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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 42
Don Lye
171346040
“Here delivery over of possession … was actual; it was for safe custody: it was a bailment
for reward. The intention of both parties to the contract is available from a long course of
conduct to show that those were the elements of their bargain and that it was not a
matter of mere license to occupy space.”
4.2.1.2.1
Adams (Durham) Ltd v Trust Houses Ltd [1960] 1 Lloyd’s Rep 380
42
Page 43
Don Lye
171346040
5B
AILMENT
A bailment arises when bailee is in possession of good that belong to bailor who has better
title.
o
Note the jus terti principle, the bailee cannot challenge superior possessory rights of
the bailor.
Once a party becomes a bailee, may have duties of care with respect of the goods to the
bailor.
o
These duties can be modified or excluded by contract.
E.g. dry cleaning, hire purchase, warehousing, etc.
Central element of bailment – that possession passes from bailor to bailee – necessary for
bailee to assume control of the goods.
o
Highly contextual – often the disputed point.
o
E.g. restaurant holding your coat in a cloakroom – likely that you have relinquished
control.
o
E.g. restaurant puts coat on a rack close to your table and within your sight – likely
that it is still within your control.
Categories of bailment are not closed.
o
E.g.
Cogg v Bernard
(1703) 92 ER 107 (KB) – which recognised gratuitous bailment
for the first time.
o
E.g.
Motor Mart Limited v Webb
[1958] NZ(SC) – court found that bailment arose in
a hire purchase agreement.
5.1 B
AILMENTS
AT
W
ILL
AND
FOR
A
T
ERM
Bailment at will – bailor can immediately recover possession i.e. Immediate constructive
possession.
o
E.g.
Wilson v Lombank
.
Bailment for a term – bailor is restricted in ability to recover goods i.e. qualified
constructive possession.
o
E.g.
Ward v Macauley
– leasing a house for a set period of time.
Manders v Williams (1849) 154 ER 1242
5.2 B
AILEE
’
S
R
IGHTS
AGAINST
T
HIRD
P
ARTIES
5.2.1
Jus Tertii
From before, the bailee cannot refuse to return goods and challenge the bailor's superior
rights because the bailee acquires derivative rights from the bailor and is therefore subject
to bailor's superior interest.
The bailee can also invoke similar rights with respect to third parties.
E.g. if person hires car for 21 days (therefore a bailee) – on the 20th day, parks it on side
street – gets negligently destroyed by a crane.
o
Personal loss to the bailee is one day of not using the vehicle.
o
Can sue for the cost of the car? However, the defendant cannot plead jus tertii –
means that the bailee can sue for the whole cost of the car.
o
However, the bailor would be able to pursue the bailee for the loss.
43
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