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What is bailment?

According to Pollock and Wright in 1888, bailment describes the situation in which one person owns property and another agrees to hold the property physically with the promise to return the property on the instructions of the first. The owner is known as the bailor, and the person who holds the goods is known as the bailee.

For bailment to exist, the bailee must acquire possession, preventing the car park owner in Ashby v Tolhurst [1937] from acquiring claiming to the the bailee of cars parking in his car park. Any transfer of possession to or from the bailee requires the bailee’s consent, according to East West Corp v DKBS 1912 [2003], but not the bailor’s consent, according to The Pioneer Container [1994].

A bailee will be obliged to return goods bailed to him in their original form unless substituted, as in Wincanton Ltd v P&O Trans European Ltd [2001] (warehouse pallets substituted), or the bailor became a tenant in common of a bulk, as in Mercer v Craven Grain Storage Co [1994].

Liability of bailees

There is some debate over whether a claim can be made ‘in bailment’, against a bailee, or whether claims against bailees can only be made in tort or contract law.

It was the old approach of Coggs v Bernard (1703) to categorise bailment into many different types, each with their own rules on liability. The newer approach taken in Highland v RR Low (Luxury Coaches) Ltd [1962] was to require (ordinary) negligence to claim in non-gratuitousĀ bailment, and gross negligence to claim against gratuitous bailees...

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