise is almost wholly occupied with

the issue. So, too, are considerable amounts of
Story, Commentaries on the Law of Bailments
(1870) and (1878), Beal, Law of Bailments (1900),
Paine, On Bailments (1901) and Paton, Bailment in
the Common Law (1952).

FN213. Paton, Bailment in the Common Law (1952),

pp.66-81 summarised the case law pre-Coggs. One
would suggest that the case law in the Yearbooks is
so scant and obscure that the position as to the
liability of various categories of bailee cannot be
stated with any degree of confidence. Certainly,
Holmes' assumption that all bailees originally bore
strict liability has been rejected, Holmes, The
Common Law (1945).

FN214. See also Palmer and McKendrick, Interests in

Goods (1998), Vol.2, pp.170-172 and Street,
Foundations of Legal Liability (1906), Vol.2, p.254.
Glanvill, Treatise on the Laws and Customs of
England, c.1189, Hall (ed.) (1965), p.128 upheld
strictly liability in the case of a loan for use, but his
position is uncertain in the case of other types of
bailee.

FN215. Bracton, On the Law and Customs of England

(c.1240, trans. Thorne, 1968- 1977), Vol.2, pp.183
and 284. cf. Britton (c.1290, trans. Nichols 1865),
Vol.1, p.157 (who excused a borrower in the case of
loan for use for accident by fire, water, robbery or
larceny or accidents other than those due to
negligence).

FN216. See section 2(b) above. Also, Bordwell,

"Property in Chattels" (1916) 29 Harv. L.R. 501, 731
and Davidge, "Bailment" (1925) 41 L.Q.R. 433.

FN217. Coggs v Barnard (1703) 2 Ld. Raym. 909 at

918. Also, Jones, Essay on the Law of Bailments
(1781) and (1833), pp.96 (innkeepers) and 104
(carriers). See also, McBain, "Time to Abolish the
Common Carrier" [2005] J.B.L. 545; McBain,
"Abolishing the Strict Liability of Hotelkeepers"
[2006] J.B.L. 705 and Palmer, English Law in the
Age of the Black Death (1993).

FN218. St German, Doctor and Student (Selden

Soc), Vol.91, Dialogue 2, Ch.38. His view of a less
than strict liability was adopted by Noy in his
Maxims, 1st edn (1641), Ch.43. See also Coke,
Institutes of the Laws of England, (1628), Vol.1, 89
a-b and Holdsworth, History of English Law (1942),
Vol.7, pp.432-434. Also, Street, Foundations of Legal
Liability (1906), Vol.2, pp.261-262.

FN219. Four, if the strict liability of the common

innkeeper and the common carrier is taken into
account. McMeel, "The Redundancy of Bailment"
[2003] L.M.C.L.Q. 169, 172-173. See also Bridge,
Personal Property Law (2002), p.37.
FN220. See Paton, Bailment in the Common Law
(1952), pp.81-85.

FN221. (1703) 2 Ld. Raym. 909 at 920.

FN222. The strict liability of common carriers by sea

was first limited by statute in 1715 (7 Geo. 2 c.15).
In the case of common carriers by land, it was
limited by the Carrier's Act 1830 (still extent). See
also Fletcher, The Carrier's Liability (1932), pp.174-
179. The strict liability of common innkeepers was
limited by the Innkeeper's Act 1863 (see now the
Hotel Proprietor's Act 1956). See McBain, "Time to
Abolish the Common Carrier" [2005] J.B.L. 545;
McBain, "Abolishing the Strict Liability of
Hotelkeepers" [2006] J.B.L. 705 and Palmer, English
Law in the Age of the Black Death (1993).

FN223. Jones, Essay on the Law of Bailments (1781)

and (1833), pp.6-8. Also, pp.22-23, 118 and 120-
121. Paton, Bailment in the Common Law (1952),
p.88 summarised it:
"He regards the depositee or the mandatory to carry
as responsible only for gross neglect; the mandatory
to perform a work is bound to use a degree of
diligence adequate to the performance of it; a
borrower for use is responsible for slight negligence:
the pawnee, the hirer, the carrier are answerable for
ordinary neglect."
See also Ibbetson, "The Law of Business Rome--
Foundations of the Anglo-American Law of
Negligence" (1999) C.L.P. 74, 80-84.
FN224. They are set out in Beal, Law of Bailments
(1900), pp.14-18.

FN225. Story, Commentaries on the Law of

Bailments (1870) and (1878), ss.11-15.

FN226. (1868) L.R. 2 P.C. 317. This was followed in

Bullen v Swan Electric Engraving (1904) 23 T.L.R.
258.

FN227. (1868) L.R. 2 P.C. 317 at 337-338.

FN228. [1951] 2 All E.R. 330 at 333, per Lord

Goddard C.J.:
"The use of the expression gross negligence is
always misleading ... the words ... should never be
used in connection with any matter to which the
common law relates."
See also Wilson v Brett (1843) 11 M. &W. 113, per
Rolfe B., "I can see no difference between negligence
and gross negligence".

FN229. [1962] 1Q.B. 694. See also McMeel, "The

Redundancy of Bailment" [2003] L.M.C.L.Q. 169,
175.

FN230. [1962] 1 Q.B. 694 at 698. See also Halsbury,

para.3. This was followed in AVX v EGM Solders Ltd,
The Times, July 7, 1982 (unconscious bailee). See
also Chitty on Contracts (2004), Vol.2, Ch.33,
para.33-008.
FN231. [1995] 2 A.C. 145 (a case dealing with the
duty of care of a fiduciary).

FN232. [1995] 2 A.C. 145 at 205. Lord Browne-

Wilkinson, p.206, also noted that, more and more,
this duty fell to be determined by an underlying
contract. See also P & O Trans European Ltd v
Wincanton Ltd [2001] All E.R. (D) 174.

FN233. [1996] R.T.R. 86 at 90.

FN234. See also Supply of Goods and Services Act

1982 s.13 (in the case of custody for reward). Also,
Chitty on Contracts (2004), Vol.2, Ch.33, para.33-
048.

FN235. This is effectively what Halsbury asserts. See

para.15, fn.4 (deposit): "In several modern
authorities, the duty is simply stated as one of
reasonable care in all the circumstances". Also,
para.21, fn.2 (mandate), "Earlier expressions of the
mandatary's duty in terms of gross negligence would
now appear discredited." Also, para.30 (loan for
use):
"Under modern law ... the borrower's responsibility is
likely to be regarded as one of reasonable care and
diligence in all the circumstances of the case."
See also paras 39 (hire of custody), 59 (hire of
goods) and 70 (hire of labour).

FN236. Halsbury, para.15, fn.3:

"The views expressed in older cases that the
standard of care was to be adjudged according to
rules peculiar to bailment are not now consistent
with the modern law of negligence and these cases
must now be read in the light of Houghland."
See also Bridge, Personal Property Law (2002), p.37.

FN237. e.g. Halsbury, para.39, suggests that the

"precautions" required by a custodian for hire may
be more exacting than those required of a gratuitous
depositary. In the case of a gratuitous depositary,
Halsbury, para.15 suggests that a lesser duty of care
may be owed to bailee known to the bailor to be
"notoriously dissipated, negligent or imprudent". One
would suggest neither now applies. See also Palmer,
Bailment (1991), p.547.

FN238. As asserted elsewhere, their strict liability

should go, see text at fn.14.

FN239. This article is not concerned with the general

question whether deviation should exist as a
separate doctrine. See, generally, Dockray,
"Deviation: A Doctrine all at Sea" [2000] L.M.C.L.Q.
76 and Baughen, "Does Deviation Still Matter"
[1999] L.M.C.L.Q. 393. See also Coote, "Deviation
and the Ordinary Law", in Rose (ed.), Lex
Mercatoria: Essays on International Commercial Law
in Honour of Francis Reynolds (2000).

FN240. Palmer, Bailment (1991), pp.59-61 and 989-

996. At p.989, "Deviation is a legal metaphor used to
denote any radical departure from the method of
performance agreed upon in the contract". See also
Paton, Bailment in the Common Law(1952), pp.304-
305 and Birks, English Private Law (2000), Vol.2,
para.13.38.

FN241. A point noted by Palmer in Birks, English

Private Law (2000), Vol.2, para.13.02.

FN242. MMC Proceeds Inc v Lehmann Bros

International (Europe) [1998] 4 All E.R. 675 at 686,
per Mummery L.J. See also Halsbury, paras 18
(deposit) and 39 (hire of custody) as well as the
cases mentioned therein. Also, Bell, Modern Law of
Personal Property in England and Ireland (1989),
p.107 and Palmer, Bailment (1991), pp.60 and 990.
See also Tate & Lyle Ltd v Hain Steamship Co Ltd
[1936] 2 All E.R. 597.

FN243. Morrison & Co Ltd v Shaw Savill & Albion Co

Ltd [1916] 2 K.B. 783 (deviating ship in wartime
sunk by unforeseen submarine).

FN244. Palmer, Bailment (1991), p.1329; cf. Palmer

and McKendrick, Interests in Goods (1998), p.485.
In the case of a contract, there will also be a breach
of contract.

FN245. (1830) 6 Bing. 716 at 724. See also

Halsbury, para.19 (deposit); Jones, Essay on the
Law of Bailments (1781) and (1833), pp.70-1 and
Story, Commentaries on the Law of Bailments
(1870) and (1878), s.413(a)-(d).

FN246. [1916] 2 K.B. 783 at 795-796.

FN247. [1936] 2 All E.R. 597. See also Birks, English
Private Law (2000), Vol.2, para.13.52.

FN248. [1936] 2 All E.R. 597 at 601.

FN249. (1881) 7 Q.B.D. 510 at 511. See also

Halsbury, paras 18 and 19 (deposit) and para.39
(hire of custody). cf. International Guano v
MacAndrew [1909] 2 K.B. 360 (longer journey
exacerbated damage arising from inherent vice).

FN250. Bell, Modern Law of Personal Property in

England and Ireland (1989), p.106.

FN251. Coggs (1703) 2 Ld. Raym. 909 at 917, per

Holt C.J. (pledge). See also Jones, Essay on the Law
of Bailments (1781) and (1833), p.120.

FN252. Coggs (1703) 2 Ld. Raym. 909 at 915, per

Holt C.J. (horse used for unauthorised journey). Lee
v Atkinson & Brook (1609) Yelv. 172 (riding to
unauthorised place); Burnard v Haggis (1863) 14
C.B.N.S. 45 (horse jumped despite bailor prohibiting
this). See also Halsbury, paras 18 (deposit), 33 (loan
for use) and 59 (hire of goods). Also, Story,
Commentaries on the Law of Bailments (1870) and
(1878), ss.227 and 233 (loan for use) and s.413
(hire of goods).

FN253. Nelson v Macintosh (1816) 1 Stark. 237 (box

in which bailed goods contained, opened without
authority). Miles v Cattle (1830) 6 Bing. 743 (parcel
delivered by hand). See also Halsbury, para.25 and
Palmer, Bailment (1991), p.623.

FN254. Lilley v Doubleday (1881) 7 Q.B.D. 510

(goods warehoused in place other than as
contractually agreed). See also Halsbury, para.19
(deposit).

FN255. Palmer, Bailment (1991), p.994, fn.29.

FN256. Mitchell v Ealing LBC [1979] Q.B. 1 (bailed

goods stolen after time of redelivery agreed). See
also Halsbury, paras 16 and 19 (deposit), paras 30
(loan for use) and 70 (hire of labour). Also, Story,
Commentaries on the Law of Bailments (1870) and
(1878), s.254 (loan for use). Jones, Essay on the
Law of Bailments (1781) and (1833), p.71, noted
that the rule, "extends of course to every species of
bailment". See also Paton, Bailment in the Common
Law (1952), p.149 (loan for use). Also, Bell, Modern
Law of Personal Property in England and Ireland
(1989), p.108.

FN257. Shaw & Co v Symmons & Sons Ltd [1917] 1

K.B. 799 (goods retained more than a reasonable
time after demand, destroyed by fire). See also
Jones, Essay on the Law of Bailments (1781) and
(1833), pp.70 and 120 and Story, Commentaries on
the Law of Bailments (1870) and (1878), ss.122
(deposit) and 254 (loan for use). Also, Halsbury,
paras 30 (loan for use) and 85 (demand for the
goods).

FN258. Devereux v Barclay (1819) 2 B. & Ald. 702

(misdelivery of goods by a warehouseman).

FN259. East West Corp [2003] Q.B. 1509 (goods

delivered without presentation of a bill of lading).
See also Halsbury, paras 33 (mandate), 39 (hire of
custody) and 71 (hire of labour). See also Martin v N
Negin Ltd (1945) 172 L.T. 275 (coat entrusted to
cleaners to clean. Sent, unauthorised, to third party
to dye).

FN260. Edwards v Newland & Co [1950] 2 K.B. 534

(hire of custody. Goods sub-contracted contrary to
contract). Garnham, Harris and Elton Ltd v Alfred W
Ellis (Transport) Ltd [1967] 2 L.L.R. 22 (carriage of
bailed goods sub-contracted to a third party without
authority). See also Palmer, Bailment (1991), p.994.

FN261. Bringloe v Morrice (1675) 1 Mod. 210 (loan

of horse). cf. Camoys v Scurr (1840) 9 C. & P. 383
(trying out horse).

FN262. Davis v Garrett (1830) 6 Bing. 716 at 724

(deviating barge was lost). See also Palmer,
Bailment (1991), pp.992-993.

FN263. Brandt v Liverpool SN Co [1924] 1 K.B. 575.

Palmer notes, in Bailment (1991), p.993, that it is
unclear whether this also applies in relation to
carriage by land.

FN264. Wilkinson v Verity (1871) L.R. 6 C.P. 206

(goods wrongfully sold by bailee). Halsbury, paras 18
(deposit), 70 (hire of goods) and 85 (claims and
damages). See also Chitty on Contracts (2004),
Vol.2, Ch.33, para.33-034.

FN265. McBain, "Time to Abolish the Common

Carrier" [2005] J.B.L. 545, 593. International
carriage by road or rail is covered by international
convention, p.580.

FN266. Halsbury, para.18 (deposit). Also, Jones,

Essay on the Law of Bailments (1781) and (1833),
p.80; Story, Commentaries on the Law of Bailments
(1870) and (1878), ss.89-90 and Chitty on Contracts
(2004), Vol.2, Ch.33, para.33-034.

FN267. Story, Commentaries on the Law of

Bailments (1870) and (1878), ss.91 and 232. Also,
Digest, 16.3.29 and 47.2.40. See also Paton,
Bailment in the Common Law (1952), p.111 and
Zimmermann, The Law of Obligations (1996), p.196.

FN268. Halsbury, para.33 and Story, Commentaries

on the Law of Bailments (1870) and (1878), ss.225,
232 and 254-257 (loan for use). Also, Palmer,
Bailment (1991), pp.630-631.

FN269. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.413. Story seems to
presume that, in other types of hire, use is
permitted. See Story, Commentaries on the Law of
Bailments (1870) and (1878), s.373a. This is not the
case in relation to hire of custody, labour or carriage.
See also Palmer, Bailment (1991), p.838 (hire of
custody).
FN270. Halsbury, para.33 and Beal, Law of Bailments
(1900), pp.119-121. Story, Commentaries on the
Law of Bailments (1870) and (1878), s.255, "natural
and ordinary use to which the thing is adapted".
(loan for use). Chitty on Contracts (2004), Vol.2,
Ch.33, para.33-077 (hire, only for the purpose for
which it was hired). See also Palmer, Bailment
(1991), p.670 (loan for use).

FN271. See Halsbury, para.25. Also, Story,

Commentaries on the Law of Bailments (1870) and
(1878), s.188. For example, the mandate may be to
perform free work on the bailed goods (say, a car),
in which case the bailee would not be allowed to use
it.

FN272. Halsbury, para.18 and Story, Commentaries

on the Law of Bailments (1870) and (1878), ss.89-
92. See also Paton, Bailment in the Common Law
(1952), p.111 (no right to use) and Palmer, Bailment
(1991), p.582.

FN273. See text above at fn.272. Also, Story,

Commentaries on the Law of Bailments (1870) and
(1878), s.89 and Beal, Law of Bailments (1900),
p.78. See also Chitty on Contracts (2004), Vol.2,
Ch.33, para.33-034 and Palmer, Bailment (1991),
p.565 (deposit).

FN274. McBain, "Codifying the Law on Consensual

Security, Pledges and Liens" (2007) (March-May)
Australian Commercial Law Journal, 27-28. See also
Story, Commentaries on the Law of Bailments
(1870) and (1878), ss.329-331.

FN275. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.90 (deposit).

FN276. Farm animals are not generally bailed

today--not least because of strict vaccination and
other animal health requirements. Horses are also
few and far between in comparison with earlier
times.

FN277. Halsbury, para.19, "[a] bailee is not free to

divest himself of responsibility and substitute that of
another without the bailor's consent".

FN278. See Halsbury, para.19. Blount [1953] 1 All

E.R. 1071. See also Palmer, Bailment (1991), p.582.

FN279. See Halsbury, para.27. Also, Palmer,

Bailment (1991), p.623. See also Ballett v Mingay
[1943] K.B. 281 (bailed goods passed to another
without permission) and Gwilliam v Twist [1895]
2Q.B. 84 (coachman delegated operation of an
omnibus without master's permission).

FN280. See Halsbury, para.33. Also, Story,

Commentaries on the Law of Bailments (1870) and
(1878), s.234; Beal, Law of Bailments (1900),
p.121; Paton, Bailment in the Common Law (1952),
p.149 and Street, Foundations of Legal Liability
(1906), Vol.2, p.282. For cases, see Bringloe (1675)
1 Mod. 210 and Camoys (1840) 9 C. & P. 383.
FN281. See Halsbury, para.39. See also Edwards
[1950] 2 K.B. 534 (contract for the storage of
furniture is personal). See also Chitty on Contracts
(2004), Vol.2, Ch.33, para.33-051.

FN282. See Halsbury, para.71. See also Paton,

Bailment in the Common Law(1952), pp.340-341.

FN283. [1945] 1 All E.R. 247 at 250.

FN284. Halsbury, para.27.

FN285. See Halsbury, para.33. See also Chitty on

Contracts (2004), Vol.2, Ch.33, para.33-042
(ordinary course of business).

FN286. See Halsbury, para.71. Story, Commentaries

on the Law of Bailments (1870) and (1878), s.428:
"... [I]t will be sufficient, if the undertaker does the
work by the means of other persons, or sub-agents,
if the work be such as may ordinarily be done by
others in an equally satisfactory manner."

FN287. See Halsbury, para.71. See also Bell, Modern

Law of Personal Property in England and Ireland
(1989), p.128 (sub-bailment).

FN288. BRS v Crutchley [1968] 1 All E.R. 811

(independent contractors). See also Photo Production
Ltd v Securicor Transport Ltd [1980] A.C. 827 at
848, per Lord Diplock. Also, Halsbury, paras 39 and
42 (hire of custody), paras 61 (hire of goods) and 70
(hire of labour). East West Corp [2003] Q.B. 1509 at
1531, per Mance L.J. at [29]:
"... [I]t is clear that responsibility for performance of
these duties cannot be avoided by their delegation to
servants or agents in the case of a contractual bailee
for reward."

FN289. Morris v CW Martin & Sons Ltd [1966] 1 Q.B.

716 at 728, per Lord Denning, "[the bailee] is
answerable for the manner in which that servant or
agent carries out his duty". See also Bell, Modern
Law of Personal Property in England and Ireland
(1989), p.110 and Clerk and Lindsell, Tort, 19th edn
(2006), para.6-64.

FN290. See also Palmer and McKendrick, Interests in

Goods (1998), p.477; Bell, Modern Law of Personal
Property in England and Ireland (1989), pp.109-112
and Halsbury, paras 42 (hire of custody), 61 (hire of
goods) and 70 (hire of labour). Also, Palmer,
Bailment (1991), pp.554 and 624. Also, Chitty on
Contracts (2004), Vol.2, Ch.33, para.33-049.

FN291. Digest 22.1.32. See also Jones, Essay on the

Law of Bailments (1781) and (1833), p.70 and
Story, Commentaries on the Law of Bailments
(1870) and (1878), s.259.

FN292. Street, Foundations of Legal Liability (1906),

Vol.2, p.252. Also:
"The proper action for the bailor to bring in order to
enforce this duty was the action of debt in the debet
et detinet."
See also Glanvill, Treatise on the Laws and Customs
of England, c.1189, Hall (ed.) (1965), Bk 10, Ch.13
and Bracton, On the Law and Customs of England
(c.1240, trans. Thorne, 1968-1977), Vol.2, p.184 (in
a loan for use, the borrower is bound to restore the
goods).

FN293. Halsbury notes at para.15, that a reasonable

time for compliance must be allowed. See also Story,
Commentaries on the Law of Bailments (1870) and
(1878), s.120 and Bell, Modern Law of Personal
Property in England and Ireland (1989), p.108. See
Palmer, Bailment (1991), pp.592-593, as to whether
there is an obligation on the bailor to collect the
goods within a particular time. Also, whether the
bailor would be bound by any promise made not to
seek the return of the goods before a particular date,
p.583.

FN294. This obligation was formerly categorised as

being founded on contract. Mills v Graham (1804) 1
Bos. & P.(N.R.) 140 at 145, per Mansfield C.J.:
"A bailment of goods to be re-delivered imports an
agreement to re-deliver; all special bailments import
a contract to re-deliver, when the purpose for which
the goods were deposited is answered."
Jones, Essay on the Law of Bailments (1781) and
(1833), pp.50-51, "the obligation to restore a
deposit flows from the nature and definition of this
contract". However, since these bailments are
gratuitous this is no longer sustainable, see also text
at fn.77.
FN295. Halsbury, paras 6, 15 and 16. See also
Story, Commentaries on the Law of Bailments
(1870) and (1878), ss.97 et seq.; Paton, Bailment in
the Common Law (1952), p.100 and Palmer,
Bailment (1991), pp.582 and 592-593.

FN296. Halsbury, para.26. Also, Story,

Commentaries on the Law of Bailments (1870) and
(1878), s.257.

FN297. Halsbury, para.30. Story, Commentaries on

the Law of Bailments (1870) and (1878), s.277, "all
such loans are deemed precarious, and during the
mere will and pleasure of the lender". See also
Paton, Bailment in the Common Law (1952), p.150
and Palmer, Bailment (1991), p.674.

FN298. Halsbury, para.26 (mandate, "upon the

fulfillment of the purpose for which he received it".).
Story, Commentaries on the Law of Bailments
(1870) and (1878), s.257 (loan for use, if the
purpose of the loan is accomplished).

FN299. Beal, Law of Bailments (1900), p.83, "by the

failure of the depositary to carry out the special
purpose of the bailment".

FN300. There is an implied undertaking on the

pledgee to redeliver the pledged property on
payment of the debt and interest. McBain, p.28.

FN301. Halsbury, paras 39 (hire of custody) and 60

(hire of goods). Also, Story, Commentaries on the
Law of Bailments (1870) and (1878), s.414 (hire of
goods) and Palmer, Bailment (1991), pp.777, 824,
1249 and 1275-1277. Beal, Law of Bailments (1900),
p.226, "[t]he thing hired ... must be redelivered
when the hire is determined".

FN302. The bailor has a duty to collect the goods

within a reasonable time, Jerry Juhan Developments
SA v Avon Tyres Ltd, The Times, January 25, 1999.
See also Bell, Modern Law of Personal Property in
England and Ireland (1989), p.108 and Palmer,
Bailment (1991), pp.592-593.

FN303. Coggs (1703) 2 Ld. Raym. 909. Kahler v

Midland Bank Ltd [1950] A.C. 24 (illegality). cf.
Phipps v New Claridge's Hotel Ltd (1905) 22 T.L.R.
49 (bailed dog could not be found. Defendant liable).
See also Halsbury, para.6.

FN304. Palmer, Bailment (1991), p.1277. See also

Bridge, Personal Property Law (2002), p.33.

FN305. [1964] 1W.L.R. 323. Lord Denning cited

Salmond on the Law of Torts, 13th edn (1961),
p.264, "[n]o one is bound, save by contract, to take
a chattel to the owner of it". See also Bell, Modern
Law of Personal Property in England and Ireland
(1989), p.108 and Palmer, Bailment (1991), p.698.
The bailee can impose an obligation on the bailor to
take delivery of the bailed goods under the Torts
(Interference with Goods) Act 1977.

FN306. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.117 noted, in the
case of deposit:
"... ordinarily it may be at the place of deposit,
unless some other place is agreed upon, or is implied
from the nature of the transaction."
Paton, Bailment in the Common Law (1952), p.100,
notes that the place of deposit would be a material
circumstance. Another would be the place where the
goods were stored at the moment of demand. See
also s.261 (loan for use, where Story says that the
common law appears not to have laid down any
special rules on the subject). See also Paton,
Bailment in the Common Law (1952), p.151 (loan for
use) and Palmer, Bailment (1991), p.675 (loan for
use).

FN307. Paton, Bailment in the Common Law (1952),

p.100 (in the case of deposit) and Palmer, Bailment
(1991), p.565 (deposit).

FN308. Halsbury, paras 24 (mandate) and 90.

Massey v Banner (1820) 4 Madd. 413.

FN309. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.191, when
discussing mandate, observed:
"The mandatary is bound to render to the mandator,
upon request, a full account of his proceedings; to
show that the trust has been duly performed; or, if ill
performed, to offer a justification or legal excuse for
such ill performance."
See also Beal, Law of Bailments (1900), p.115 and
Halsbury, para.24.
FN310. Halsbury, para.24 (in the context of
mandate):
"When the return of the bailed chattel constitutes
part of the bailee's obligation, he must restore not
only the chattel itself, but also all increments,
profits, and earnings immediately derived from it."
See also Story, Commentaries on the Law of
Bailments (1870) and (1878), ss.99 (interest on a
deposit) and 343 (pledge). Also, Palmer, Bailment
(1991), pp.582 (deposit), 626 (mandate) and 675
(loan for use).

FN311. See Halsbury, para.24. See also Story,

Commentaries on the Law of Bailments (1870) and
(1878), ss.99 (deposit), 194 (mandate), 260 (loan
for use) and 339 (pledge). Paton, Bailment in the
Common Law (1952), noted, p.100, that, "it is
difficult to discover a common law authority".

FN312. See Halsbury, para.24. See also Kimber v

Barber (1872) 8 Ch.App. 56 (difference in share
price).

FN313. See Halsbury, para.24. Also, Story,

Commentaries on the Law of Bailments (1870) and
(1878), s.194. Strand Electric and Engineering Co
Ltd v Brisford Entertainments Ltd [1952] 2 Q.B. 246
(hire charge) and P & O Trans European Ltd [2001]
All E.R. (D) 174. cf. Birks, English Private Law
(2000), Vol.2, para.13.63. See also Palmer, Bailment
(1991), p.675 (hire).
FN314. See Halsbury, para.44 (insurance proceeds in
the case of custody for hire).

FN315. See Halsbury, para.90. See also Eastern

Construction Co Ltd v Nacional Trust Co Ltd and
Schmidt [1914] A.C. 197 at 210; The Joannis Vatis
[1922] P. 92 and Chartered Trust v King [2001] All
E.R. (D) 310 (Feb) Ch. See also Palmer, Bailment
(1991), pp.335-340.

FN316. The bailor only has to establish that the

goods were in the bailee's possession as such and
that loss or damage occurred. Merel & Co Ltd v
Chessher [1961] 1 L.L.R. 534 at 536, per Salmon J.
See also Palmer, Bailment (1991), pp.49-50.

FN317. [1927] 2 K.B. 432 at 436. Port Swettenham

Authority v TW Wu & Co (M) Sdn Bhd [1979] A.C.
580 at 590:
"... [T]he onus is always upon the bailee ... to prove
that the loss of any goods bailed to him was not
caused by any fault of his or of any of his servants or
agents to whom he entrusted the goods for
safekeeping."
(a case concerning hire of custody). The Torenia
[1983] 2 L.L.R. 210 at 216, per Hobhouse J.:
"... [I]t does not suffice for the bailee to prove that
the goods have been lost or destroyed while in his
possession; he must go further and prove that he is
protected from liability by some common law or
contractual defence."
(a case concerning hire of carriage). See also
Halsbury, paras 6 (deposit), 43 (hire of custody) and
60 (hire of goods). Also, Bell, Modern Law of
Personal Property in England and Ireland (1989),
p.112 and Halsbury, para.15. See also Chitty on
Contracts (2004), Vol.2, Ch.33, para.33-012.

FN318. Hobbs v Petersham Transport Co Pty Ltd

(1971) 124 C.L.R. 220 at 241, per Windeyer J., "a
peculiar incident of the law of bailment". See also
Halsbury, paras 15 (deposit), 25 (mandate--misuse
of goods), 40 and 43 (hire of custody). Also, Story,
Commentaries on the Law of Bailments (1870) and
(1878), ss.78 (loan for use) and 454 (hire of
custody).

FN319. Palmer and McKendrick, Interests in Goods

(1998), pp.480-482. cf. McMeel, "The Redundancy of
Bailment" [2003] L.M.C.L.Q. 169, 183, "best
explanation of it may be historical".

FN320. Their burden was imposed to prevent

collusion, see text at fn.217. Palmer and McKendrick,
Interests in Goods (1998), p.478 (article by Bell,
Modern Law of Personal Property in England and
Ireland (1989)) considered that the origin of the
burden of proof on the bailee was bound up with the
evolution of the claim in detinue, citing Milsom,
Historical Foundations of the Common Law, 2nd edn
(1981), pp.266-269.

FN321. BRS [1968] 1 All E.R. 811 at 822, per Sachs

L.J. who indicated that the rule was designed to
counter the, "number of temptations to which a
bailee may succumb". See also Palmer and
McKendrick, Interests in Goods (1998), pp.478-479
and Palmer, Bailment (1991), pp.49-50.

FN322. [1925] 21 L.L.R. 310 at 315-316, per Atkin

L.J. See also Bell, Modern Law of Personal Property
in England and Ireland (1989), p.112.

FN323. Bullen (1907) 23 T.L.R. 258. Phipps (1905)

22 T.L.R. 49 (bailed goods, a dog, disappeared). See
also Halsbury, paras 6 (deposit) and 43 (hire of
custody). Also, Palmer, Bailment (1991), p.49.

FN324. Travers & Sons Ltd v Cooper [1915] 1 K.B.

73 at 87-88, per Buckley L.J. See also Davenport,
"Sub-Bailment on Terms and the Efficacy of
Contractual Defences against a Non-Contractual
Bailor" [1996] J.B.L. 329, 340-341. See also
Halsbury, para.40 (hire of custody, contractual
exemptions).

FN325. Halsbury, para.15. Coggs (1703) 2 Ld.

Raym. 909 at 913; Nelson (1816) 1 Stark. 237 at
238 and Giblin v McMullen (1868) L.R. 2 P.C. 317.
See also Halsbury, paras 25 (mandate), 30 (loan for
use), 39 (hire of custody), 59 (hire of goods), 70
(hire of labour) and 85 (demand for return of
goods). Also, Story, Commentaries on the Law of
Bailments (1870) and (1878), ss.25 (accident) and
268 (loan for use).

FN326. See Halsbury, para.24 (mandate).

FN327. See Halsbury, para.59 (hire of goods).

Blakemore v Bristol and Exeter Rly Co (1858) 8 E. &
B. 1035 at 1051, per Coleridge J. (loan for use,
"reasonable wear and tear."). Pomfret v Ricroft
(1669) 1 Wms. Saund. 321 at 323. Also, Moorhouse
v Angus & Robertson (No.2) Pty Ltd [1981] 1
N.S.W.L.R. 700 at 708, per Samuels J.A. See also
Story, Commentaries on the Law of Bailments
(1870) and (1878), s.268 (loan for use) and Chitty
on Contracts (2004), Vol.2, Ch.33, para.33-041
(loan for use).

FN328. Palmer and McKendrick, Interests in Goods

(1998), p.485:
"The law of bailment has concentrated principally on
the liability of bailees. As far as the bailor is
concerned, the law is less developed and in some
respects rather less clear."
One would agree.

FN329. Cheesman v Exall (1851) 6 Exch. 341 at 344,

per Parke B., "the pledgor impliedly undertakes that
the property pledged is his own property, and may
be safely returned to him". See also Singer
Manufacturing Co v Clark (1879) 5 Ex. D. 37 at 42
per curiam. See generally, McBain, "Codifying the
Law on Consensual Security, Pledges and Liens"
(2007) (March-May) Australian Commercial Law
Journal, 30.

FN330. Cole v North Western Bank (1875) L.R. 10

C.P. 354 at 363, per Blackburn J., "pledger had
authority from the owner to ... pledge". Fry v Smellie
[1912] 3 K.B. 282 (apparent authority). See also
Palmer, Bailment (1991), p.1414; Palmer and
McKendrick, Interests in Goods (1998), p.639 and
Chitty on Contracts (2004), Vol.2, Ch.33, para.33-
127.

FN331. Supply of Goods and Services Act 1982

s.6(1), provides that:
"[A] 'contract for the hire of goods' means a contract
under which one person bails or agrees to bail goods
to another by way of hire, other than an excepted
contract."
It excepts hire-purchase agreements. See Halsbury,
para.50.

FN332. Supply of Goods and Services Act 1982

s.7(1). See also Halsbury, para.53; Palmer, Bailment
(1991), pp.1216-1219 and Palmer and McKendrick,
Interests in Goods (1998), p.487. For the position at
common law, see Palmer, Bailment (1991), pp.1211
and 1215 and Chitty on Contracts (2004), Vol.2,
Ch.33, para.33-066. See also s.2 (right to transfer)
and Halsbury, para.73.

FN333. Rogers v Lambert [1891] 1 Q.B. 318: Ross v

Edwards Co (1895) 73 L.T. 100 at 101, per Lord
McNaughten; Webb and Webb v Ireland and the
Attorney-General (1988) I.R. 353 at 376, per Finlay
C.J. See Palmer, Bailment (1991), p.265 et seq.
Also, Bell, Modern Law of Personal Property in
England and Ireland (1989), p.119; Palmer and
McKendrick, Interests in Goods (1998), p.487 and
Birks, English Private Law (2000), Vol.2, para.13-02.
FN334. See text above at fn.333.

FN335. Cheesman (1851) 6 Exch. 341 at 344, per

Parke B.:
"In the ordinary case of a pledge, the pledgee
impliedly undertakes to deliver back the property to
the pledgor, when the sum for which it is pledged is
paid."
See also Gledstane v Hewitt (1831) 1 Cr. & J. 565;
Owen v Knight (1837) 4 Bing. N.C. 54; Martin v Reid
(1862) 11 C.B.N.S. 730; Broadbent v Varley (1862)
12 C.B.N. 214; Mecklenburgh v Gloyn (1865) 13
W.R. 291.

FN336. For the meaning of a contract for the hire of

goods, see text at fn.331.

FN337. Supply of Goods and Services Act 1982

s.7(2). See Palmer, Bailment (1991), p.1217. For the
position at common law, see Palmer, Bailment
(1991), pp.1215-1216 and Chitty on Contracts
(2004), Vol.2, Ch.33, para.33-066.

FN338. Halsbury, para.73.

FN339. Palmer, Bailment (1991), pp.664-665. Bell in

McKendrick and Palmer, Bailment (1991), p.487,
called this a "controversial conjecture" and cited to
the contrary Paton, Bailment in the Common Law
(1952), pp.150-151 who said that it was, "difficult to
see what remedy the borrower could have, if the
bailor terminated the agreement before the agreed
date". See also Thornley [1980] C.L.J. 378 and Bell,
Modern Law of Personal Property in England and
Ireland (1989), p.96.

FN340. Halsbury, para.88, "the preferable modern

view appears to be that the bailee has possession
even under bailment at will". Chitty on Contracts
(2004), Vol.2, Ch.33, para.33-022, "the bailor
retains the immediate right to possession of the
chattel".

FN341. See section 11.

FN342. For the meaning of a contract for the hire of

goods, see text at fn.331.

FN343. Supply of Goods and Services Act 1982

s.9(4) and (5). See also Halsbury, para.55; Palmer,
Bailment (1991), pp.1235-1236 and Chitty on
Contracts (2004), Vol.2, Ch.33, para.33-071. There
are also implied conditions in relation to
correspondence with description (s.8) and sample
(s.10). See Halsbury, paras 54 and 56. See also
Palmer, Bailment (1991), p.1247. At common law
the lessor of goods impliedly contracted that the
goods were both reasonably safe and reasonably
suitable in a functional sense, for the purpose for
which they were hired. Palmer, Bailment (1991),
p.1220. See also Chitty on Contracts (2004), Vol.2,
Ch.33, para.33-068 and Bell, Modern Law of
Personal Property in England and Ireland (1989),
pp.122-123. cf. Birks, English Private Law (2000),
Vol.2, para.13.39.
FN344. See Supply of Goods and Services Act 1982
s.9(2). See Halsbury, para.55 and Palmer, Bailment
(1991), pp.1246-1247. It is unclear whether such an
implied condition existed at common law. See above.
See also Chitty on Contracts (2004), Vol.2, Ch.33,
para.33-070.

FN345. See ss.1 and 4. See also Halsbury, paras 72

and 75. There are also implied conditions in relation
to correspondence with description (s.3) and simple
(s.5). See Halsbury, paras 74 and 76.

FN346. Consumer Protection Act 1987 s.3(1).

FN347. See generally, Merkin, A Guide to the

Consumer Protection Act 1987.

FN348. Palmer, Bailment (1991), p.1580.

FN349. [1947] 1 All E.R. 507 (private carrier). This

originally applied to common carriers, Bamfield v
Goole & Sheffield Transport Co Ltd [1910] 2 K.B. 94,
as noted by Bell, Modern Law of Personal Property in
England and Ireland (1989), p.120. See also Palmer,
Bailment (1991), pp.999-1000 and Palmer and
McKendrick, Interests in Goods (1998), p.486. In the
case of ships there is a common law warranty that
they are seaworthy. Riverstone Meat Co Pty Ltd v
Lancashire Shipping Co Ltd [1961] A.C. 807. See
also Palmer, Bailment (1991), p.988.

FN350. Halsbury, para.32 (loan for use). Blakemore

(1858) 8 E.&B. 1035 at 1051, per Coleridge J. Say v
Cementation Construction Ltd (unreported, October
18, 1995, CA). See also Story, Commentaries on the
Law of Bailments (1870) and (1878), s.275.

FN351. (1899) 1 Q.B. 145 at 149. See also Palmer,

Bailment (1991), p.632 et seq; Chitty on Contracts
(2004), Vol.2, Ch.33, para.33-043 and Birks, English
Private Law (2000), Vol.2, para.13.47.

FN352. See Palmer, Bailment (1991), p.636. Also

Bell, Modern Law of Personal Property in England and
Ireland (1989), p.119 and Palmer and McKendrick,
Interests in Goods (1998), p.486. See also Marsh
(1950) 66 L.Q.R. 39; Paton, Bailment in the
Common Law (1952), p.153 and Palmer, Bailment
(1991), p.631 et seq. See also McCutcheon v McCaw
[1992] N.I. 337. Halsbury, para.32 notes older
authority indicating non-liability but states:
"Under modern law, however, it would appear that
the lender owes a duty of reasonable care to warn
the borrower of any defect in the chattel of which the
lender should reasonably have been aware."

FN353. See Story, Commentaries on the Law of

Bailments (1870) and (1878), ss.389 and 391c
(hire). Beal, Law of Bailments (1900), p.225:
"Other expenses may be payable by the letter or the
hirer, according as it is provided for by the express
terms of the contract, or is implied by the certain
and general custom or usage of the particular trade
or business, or the previous course of dealing
between the parties."
FN354. The Winson [1982] A.C. 939 at 960, per Lord
Diplock (expenses reasonably incurred).

FN355. Palmer and McKendrick, Interests in Goods

(1998), p.487. Also, Bell, Modern Law of Personal
Property in England and Ireland (1989), p.120.

FN356. Coggs (1703) 2 Ld. Raym. 909 at 917.

Paton, Bailment in the Common Law (1952), p.366
(e.g. vet's fees for a pledged horse). See also Story,
Commentaries on the Law of Bailments (1870) and
(1878), s.342 and Halsbury, Vol.36(1), para.126.

FN357. Halsbury does not mention the position.

Story, Commentaries on the Law of Bailments
(1870) and (1878), s.121, does "generally entitled to
be reimbursed all the necessary expenses to which
he has been subjected for the preservation of the
deposit". cf. Palmer, Bailment (1991), p.584 et seq.
See also Zimmermann, The Law of Obligations
(1996), p.206.

FN358. Halsbury, para.28. Story, Commentaries on

the Law of Bailments (1870) and (1878), ss.154 and
197. cf. Palmer, Bailment (1991), pp.628-629 who
thought it might be displaced by the particular
circumstances of the mandate.

FN359. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.197 (in the context
of mandate), "it can never be presumed that a
gratuitous trust is designed to be a burden on the
mandatary". Also, s.154. See also Paton, Bailment in
the Common Law(1952), p.138 and Chitty on
Contracts (2004), Vol.2, Ch.33, paras 33-033
(deposit) and 33-040 (mandate).

FN360. Halsbury, para.31. See also Story,

Commentaries on the Law of Bailments (1870) and
(1878), s.256.

FN361. Handford v Palmer (1820) 2 Brod. & B. 359.

Also, Chitty on Contracts (2004), Vol.2, Ch.33,
para.33-041. See also Zimmermann, The Law of
Obligations (1996), p.201.

FN362. See Halsbury, para.29.

FN363. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.150 (mandate). See
also Paton, Bailment in the Common Law (1952),
pp.101 and 150 (no lien). See also Halsbury, para.31
(loan for use) and Birks, English Private Law (2000),
Vol.2, para.13.42.

FN364. Halsbury, para.31. See also Story,

Commentaries on the Law of Bailments (1870) and
(1878), s.389 (hire of goods).

FN365. See Halsbury, para.31:

"Extraordinary expenses incurred by the borrower in
the preservation of the chattel lent, whether arising
from the inherent defect, or viciousness peculiar to
the chattel itself, or from circumstances altogether
beyond his control, such as the tortious acts of third
parties, may be recoverable from the lender if, in
incurring those expenses, the borrower was
performing his duty of care."
Also, para.28 (mandate). See also Story,
Commentaries on the Law of Bailments (1870) and
(1878), ss.256 and 273-4 (no case law, in the case
of loan for use) and Paton, Bailment in the Common
Law (1952), p.154. cf. Chitty on Contracts (2004),
Vol.2, Ch.33, para.33-041.

FN366. Halsbury, para.28 (mandate). The Winson

[1982] A.C. 939.

FN367. Birks, English Private Law (2000), Vol.2,

para.13.40, who also notes that reliance might be
possible on the doctrine of agency of necessity.

FN368. See Halsbury, para.82. Palmer, Bailment

(1991), p.194 notes, in respect of the remedies of
the bailor, that, "most (if not all) of these ... are
borrowed from the general law and are not peculiar
to bailments". See generally, Palmer, Bailment
(1991), Ch.3. Also, Ch.4 (remedies of the bailee). In
the case of third parties, see Ch.27.

FN369. See McMeel, "The Redundancy of Bailment"

[2003] L.M.C.L.Q. 169, 180-181.

FN370. Torts (Interference with Goods) Act 1977

s.8(1). See Halsbury, para.82.

FN371. I do not agree with Bell, Modern Law of

Personal Property in England and Ireland (1989),
p.114, that s.8 of the Act can be side-stepped in the
ways he suggests. See also Birks, English Private
Law (2000), Vol.2, para.13.24; Palmer, Bailment
(1991), pp.209 and 283-286 and McMeel, "The
Redundancy of Bailment" [2003] L.M.C.L.Q. 169,
181. The absence of estoppel would also make the
position of bailees and "involuntary bailees" (see
section 21) similar (one would agree with Palmer,
Bailment (1991), p.281, that jus tertii should not
apply to involuntary bailment). See also Chitty on
Contracts (2004), Vol.2, Ch.33, para.33-016.

FN372. Jones, Essay on the Law of Bailments (1781)

and (1833), p.57 pointed this out in the case of
mandate, "very uncommon to undertake any office
of trouble without compensation". See also McMeel,
"The Redundancy of Bailment" [2003] L.M.C.L.Q.
169, 184.

FN373. Schouler, Treatise on the Law of Personal

Property (1884), s.65. Story, Commentaries on the
Law of Bailments (1870) and (1878), s.218 (also in
the context of mandate) noted the:
"... extreme reluctance, on the part of bailors, to
make their friends the victims of a meritorious,
although, it may be a negligent, kindness."
See s.242 (loan for use). See also Palmer, Bailment
(1991), p.326.

FN374. Roman law distinguished between a

necessary deposit and a voluntary deposit. In the
former, in the case of default, the action was in
duplum; in the latter it was in simplum. Digest
16.3.2-4. No such distinction was made under the
common law. See Story, Commentaries on the Law
of Bailments (1870) and (1878), s.44 and Paton,
Bailment in the Common Law (1952), p.99.

FN375. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.44a and 83. Also,
Halsbury, para.7.

FN376. See Story, Commentaries on the Law of

Bailments (1870) and (1878), s.44. See also Jones,
Essay on the Law of Bailments (1781) and (1833),
p.47 and Halsbury, para.7. Also, Leigh's case (1800)
1 Leach. C.C. 411 and Palmer, Bailment (1991),
p.1422, fn.24.

FN377. cf. Bell, Modern Law of Personal Property in

England and Ireland (1989), p.91. One would
disagree with him that the act of a person taking
goods into his possession in these situations is an
"authority to act ... supplied by operation of law", in
order to fit in with his definition (see text at fn.79).

FN378. Halsbury, para.8. cf. Story, Commentaries on

the Law of Bailments (1870) and (1878), s.59. See
also Laidlaw, "Principles of Bailment" (1930-1931) 16
Corn. L.Q. 286, 298-299 and Bell, Modern Law of
Personal Property in England and Ireland (1989),
pp.88-89. For the position under Roman law, see
Buckland, A Textbook of Roman Law (1975), p.469.

FN379. Laidlaw, "Principles of Bailment" (1930-1931)

16 Corn. L.Q. 286, 296, called this "possession
transferred by natural forces without fault of the
owner".

FN380. Nicholson v Chapman (1793) 2 Hy. Bl. 254

(timber deposited on a riverbank). See also
Halsbury, para.9; Story, Commentaries on the Law
of Bailments (1870) and (1878), s.83a and Laidlaw,
"Principles of Bailment" (1930- 1931) 16 Corn. L.Q.
286, 296-297. cf. Palmer, Bailment (1991), p.677,
who considers this to be an example of involuntary
bailment.

FN381. Nicholson (1793) 2 Hy. Bl. 254 at 257, per

Eyre C.J. See Paton, Bailment in the Common Law
(1952), p.99. Also, Cullen, "The Definition of
Bailment" (1926) 11 St Louis L.R. 257, 263.

FN382. Lethbridge v Phillips (1819) 2 Stark. 478 and

Howard v Harris (1884) Cab. & El. 253. See also
Halsbury, para.10.

FN383. Laidlaw, "Principles of Bailment" (1930-1931)

16 Corn. L.Q. 286, 298- 300. Heugh v L & NW Ry
(1870) L.R. 5 Ex. 51.

FN384. Halsbury, para.34. Also, para.1, it:

"... involves the delivery of fungible goods by an
existing owner accompanied by an obligation on the
part of the deliveree to deliver equivalent but
different goods back to the deliveror."
See also Parastatidis v Kotaridis (1978) V.R. 449 at
456, per Harris J. cf. Coleman v Harvey (1989) 1
N.Z.L.R. 723 at 725, per Cooke P. Also, P & O Trans
European Ltd [2001] All E.R. 174 (where mutuum is
discussed). cf. Mercer v Craven Grain Storage Ltd
[1994] C.L.C. 328; Smith, (1995) 111 L.Q.R. 10 and
Bridge, Personal Property Law, (2002), p.39
(possible to create a bailment in which the bailee is
authorised to substitute other goods for those
bailed).

FN385. Digest 12.1.2 and Thomas, Institutes of

Justinian (1975), para.3.14. See also Zimmermann,
The Law of Obligations (1996), Ch.6.

FN386. Glanvill, Treatise on the Laws and Customs

of England, c.1189, Hall (ed.) (1965), p.117:
"The cause of the debt is loan for consumption when
anyone lends another something which can be
counted, weighed or measured."

FN387. Bracton, On the Law and Customs of England

(c.1240, trans. Thorne, 1968- 1977), Vol.2, p.284.
See also Pollock and Maitland, History of English Law
before the time of Edward I (1898), Vol.2, pp.204-
207.

FN388. Jones, Essay on the Law of Bailments (1781)

and (1833), p.64:
"... the lending of money, wine, corn, and other
things, that may be valued by number, weight, or
measure, and are to be restored only in equal value
or quantity."

FN389. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.47:
"... where the loan is of money, wine, or other
things, that may be valued by number, weight or
measure, and are to be restored only in equal value
or quantity, it is a mutuum."
Also, s.6.

FN390. See Halsbury, para.34. Also, Paton, Bailment

in the Common Law (1952), pp.48-49.

FN391. Barter arises where a different commodity

will be exchanged, pursuant to agreement. In the
case of a loan for use the same goods must be
returned. Mutuum requires the same commodity, but
not the same goods, to be returned. See Halsbury,
para.34. Also, Jones, Essay on the Law of Bailments
(1781) and (1833), (1833 edn) pp.64 and 102.

FN392. There must be a demand to be a breach of

an obligation. Tidd, Re (1893) 3 Ch. 154 at 157, per
North J. Also, Halsbury, para.34.

FN393. Halsbury, para.35. See also Jones, Essay on

the Law of Bailments (1781) and (1833), p.64 and
Story, Commentaries on the Law of Bailments
(1870) and (1878), s.283. Also, St Germain, Doctor
and Student (Selden Soc), Vol.91, Ch.38.

FN394. As for pro-mutuum, see Halsbury, para.36.

This is more a matter of restitution than bailment
(being mistaken delivery) and it should be treated as
such.

FN395. For the position under Roman law, see Paton,

Bailment in the Common Law (1952), p.54.
FN396. Story, Commentaries on the Law of
Bailments (1870) and (1878), s.85:
"... another kind of deposit which may, for
distinction's sake, be called a quasi deposit, which is
governed by the same general rule as common
deposits."
Jones did not deal with finding. Nor Coke. Blackstone
only made one brief mention of it, Commentaries on
the Laws of England (1765-1769), Vol.2, p.9. See
generally, Story, Commentaries on the Law of
Bailments (1870) and (1878), ss.85-87, 121a and
621a; Paton, Bailment in the Common Law (1952),
Ch.6 and Pollock and Wright, Possession in the
Common Law(1888), pp.39-40, 84 and 124. Also,
Palmer, Bailment (1991), Ch.23; Halsbury, paras 11-
14 and Baker, An Introduction to English Legal
History (2002), Ch.21, pp.397-399. Chitty on
Contracts (2004), Vol.2, Ch.33, para.33-037,
"[b]ailment rules cannot be translated wholsale into
the law of finding".

FN397. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.85.

FN398. York Products Pty Ltd [1970] 3 All E.R. 825

and 831, per Lord Pearson:
"... [B]oth in an ordinary bailment and in a 'bailment
by finding' the obligation arises because the taking of
possession in the circumstances involves an
assumption of responsibility for the safe keeping of
the goods."
See also Isaack v Clark (1615) 2 Bulst. 306 at 312,
per Coke C.J.. Also, Halsbury, para.11 and Palmer,
Bailment (1991), p.1465.

FN399. See Halsbury, para.11; Story, Commentaries

on the Law of Bailments (1870) and (1878), s.87;
Paton, Bailment in the Common Law (1952), pp.127-
129; Street, Foundations of Legal Liability (1906),
Vol.2, p.278 and Palmer, Bailment (1991), p.1467.

FN400. [1982] Q.B. 1004 at 1018. See also Palmer,

Bailment (1991), pp.689, 1457 and 1465. He also
thought that the landowner might have an obligation
to search for goods lost on his land and to take them
into custody. cf. Palmer, Bailment (1991), p.453,
fnn.3 and 1421.

FN401. Halsbury, para.85. York Products Pty Ltd

[1970] 3 All E.R. 825 at 830, per Lord Pearson:
"... [T]here are cases showing that the finder of
goods, if he takes them into his possession, owes to
the owner a duty of keeping them safely and
returning them to the owner (if possible)."

FN402. It is asserted that its obligations should

include some aspects of deviation, such as not mis-
using the goods (see section 8). It would seem that
a finder is able to delegate, Palmer, Bailment (1991),
p.1468. See also Halsbury, para.11, fn.1.

FN403. Story, Commentaries on the Law of

Bailments (1870) and (1878), s.121a. The Winson
[1982] A.C. 939. cf. Kowal v Ellis (1977) 76 D.L.R.
(3d) 546 at 547- 548, per O'Sullivan J.A. See also
Halsbury, para.11, fn.9; Paton, Bailment in the
Common Law (1952), pp.122-124 and Palmer,
Bailment (1991), pp.1418, 1474- 1477.

FN404. It may be noted that no lien can be claimed

for expenses, there being no improvement. See also
Castellain v Thompson (1862) 13 C.B. (N.S.) 105;
Binstead v Buck (1776) 2 Wm. Bl. 1117; Nicholson
(1793) 2 H. Black. 254. See also Laidlaw, "Principles
of Bailment" (1930-1931) 16 Corn. L.Q. 286, 293-
294 and Palmer, Bailment (1991), p.1474.

FN405. In the case of the latter, codification should

also stipulate who has the right to possess the found
goods since goods found on private property are
treated differently to those found in a public place.
See Halsbury, para.14.

FN406. See generally, Halsbury, para.41. For

articles, see those referred to by Dempster,
"Clearing the Confusion Surrounding Bailment"
(2004) Common Law World Review 295, 320,
fn.110. Also, Davenport, "Sub-Bailment on Terms
and the Efficacy of Contractual Defences against a
Non-Contractual Bailor" [1996] J.B.L. 329. See also
Birks, paras 13.82 and 13.83.

FN407. The Winson [1982] A.C. 939 (Cargo

offloaded by salvors. They acted as substitutional
bailees). See also Bell, Modern Law of Personal
Property in England and Ireland (1989), pp.126-127
and Birks, English Private Law (2000), Vol.2,
para.13.84.
FN408. The Pioneer Container [1994] A.C. 324; P &
O Trans European Ltd [2001] All E.R. 174. See also
Palmer, Bailment (1991), Ch.20 and (1983) Current
Legal Problems 93. Also, Birks, English Private Law
(2000), Vol.2, para.13.85.

FN409. Palmer, Bailment (1991), p.1282.

FN410. [1082] A.C. 939 at 959.

FN411. cf. Transcontainer Express Ltd v Custodian

Security Ltd [1988] 1 L.L.R. 128 (intermediate
carriers failed to provide evidence of any right to
resume possession of the goods when the sub-
bailment expired).

FN412. Bell, Modern Law of Personal Property in

England and Ireland (1989), p.128. The same
applies in the case of a substitutional bailment. See
Transcontainer [1988] 1 L.L.R. 128, p.127. See also
Palmer, Bailment, 2nd edn (1991), pp.788-91 who
indicates that the original bailee will still remain
liable in contract if it expressly, or impliedly,
warrants that its substitute will discharge its
obligations.

FN413. BRS [1968] 1 All E.R. 811. The same applies

in the case of quasi-bailment. Metaalhandel JA
Magnus BV v Ardfields Transport Ltd and Eastfell Ltd
(t/a Jones Transport) [1988] 1 L.L.R. 197
(intermediate party under quasi-bailment held liable
for defaults of ultimate bailee).
FN414. cf. Paton, Bailment in the Common Law
(1952), p.42, "[t]here seem to be few cases dealing
with sub-bailment". See pp.42-47.

FN415. Edwards [1950] 2 K.B. 534.

FN416. Martin v N Negin Ltd (1945) 172 L.T. 275.

Garnham, Harris and Elton Ltd v Alfred W Ellis
(Transport) Ltd [1967] 2 L.L.R. 22 (carriage of
copper wire).

FN417. Morgan v Maurer (1964) 30 Ir. Jur. Rep. 31.

Also, Bell, Modern Law of Personal Property in
England and Ireland (1989), p.128 and Birks, English
Private Law (2000), Vol.2, para.13.83.

FN418. Morris [1966] 1 Q.B. 716. Also, Halsbury,

para.41. East West Corp [2003] Q.B. 1509 at 1529,
per Mance L.J.:
"[The sub-bailee] owes duties in bailment, not
merely to his immediate bailor, but also to an owner
and head bailor of the goods."

FN419. The Pioneer Container [1994] 2A.C. 324 at

338, per Lord Goff. Palmer and McKendrick, Interests
in Goods (1998), p.465.

FN420. York Products Pty Ltd [1970] 3 All E.R. 825.

Also, Halsbury, para.41.

FN421. Including responsibility for the acts of his

servants. See also East West Corp [2003] Q.B. 1509
at 1531, per Mance L.J., "clear that a sub-bailee is
responsible for the acts of any servants who services
he engages to fulfil his duties as bailee". See also
Palmer, Bailment (1991), p.1283 and Birks, English
Private Law (2000), Vol.2, para.13.83.

FN422. Morris [1966] 1 Q.B. 716 at 729, per Lord

Denning, "if the sub-bailment is for reward, the sub-
bailee owes to the owner all the duties of a bailee for
reward". See also Bell, Modern Law of Personal
Property in England and Ireland (1989), p.128.

FN423. James Buchanan & Co Ltd v Hay's Transport

Services Ltd [1972] 1 L.L.R. 410 (gratuitous sub-
bailees).

FN424. Awad v Pillai [1982] R.T.R. 266. cf. Palmer

and Murdoch, "Defining the Duty of the Sub-Bailee"
[1983] 46 M.L.R. 73.

FN425. Morris [1966] 1 Q.B. 716 at 728-729, per

Lord Denning. See also Halsbury, para.41.

FN426. Also, that sub-bailment, substitutional

bailment and quasi-bailment should all be treated
the same in this respect.

FN427. The Winson [1981] 3 All E.R. 688. This was

the opinion of Lloyd J. at first instance, [1979] 2 All
E.R. 35 at 41.

FN428. Normally, the sub-bailee can only look to the

bailee and not the bailor for payment.
FN429. Tap [1894] 1 Q.B. 833 (railway company's
contractual lien). See also Bell, Modern Law of
Personal Property in England and Ireland (1989),
pp.129- 130.

FN430. In The Pioneer Container [1994] 2 A.C. 324

at 338, the Privy Council declined to consider the
case where bailment was unauthorised.

FN431. McElwee v MacDonald (1969) I.R. 437. See

also Bell, Modern Law of Personal Property in
England and Ireland (1989), p.130.

FN432. Palmer, Bailment (1991), pp.26-30. cf. Bell,

Modern Law of Personal Property in England and
Ireland (1989), p.133 although see his opinion in
Bell, "Sub-Bailment on Terms: A New Landmark"
[1995] L.M.C.L.Q. 177, 181, "difficult to see why the
fact that the sub-bailment has not been consented to
should make any difference".

FN433. Awad [1982] R.T.R. 266 (Plaintiff took car to

garage for respray. The garage owner (without
permission) lent it to a customer who crashed it.
Defendant customer liable to plaintiff). cf. Palmer
and Murdoch, "Defining the Duty of the Sub-Bailee"
[1983] 46 M.L.R. 73.

FN434. Lee Cooper Ltd v CH Jeakins Ltd [1967] 2

Q.B. 1. York Products Pty Ltd [1970] 3 All E.R. 825.

FN435. cf. Bell, Modern Law of Personal Property in

England and Ireland (1989), p.132.

FN436. Awad [1982] R.T.R. 266. cf. Palmer and

Murdoch Palmer and Murdoch, "Defining the Duty of
the Sub-Bailee" [1983] 46 M.L.R. 73.

FN437. Bell, Modern Law of Personal Property in

England and Ireland (1989), p.88. See also Palmer,
Bailment (1991), p.680 (involuntary bailee is subject
to a sui generis set of rules, distinct from that of a
bailee). cf. Palmer and McKendrick, Interests in
Goods (1998), p.468 (application of the general law
of tort). See generally, Palmer, Bailment (1991),
Ch.12 and Birks, English Private Law (2000), Vol.2,
para.13.86.

FN438. Palmer, Bailment (1991), p.678 and Palmer

and McKendrick, Interests in Goods (1998), p.468.
cf. Tay, "The Essence of Bailment, Contract,
Agreement or Possession" (1966) 5 Sydney L.R. 239.
Also, Laidlaw, "Principles of Bailment" (1930-1931)
16 Corn. L.Q. 286, 306. Lethbridge (1819) 2 Stark.
544 and Howard (1884) Cab. & El. 253. See also
Chitty on Contracts (2004), Vol.2, Ch.33, para.33-
036.

FN439. Chesworth v Farrar [1967] 1 Q.B. 407. See

also Palmer and McKendrick, Interests in Goods
(1998), p.470.

FN440. Consumer Protection (Distance Selling)

Regulations 2000 (SI 2000/2334). Also, Halsbury,
para.10. See also Unsolicited Goods and Services Act
1971 as amended. Also, Palmer, Bailment (1991),
pp.771-772 and Chitty on Contracts (2004), Vol.2,
Ch.33, para.33-038.

FN441. Laidlaw, "Principles of Bailment" (1930-1931)

16 Corn. L.Q. 286, 309 (reasonable care under the
circumstances). Palmer, Bailment (1991), p.684,
"what is reasonable in all the circumstances of the
case". See also Chitty on Contracts (2004), Vol.2,
Ch.33, para.33-036.

FN442. Like a bailee, an involuntary bailee should

not have an obligation to return the bailed goods to
the bailor, but only to make them available for
collection. See Palmer, Bailment (1991), pp.698 and
700. Also, Birks, English Private Law (2000), Vol.2,
para.13.86.

FN443. Halsbury, para.10, "must not use it or

otherwise convert it to its own use", which also
states, "[t]his seems to follow on principle".

FN444. See section 16. Also, Palmer, Bailment

(1991), p.702-704.

FN445. Palmer, Bailment (1991), p.697, "an

involuntary bailee should carry the burden of proving
that he exercised the required standard of care".

FN446. See Palmer, Bailment (1991), p.704, "there

is no authority concerning his liability for damage or
injury by the goods". Palmer thought that he would
be liable for negligence alone.
FN447. See Palmer, Bailment (1991), p.432:
"Even the strongest proponent of the non-consensual
view of bailment (he was referring to Tay) has not
denied that there must be, if not an unqualified
assent to the possession of the chattel, at least some
degree of actual or imputable knowledge as to its
existence on the part of the bailee."
Also, p.433:
"The predominant philosophy of bailment as a
voluntary ... undertaking demands not only that
actual possession of the goods ... but also some
reasonable notification of their general quality and
value be brought home to the bailee."

FN448. The Times, July 7, 1982.

FN449. Staughton J. referred to an "undisclosed or

surreptitious bailment". See also Birks, English
Private Law (2000), Vol.2, para.13.91.

FN450. Palmer mentions a fourth possible situation,

Palmer, Bailment (1991), p.435, where a bailee of
goods from a non-owner is unaware of the ulterior
ownership of the true owner, and thus that he may
be visited with the obligations of a sub-bailee.
However, he accepts that this is virtually
indistinguishable in principle from the third scenario
posited by Staughton J.

FN451. The Times, July 7, 1982. See also Palmer

and McKendrick, Interests in Goods (1998), p.469.
See also Birks, English Private Law (2000), Vol.2,
para.13.91.

FN452. The Times, July 7, 1982, "a sufficient

standard of care to ascertain that they are truly his
own goods". Had they discovered they did not own
the goods, they would then have become an
involuntary bailee. See also Bell, Modern Law of
Personal Property in England and Ireland (1989),
p.89. Also, Palmer, Bailment (1991), pp.451-455
(who disagreed with the decision). See also Marcus v
Official Solicitor (unreported, January 30, 1997) and
Awad [1982] R.T.R. 266.

FN453. Palmer, Bailment (1991), p.436:

"... should not ordinarily be regarded as having any
duty to exercise care over those goods, because the
very circumstances of his possession negate any
undertaking to that effect."

FN454. Zimmermann, The Law of Obligations

(1996), p.204. See also McMeel, "The Redundancy of
Bailment" [2003] L.M.C.L.Q. 169, 172.

FN455. Bell, Modern Law of Personal Property in

England and Ireland (1989) noted, p.101:
"... an action that is specifically in bailment and not
in tort or contract is a rare event, for the familiar
categories are sufficient in the vast majority of
cases."
A lot of what related to bailment is now covered by
statute a point often missed, see text at fn.9.

FN456. I believe that I have covered all the main

English texts and some of the early US ones. To the
extent that I have failed to do so, doubtless,
someone will be so kind as to point this out.

FN457. McMeel, "The Redundancy of Bailment"

[2003] L.M.C.L.Q. 169, 177, bailment:
"... is not properly seen as a conceptual category at
all in English law, but merely a body of rules derived
from general conceptual categories in a particular
contextual scene."

FN458. For example, in the case of a loan for use,

the bailee must cover its own expenses, see section
16.

FN459. See McBain, "Time to Abolish the Common

Carrier" [2005] J.B.L. 545.

FN460. See McBain, "Abolishing the Strict Liability of

Hotelkeepers" [2006] J.B.L. 705. It is not suggested
that this make the common innkeeper (hotelkeeper)
wholly the same as, for example, a boarding-house
keeper. It should still have an obligation to provide
board and lodging to any member of the public (i.e.
any traveller) who so requests. Also, it should carry
a minimum level of liability insurance for loss and
damage to the goods of a guest.

FN461. See McBain, "Codifying the Law on

Consensual Security, Pledges and Liens" (2007)
(March-May) Australian Commercial Law Journal.
JBL 2008, 1, 1-63
END OF DOCUMENT

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