INTRODUCTION-

Bailment, as according to Section 148 of the Indian Contract Act (herein after referred to as ‘ICA’), defines as the transfer of the goods while not giving up its ownership, i.e. only the possession of the goods is transferred and not the title. The person who transfers the possession is called ‘bailor’ and the one getting the possession is called ‘bailee’.[1] It is widely accepted notion that it is a sui generis concept. It is duly stated so because of its autonomous nature.[2] The author in this paper will try to analyze the concept of the bailment and the reason behind its uniqueness.

WHETHER THE BAILMENT ONLY DEPENDS ON THE CONTRACT?-

The landmark case namely Coggs v Bernard[3] was the first case to distinguish between the types of bailment and the liability of the bailee. As according to the traditional approach, bailment can broadly be classified into two categories i.e. ‘Gratuitous bailment’ and ‘Non-Gratuitous bailment’. This was so because it was thought that the bailment is only restricted to the realm of the contract. This term ‘contract’ is explicitly mentioned while defining the concept of bailment in Section 148 of ICA. Does it mean that the bailment only comes into play on the formation of contract? I opine no, because if we look at the non-conventional approach, then we can say that it merely depends upon the ‘possession’. This stance is also confirmed in the case namely Trustees of the Port of Bombay v Premier automobiles[4] in which the court held that the “essence of the bailment is possession”.[5]

Think of an instance that A accidently finds a good which belongs to somebody else. Will A in this case be regarded as a bailee (as he is in the possession of somebody else’s good)? In this instance there was no consent flowing from any party (which is an essential element for the formation of contract), hence there was no contract, but still the answer to this question will be ‘yes’.[6] By this instance we can comprehend that Bailment is not limited to only contract but can come into existence by mere possession.

TYPES OF BAILMENT AND DUTY OF CARE-

1. Gratuitous Bailment-

As the name suggest, it is a type of bailment in which the bailor gives the possession of his respective good to the bailee without any charges.[7] The bailor can prematurely ask back the possession of the good even though the purpose of the bailment has not been accomplished (as referred to Section 159 of ICA[8]).

The duty of care in the gratuitous bailment case is naturally less and the bailee will only be liable to give compensation when there is a gross negligence on his part.[9] The bailor’s duty is to disclose any faults which a good might have while giving the possession. Also, he will have to compensate the bailee if it causes him loss because of the premature termination of the bailment.[10]

2. Non-Gratuitous Bailment-

In this type of bailment the bailor and bailee are both benefited because of the transaction. It includes common commercial transactions, services and repairs.[11] The duty of care is much higher in this type of bailment as both the parties are making a profit out of the transaction. In the case name Lakshmi Narain Baijnath v. Secretary of State[12], the court held that “bailee has to take as much care of the goods as the man of ordinary prudence would take under the normal circumstances”.[13] Talking about the duty of bailor, according to Section 150 of ICA[14], the bailor will be held responsible if the goods which he delivered are plausibly safe. Whether or not he was aware about those defects will not be a defense. In the case Hymen v Nye,[15]  the plaintiff hired a carriage and a pair of horses from the defendant. During the journey, a bolt of the carriage came out and the splinter bar got displaced which resulted some injuries to the plaintiff. The court held that it was the duty of defendant to supply such a carriage which was to be fit for the purpose of the journey. Hence the defendant was held liable for negligence.[16]

3. Involuntary Bailment-

Involuntary bailment, as the term suggest, is a way of bailment which is emerged out of “accident”.[17] Say a person found anything on his land, then at that point of time he is in the possession of that thing without being consented to it. This mere possession can impose certain liabilities on him and hence can turn him into a bailee with some obligations and duty of care.[18] This is what involuntary bailment means as a concept.

This type of bailment was removed from the definition of bailment altogether as it was contradicting the law of bailment (based on the traditional approach).[19] But as the bailment has emerged to be a sui generis concept, hence we can do away with the traditional approach i.e. ‘contractual-consensual’ in the process of bailment.

There are various duties which a bailee has been ascertained while having the possession of the goods. These duties are as follows-

• The duty of care which the involuntary bailee is obligatory of is the ‘reasonable care’ and he will be held liable only on the account of gross negligence.[20]
• The involuntary bailee has some duties and obligations towards the goods and he cannot be absolved from these duties in any situation.[21]
• The bailee has a duty to re-deliver the goods which are in his possession through the involuntary bailment and also he is imposed with certain reasonable standards to find the true owner of the goods.[22]
• The involuntary bailee is not imposed with the duty of personally re-delivering the good but just to take some reasonable measures so as to bring it to the knowledge of the true owner.[23]
• The duty of the involuntary bailee arises only when the possession comes to his knowledge or we can say that the duty arises only on the ‘constructive knowledge’ of the presence of goods.[24]

These are the duties which the involuntary bailee is obliged to on having the knowledge of the possession.

Now, in the case name Sachs v Miklos[25], the court obliged that the involuntary bailee can dispose off the goods when it comes to the necessity. The word necessity here indicates the absolute necessity. Also, a reasonable notice has to be given to the true owner while proceeding towards the sale.[26]

If we look the various cases and instances on the involuntary bailment, then we can come on to a conclusion that all the bailments are not involuntary since its inception. It can be voluntary in the beginning and become involuntary after some time. Take an example of a common carrier, which mainly plays the role of voluntary bailee, can become an involuntary bailee when there is no acceptance from the consignee. This position has been confirmed in the case, Heugh v. L&NW Ry Co.[27] Also, the vice versa of the above is also possible i.e. an involuntary bailment can become voluntary bailment. It can be possible in the cases where at first there was absence of consent but subsequently it come to the knowledge of the true owner making it voluntary.

4. Sub Bailment-

A Sub-bailment is a bailment by a bailee to the third party. The sub-bailee, which is in a contract with the bailee, is also answerable to the bailor i.e. despite being in contract with the bailee he is independent of the contract. In this type of bailment the concept of privity of contract cannot be enforced because of the two reasons-

1. The possession of the goods is with the sub bailee who is not its owner and the duty of care is still present irrespective of who are the contracting parties.[28]
2. Sub Bailee should not derive an advantage of not being a party to the contract between bailor and bailee.

The exception to the above stated principle is when the bailor accepts a contractual term which is present in the contract of the bailee and the sub bailee. Then in that case the bailor will be bound by the terms of the sub-bailment contract.[29]

The duty of care of the sub-bailee is the same that of the bailee i.e. taking care of the goods as much a person of ordinary prudence will take care of it in the normal circumstances.[30]

CONCLUSION-

The author in this paper tried to analyze various types of bailment and the duty of care for the same respectively. Also, the paper tried to analyze whether the concept of bailment is only limited to the contract law. Due to its sui generis nature, the bailment can arise out of contracts, torts or property law despite being limited to any of these. It can be dealt with contract act in only those cases which arise out of contracts. But as discussed in this paper, the concept of bailment is not only limited to the realm of contracts. It will be wrong to state that the bailment will not be enforceable if it does not arise out of a contract.[31] Its contractual nature, which includes the consensual view, can be disregarded (as subjected to the autonomy of this concept).

Hence we can come on to a conclusion that the bailment is nothing but a concept which can come into being in any of the two circumstances i.e. ‘consent’ or ‘possession’. Consent is not the one which defeats the bailment, but the possession is the one whose presence creates it.

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BIBLIOGRAPHY

CASES

1. Coggs V. Bernard, (1703) 2 LdRaym 909.
2. Trustees of the Port of Bombay v The Premier Automobiles Ltd. 1974 SCR (3) 397.
3. Lakshmi Narain Baijnath v. Secretary of State AIR 1924 Cal 92.
4. Hyman& Wife V/S Nye & Sons (1881) 6 QBD 685.
5. Hiort v. Bott, L. R. 9 Ex. 86 (1874).
6. Sachs v. Miklos [1948] 2 KB 23.
7. Heugh and another v. The London and North Western Railway Company, (1870) LR 5 Ex 51.
8. Scruttons Ltd v Midland Silicones Ltd [1961] UKHL 4.
9. The Pioneer Contractor KH Enterprises v. Pioneer Enterprises [1994] 2 AC 324.
10. State of Gujarat v Memon Mohammed 1967 AIR 1885.

ARTICLES

1. E. Palmer. Gratuitous Bailment: Contract or Tort?THE INTERNATIONAL AND COMPARITIVE LAW QUATERLY 24 (1975).
2. William K. Laidlaw, Principles of Bailment, 37 Commercial Law Journal 134 (1932).
3. Williston on Contracts, 55 The Law Quarterly Review 189 (1939).
4. Samuel Stoljar, The Conception of Bailment, 7 Res Judicatae 160 (1955-57).
5. Charles E. Cullen, The Definition of Bailment, 11 St. Louis Law Review 257 (1926).

ONLINE MATERIALS

1. Contract- II: Bailment, available at http://www.legalservicesindia.com/article/964/Contract–II:-Bailment.html#:~:text=dealt%20within%20Chap.-,IX%20from%20S.,the%20Indian%20Contract%20Act%2C%201872.&text=Section%20148%20defines%20’Bailment’%20as,of%20the%20person%20delivering%20them%E2%80%9D . (Last visited on August 26, 2020).
2. Duties of Bailee for Reward, September/November 2008, available at https://search.informit.com.au/documentSummary;dn=512363164681014;res=IELHSS (Last visited August 26, 2020).
3. Bailment, Black’s Law Dictionary (10th ed. 2014).
4. Involuntary Bailment: The Dilemma, October 28, 2017, available at http://racolblegal.com/involuntary-bailment-the-dilemma/ (Last visited on August 26, 2020).

TREATISES

1. Pollock and Mulla, the Indian contract and specific relief acts, volume 2, (14^thedition, 2012).

STATUTES

1. Indian Contract Act, 1872.

ONLINE RESOURCES

• SCC Online
• JSTOR

[1] Indian Contract Act, 1872, §.148.

[2] Samuel Stoljar, The Conception of Bailment, 7 Res Judicatae 160 (1955-57).

[3] Coggs V. Bernard, (1703) 2 LdRaym 909.

[4] Trustees of the Port of Bombay v The Premier Automobiles Ltd. 1974 SCR (3) 397.

[5] Ibid.

[6] Charles E. Cullen, The Definition of Bailment, 11 St. Louis Law Review 257 (1926).

[7] Contract- II: Bailment, available at http://www.legalservicesindia.com/article/964/Contract–II:-Bailment.html#:~:text=dealt%20within%20Chap.-,IX%20from%20S.,the%20Indian%20Contract%20Act%2C%201872.&text=Section%20148%20defines%20’Bailment’%20as,of%20the%20person%20delivering%20them%E2%80%9D  (Last visited on August 26, 2020).

[8] Indian Contract Act, 1872, §.159.

[9] Ibid.

[10] Supra note, 7.

[11] Duties of Bailee for Reward, September/November 2008, available at https://search.informit.com.au/documentSummary;dn=512363164681014;res=IELHSS (Last visited August 26, 2020).

[12] Lakshmi Narain Baijnath v. Secretary of State AIR 1924 Cal 92.

[13] Ibid.

[14] Indian Contract Act, 1872, §.150.

[15] Hyman & Wife V/S Nye & Sons (1881) 6 QBD 685.

[16] Ibid.

[17] Bailment, Black’s Law Dictionary (10th ed. 2014).

[18] Supra note, 6.

[19] Supra note, 6.

[20] Williston on Contracts, 55 The Law Quarterly Review 189 (1939).

[21] Ibid.

[22] Hiort v. Bott, L. R. 9 Ex. 86 (1874).

[23] Palmer, supra note 8, 721-22.

[24] William K. Laidlaw, Principles of Bailment, 37 Commercial Law Journal 134 (1932).

[25] Sachs v. Miklos [1948] 2 KB 23.

[26] Ibid.

[27] Heugh and another v. The London and North Western Railway Company, (1870) LR 5 Ex 51.

[28] Scruttons Ltd v Midland Silicones Ltd [1961] UKHL 4.

[29] The Pioneer Contractor KH Enterprises v. Pioneer Enterprises [1994] 2 AC 324.

[30] Supra note, 12.

[31] State of Gujarat v Memon Mohammed 1967 AIR 1885.

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ABOUT THE AUTHOR

Ayush Agarwal

Ayush is a second-year student at The West Bengal National University of Juridical Sciences (NUJS). He has a keen interest in researching on the contemporary legal topics, contracts law as well as the constitution Law. He can be reached at ayush219072@nujs.edu.