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LAWCOMM 442 - Personal Property LN.docx
LAWCOMM_442_-_Personal_Property_LN.docx
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LAWCOMM 442 - Personal Property LN.docx-Don Lye 17...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
LAWCOMM 442 - Personal Property LN....
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
Page 72
Don Lye
171346040
“I am of opinion that they [the defendant] are liable for the loss due to the theft by their
servant.”
Diplock LJ
“It was found by the county court judge that the contract made by Beder with the
defendants was made by him as principal and not as agent for the plaintiff. There was thus
no contractual relationship between the defendants and the plaintiff
.”
“Duties at common law are owed by one person to another only if there exists a
relationship between them which the common law recognises as giving rise to such duty.
One of such recognised relationships is created by the voluntary taking into custody of
goods which are the property of another
. By voluntarily accepting from Beder the custody
of a fur which they knew to be the property of a customer of his
, they brought into
existence between the plaintiff and themselves the relationship of bailor and bailee by
sub-bailment. The legal relationship of bailor and bailee of a chattel can exist
independently of any contract
”.
Commentary
Diplock LJ seems to be saying here that before the sub-bailee can be liable to the head
bailor, the sub-bailee needs to know that the goods belong to a third party rather than to
the head bailee.
o
That the sub-bailee cannot have imputed liability to a third party if they do not know
that they exist.
6.4.1.1.1
James Buchanan & Co
6.5 E
XEMPTION
/L
IMITATION
C
LAUSES
Is it appropriate for the sub-bailee to invoke an exemption or limitation clause in their
contract with the head bailee – against the head bailor – despite the fact that the head
bailor was not part of that contract?
One view – sub-bailee is entitled to invoke the exemption clause against the head bailor.
o
It would be unfair for the sub-bailee to have the benefit of the clause against the
head bailee but not against head bailor?
In which case their liability would depend on which party sues them.
o
Additionally, Sub-bailee may also have entered into contract for sub-bailment with
head bailee having assessed risk – which is reflected reflected in the
limitation/exclusion clause and the sub-bailee would not have entered into that
particular agreement unless they had that measure of contractual protection.
o
Furthermore, if the head bailor can sue the sub-bailee directly and ignore privity of
contract, then the sub-bailee should be entitled to defend itself invoking contractual
principles notwithstanding that they are strangers.
6.5.1.1
Morris v CW Martin Martin & Sons Ltd
[1966] 1 QB 716
See facts from above.
Lord Denning MR
“I take it that if the sub-bailment is for reward, the sub-bailee owes to the owner all the
duties of a bailee for reward: and the owner can sue the sub-bailee direct for loss of or
damage to the goods; and the sub-bailee (unless he is protected by any exempting
72
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