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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 65
Don Lye
171346040
the defendants can prove that the loss occurred before the arranged time of delivery on
December 19, they are liable as insurers for the loss of the goods
.”
“it seems to me that the failure of the defendants to send their representative to the
agreed place for the delivery of the goods was a negligent failure on their part, and from
that moment they became insurers of the goods.”
Commentary
Care of goods was not negligent – lock-up garage was ordinary – no recorded incident of
goods being stolen before.
o
Judge seems to factor in that since it was a gratuitous bailment, duty of care could
be less – might be wrong here.
Local authority would have been looking for CCTV of the burglary – ideally, the burglary
would happen before the first appointment.
o
Before first appointment – ordinary bailment which the bailee faces the reverse
onus. Would be able to establish that it was not at fault (had taken reasonable
care).
o
After first appointment – past point of deviation and therefore strict liability would
apply.
Taking the example of a friend borrowing a computer and agreeing to return it the next
morning. Friend forgets.
o
To protect yourself – legally speaking – do not consent to the delay i.e. “that’s fine
bring it tomorrow” – may bind you as bailor to an agreed extension.
o
Should demand delivery immediately, acknowledge the delay under protest.
65
Page 66
Don Lye
171346040
6S
UB
-
BAILMENT
When the bailee entrusts goods to a third party – creating a new bailment relationship.
2 main topics.
(1) Relationship between the bailor and bailee [“head bailment”] when the bailee has
sub-bailed the goods.
(2) Relationship between the bailee (sub-bailor) and sub-bailee.
Is there an obligation with respect to any loss/damage to the goods, causing
the sub-bailee to be directly liable to the head bailor?
Generally, the bailor can sue the bailee for any loss.
However, in certain circumstances, may not wish to do so, and may wish to
sue the sub-bailee instead.
E.g. bailee is bankrupt.
E.g. bailee had authority (express or implied ) to sub-bail and had been
conscientious and not negligent in selecting the sub-bailee.
6.1 R
ELATIONSHIP
BETWEEN
HEAD
BAILOR
AND
HEAD
BAILEE
Two points to consider.
(1) Did the bailee have authority to enter into the sub-bailment?
Authority may be implied or express.
If the sub-bailment is unauthorised, then by giving up possession, the bailee
may have deviated from the original contract. Bailee will be strictly liable for
any loss.
(2) Even if the bailee had authority to sub-bail the goods, did the bailee do so
negligently?
Would not be deviation as such – governed by ordinary principles so that the
bailee would need to negative fault that they were prudent in their choice of
sub-bailee (as per the reverse onus).
If no authority or did so negligently, the bailee may be liable to the bailor.
66
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