BAILMENT AND PLEDGE
DEFINITION AND FEATURES
Definition of Bailment
“A bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished be returned or otherwise disposed’, of according to the directions of the persons delivering them”
The person delivering the goods it called the Bailor. The person to whom they are delivered is called the Bailee. The transaction is called Bailment.
(i) P lends his book to Q. –
(ii) P delivers a pen to Q for repair.
(iii) P gives Q his watch as security for a loan.
In all these cases P is the bailor and Q is the bailee.
Characteristic Features or the Requisites of Bailment
Bailment has the following characteristic features :
1. Delivery : It is delivery 6f goods by one person to another.
2. Purpose : The goods are delivered for some purpose.
3. Return : It is agreed, that when the purpose is accomplished the goods are to be returned or otherwise disposed of according to the direction of the bailor.
4. Contract : Bailment arises from express or implied t contract. (n case of finder of goods bailment arises by implication tit’ law.
5. Ownership : In bailment the bailor continues to be the owner of the goods. Therefore bailment does not cause any change of ownership.
6. movable goods : Bailment is concerned with only movable goods. Money is not included in the category in movable goods. A deposit of money is not bailment.
Deposit of money in a bank does not .constitute bailment. 1Iir relationship between depositor and the bank is that of borrower and the lender.
7. Possession : A person already in possession of the goods may become a bailce by a subsequent agreement, express. or implied.
X is a seller of motor can, having several cars in his possession. Y buys a car and leaves the car in the possession of X After the . sale is complete, X becomes a bailee, although originally he was the owner.
Delivery to bailee how made
“The delivery of-goods to the bailee may be made by doing anything which has the effect of putting the goods in the possession of the intended bailee or of any person authorised to hold them on his behalf.-Sec. 149.
Different kinds of Bailment
Bailments may be classified into;
(1) Gratuitous Bailment and
(2) Bailment for Reward.
A gratuitous bailment is one in which neither the bailor, nor the bailee is entitled to any remuneration, e.g., loan of an article gratis ; safe custody without charge, etc.
A bailment for reward is one where either the bailor or the bailee is entitled to a remuneration e.g., a motor car let out for hire ; goods given to a carrier for carriage at a price ; articles given to a person for being repaired for a remuneration ; pawn, etc.
DUTIES OF THE BAILEE
1. Duty of reasonable care
The bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.-Sec. 151.
The degree of care to be taken by a bailee is that of a man of ordinary prudence. If he takes that amount of care, he will not be held responsible for loss, destruction or deterioration of the goods bailed. (Sec. 152). The degree of care required from the bailee is the same whether the bailment is for reward or is . gratuitous.
There may be a special contract between the bailor and the bailee by which the bailee is required to take a higher degree of care or under which he is responsible for compensating in full for loss, destruction or deterioration of the goods. Such special terms are usually incorporated in contracts of carriage.
2. Bailee’s liability for negligence Of servants
A bailee is liable for damages caused by negligence of the servants about the use or custody of the things bailed, when acting in course of their employment. But the bailee is not liable for damages caused by the acts or default of third person which cannot be prevented by ordinary diligence. The bailee is also not liable for unauthorised acts of his servants outside the scope of their employment. Sanderson v. Collins.
3. Unauthorized use of goods
If the bailee makes unauthorized use of goods bailed, i.e., uses them in a way not authorized by the terms of the bailment, he is responsible for all damages to the goods and must pay compensation to the bailor. This liability arises even if the bailee is not guilty of any negligence, and even if the damage is the result of accident.-Sec. 154.
(i) A lends a horse to B for his own riding only. B allows C a member of his family, to ride the horse. C rides with care, but the horse accidentally falls arid is injured. B is liable to make compensation to A for the injury done to the horse.
(ii) A hires a horse in Calcutta from B expressly to march to Benares, .-f rides with due care, but marches to Cuttack instead. The horse accidentally falls and is injured. .9 is liable to make compensation to B or the injury to the horse.
4.Mixture of Bailor’s goods with the Bailee’s
If the bailee mixes up his own goods with those of the bailor, the following rules apply :
(a) “If the bailee, with consent of the bailor, mixes the goods of the bailor with his own goods, the bailor and the bailee shall have an interest, in proportion to their respective shares, in the mixture thus produced.”-Sec. 155.
(b) “If the bailee, without the consent of the bailor mixes lie goods of the bailor with his own goods, and the goods can be separated or divided, the property in the goods remains in the parties respectively ; but the bailee is bound to bear the
expense of separation or division, and any damage arising from the mixture.”-Sec. 156.
D bails 100 bales of cotton marked with a particular mark to B. B without D’s consent mixes the l00 bales with other bales of his own, bearing a different mark. D is entitled to have his l00 bales returned, and B is bound to bear all the expenses incurred in the separation of the bales, and any other incidental damage.
© if the bailee without the consent of the bailor, mixes If the bailee,mixes the goods of the bailor with his own goods, in such a manner t it is impossible to separate the goods bailed from the other that good, and deliver them back, the bailor is entitled to be compensated by the bailee for the loss of the goods.”-Sec. 157.
D bails superior flour worth Rs. 45 to B. B, without D’s consent . mixes the flour with inferior flour of his own, – worth only Rs. 25 B must compensate D for the loss of his flour.
5. Duty of returning goods
“It is the duty of the bailee to return or deliver according the bailor’s directions, the goods bailed, without demand, as soon as the time for which they were bailed has expired, or the purpose for which they were bailed has been accomplished.”sec160.
“If, by the default of the bailee, the goods are not delivered or tendered at the proper time, he is responsible to the bailor, for any loss, destruction or deterioration of the goods from that time.”-Sec. 161.
G agreed to carry certain goods of B expeditiously. The driver of the van which was carrying the goods, left the van unattended for one hour for lunch. During that time the goods were stolen, B filed a suit for damages against G. Held, the carrier has a duty via to deliver the goods or return them. The carrier could not do so. The van driver’s departure constitutes a fundamental breach of the contract to carry the goods forthwith to the destination. Damage, were awarded. Bontex knitting Works Ltd. v. St. John Garage
6.Accretion to the goods bailed
“in the absence of any contract to the contrary, the bailee is bound to deliver to the bailor, or according to his directions, any increase or profit which may have accrued from the goods bailed.”-Sec. 163.
C leaves a cow in the custody of B to be taken care of. The cow has a calf. B is bound to deliver the calf as well as the cow to C.
7. Liabilities of Innkeeper and Hotelkeepers
In England Innkeepers were governed by the Common Law. They were regarded as insurers, i.e., loss of or damages to customer’s goods had to be fully made up, except certain special cases. This rule was applied in Bombay High Court in an old case (1886). It is now held that the liabilities of innkeepers and hotel-keepers are as bailees and are governed by Sections 151 and 152 of the Contract Act. (See para l, p. 16“) Rampal Sing v.murray & Co.Jan & Son v. Cameron
8. Liabilities of Carriers – See Book V, Ch 1.
DUTIES OF THE BAILOR
l. Bailor’s dutyto disclose faults in goods bailed
“The bailor is bound to disclose to the bailee faults in the goods bailed, of which the bailor is aware, and which materially interfere with the use of them, or expose the bailee to extra ordinary risk, and, if he does not make such disclosure, he is responsible for damage arising to the bailee directly from such faults.
If the goods are bailed for hire, the bailor is responsible for such damage, whether he was or was not aware of the existence of such faults in the good bailed.”-Sec. 150.
(i)A lends a horse which he knows to be vicious to B. He does not disclose the fact that the horse is vicious. The horse runs away, B is thrown and injured. .A is responsible to B for damage sustained.
(ii) A hires a carriage of B. The carriage is unsafe, though B is not aware of it, and A is injured. B is responsible to A for the injury.
2. Payment of expenses in Gratuitous Bailments
“Where by the conditions of the bailment, the bailee is to receive no remuneration, the bailor shall repay to the bailee the necessary expenses incurred by him for the purpose of the bailment.”-Sec. 158.
3. Responsibility for breach of warranty of title
The bailor is responsible to the bailee for any loss which , the bailee may sustain-by reason that the bailor was not entitled
to make the bailment, or to receive back the goods or to give direction respecting them.-Sec. 164. Example :
A gives B’s car to C for use without B’s knowledge of permission. B sues C and receives compensation. C is entitled to recover his losses from A.
1. Enforcement of rights
The bailee can, by suit, enforce the duties of the bailor.
2. Bailment by several joint owners
“If several joint owners of goods bail them, the bailee may deliver them back to, or according to the directions of, one joint owner without the consent of all, in the absence of any agreement to the contrary.”-Sec. 165.
3. Bailee not responsible on re-delivery to bailor without title
“If the bailor has no title to the goods, and the bailee, in good faith, delivers them back to, or according to directions of the bailor, the bailee is not responsible to the owner in respect of such delivery.”-Sec. 166.
4. Bailee’s Particular Lien
Lien means the rights to retain property until some debt or claim is paid. The right of lien is given by law in certain cases. Lien may be of two types : General Lien and Particular Lien. General lien means the right to retain all the goods of the other party until all the claims of the holder are paid. Particular lien means the right to retain particular goods until claims on account of those goods are paid.
A bailee has a particular lien,. when he has rendered any service upon an article and is entitled to some remuneration for it according to the terms of the contract between him and the other party. The following limitations upon the Bailee’s particular . lien are to be noted-Sec. 170.
(i) The particular lien is available only if the service rendered by the bailee is one involving the exercise of labour or skill in respect of the goods bailed. There is no lien for custody charges or other charges for work not involving labour or skill.
(ii) The right of lien cannot be exercised until the services have been performed in full. When a bailee has done only a part of the work contracted for he cannot claim lien for part payment.
(iii) The lien cannot be claimed if there is an agreement to pay the money on a future date.
(iv) The lien can be exercised only so long as the goods are in the possession of the bailee. If possession is lost for any reason, the lien is also lost.
(i) .9 delivers a rough diamond to B, a jeweller, to be cut and polished, which is accordingly done. B is entitled to retain the stone till he is paid for the services he has rendered.
(ii) A gives cloth to B, a tailor, to make into a coat, B promises A to deliver the coat as soon as it is finished, and to give a three months’ credit for the price. B is not entitled to retain the coat until he is paid. S. Bailee’s General Lien Section 171 provides that bailees coming within the following categories have a general lien : bankers, factors, wharfingers; attorneys of High Court, and policy brokers. Such bailees can retain all goods of the bailor so long as anything is due to them. I he general lien in all these cases may not exist if there is a contract to the contrary. Bailees failing in categories other than those mentioned above may have a general lien if there is an express agreement to that effect.
I. Enforcement of rights
The bailor can enforce by suit all the liabilities or duties of the bailee
2. Act inconsistent with the terms
“A contract of bailment is voidable, at the option of the bailor, if the bailee does any act with regard to the goods bailed inconsistent with the conditions of the bailment.”-Sec. 153.
A lets to B• for hire, a horse his own riding. B drives the horse in carriage. This is, at the option of A. a termination of the bailment.
3. Restoration of goods lent gratuitously
When goods are lent gratuitously, the bailor can demand their return whenever he pleases, even though he lent it for a specified time or purpose. But if the bailee in such cases had acted in such a manner that the return of the goods before the stipulated time would cause loss greater than the benefit which he has received, the bailor must indemnify him for the loss if he compels an immediate return.-Sec. 159.
TERMINATION OF BAILMENT
A contract of bailment terminates under the following circumstances :
l. Efflux of time : If the bailment is for a stipulated period, the bailment terminates as soon as the stipulated period expires.
2. Fulfillment of purpose : If the bailment is for a specific purpose, the bailment terminates as soon as the purpose is fulfilled.
3. Act inconsistent with the terms : If the bailee does any act, with regard to the goods bailed, which is inconsistent with the terms of the bailment, the bailment terminates.-Sec. 153.
4. Goods lent gratuitously : A gratuitous bailment can be terminated any time but if premature termination causes any loss to .the bailee, the bailor must indemnify the bailee.-Sec. 159.
5. Death : A gratuitous bailment terminates upon the death of either the bailor or the bailee.-Sec. 162.
RIGHTS AND DUTIES OF FINDER OF GOODS
A finder of goods is in the position of a bailee if he takes charge of the goods. (See p. 132) The rights of the finder of goods can be summarised as follows.-Sections 168 and 169 :
l. Possession : He can retain possession of the goods against everybody except the true owner.
2. Compensation and Lien : H;, is entitled to be compensated for the trouble and expense incurred by him to preserve the goods and to find out the owner. He has a lien upon the goods for the payment of these sums i.e., he can refuse to return the goods until they are paid.
3. Reward : He cannot file a suit for the expense he has incurred but can sue for any reward which the owner might have offered for the return of the goods lost.
4. Sale: If the goods found are commonly the subject-matter of sale and if the owner cannot with reasonable diligence be found or if he refuses to pay the lawful charges of the finder, the goods can be sold provided the following further conditions are fulfilled
(a) When the thing is in danger of perishing or of losing the greater part of its value.
(b) When the lawful charges of the finder amount to two thirds of its value.
Duties and Obligations
The finder of goods is a bailee. Therefore, he has the following duties and obligations :
(i) He must take reasonable care of -the goods (Sec. 151).
(ii) He must not mix the finder’s goods with his own goods (Secs. I55-157).
(iii) The goods must be returned to the real owner (Secs. 160 & 161).
(iv) If there is an accretion to the goods bailed, it must be given to the real owner (Sec. 163).
(v) He must not use the goods for his purpose.
(vi) He must try to find out the true owner of the goods.
SUITS BY BAILEES OR BAILORS AGAINST WRONG-DOERS
1. Right to interplead
If a person, other than the bailor, claims the goods bailed, he may apply to the courts to stop delivery of the goods bailed and to decide the title to the goods.-Sec. 167.
2. Suit by bailor or bailee against wrong-doer
If a third party wrongfully deprives the bailee of the use of the goods bailed or does them any injury, the bailee is entitled
to use all such remedies as the owner of the goods might have used. Either the bailee or the bailor may file a suit against the third party in such cases.-Sec. 180.
3. Apportionment of relief or compensation obtained by such suits
Whatever is obtained by way of relief or compensation in any such suits shall, as between the bailor and the bailee be dealt with according to their respective interests.-Sec. 181.
BAILMENTS BY WAY OF PLEDGE OR PAWN
The bailment of goods as security for payment of a debt or performance of a promise is called Pledge or Pawn. The bailor in this case is called the. Pledgor or, the pawnor. The bailee is called the Pledgee or the Pawnee.-Sec. 172.
Difference between Bailment and Pledge
Pledge is a particular kind of bailment. The difference between Pledge and other kinds of bailment lies in the purpose or objective of the transaction. The purpose of a pledge is to
provide security for a debt or the performance of a promise. In other kinds of bailment there are other purposes for example, repair, safe-custody etc. The pledgor and the pledgee have certain special rights and duties.
When can a non-owner make a valid Pledge?
The owner of goods can always make a valid-pledge. In the following cases, one who is not, an owner can make I valid pledge.
1. Mercantile Agent
A mercantile agent who is, with the consent of the owner, in possession of the goods or of the documents of title to goods, can make a valid pledge of the goods while acting in the ordinary course of business of a mercantile agent. Such a pledge will be valid even if the agent had no authority to pledge, provided that the Pawnee acts in good faith and has not at the time of the pledge any notice that the pawnor has no authority to pledge Sec.178.
2. Possession under a voidable contract
A person having possession . of goods under a voidable contract can make a valid pledge of the goods so long as the contract is not rescinded. The Pawnee gets a good title to the goods provided he acts in good faith and without notice of the pawnor’s defect of title.-Sec. 178
A gets an ornament by inducing the owner to sell it to him by undue influence. Before the contract is rescinded by the owner, he pawns it to B. B will get a good title to the ornament provided he acted in good faith and was unaware of A’s defective title.
3. Pawnor with a limited interest
Where a person pledges goods in which he has only a iimited interest, the pledge is valid to the extent of that interest.- Sec. 179.
4. Possession with co-owner .
If one of several co-owners is in sole possession of the goods with the consent of the owners, he can make a valid pledge of he goods.-Sec. 30 (I). Sale of Goods Act.
RIGHTS OF PLEDGEE OR PAWNEE
1. Right of Retainer
“The Pawnee can retain the goods pledged. not only for payment of the debt or the performance of the promise, but also for the interest of the debt and all necessary expenses incurred by him in respect of the possession or for the preservation of the goods pledged.”-Sec. 173.
2. Retainer for subsequent advance
The Pawnee’s lien is a particular lien, i.e., he cannot retain the goods for any debt other than the debt for which the security was given unless there is an express contract to the contrary. the Pawnee makes fresh advances to the same debtor it will he presumed that the debtor has agreed to. create on the goods already pledged a lien for the fresh advance.-Sec. 174
the Pawnee is entitled to receive from the pawnor extra0rrlinary expenses incurred by him for the preservation of the goods pledged.-Sec. 175. .
4. Pawnee’s right where pawnor makes default
“If the pawnor makes a default in payment of the debt, or performance, at the stipulated time of the promise, in respect of which the goods were pledged, the Pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as collateral security ; or, he may sell the thing pledged on giving the pawnor reasonable notice of the sale.
If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the Pawnee shall pay over the surplus to the pawnor.-Sec. 176.
RIGHTS OF PLEDGOR
1. Defaulting pawnor’s right to redeem
“If a time is stipulated for the payment of the debt, or performance of the promise, for which the pledge is made, and the pawnor makes default in payment of the debt or performance of the promise at the stipulated time, he may redeem the goods pledged at any subsequent time before the actual sale of them ; but he must, in that case, pay, in addition, any expenses which have arisen from his default.”-Sec. 177.
2. Preservation and maintenance
The pledgor can enforce the preservation and proper maintenance of the goods pledged.
3. Protection of debtors
The pledgor as a debtor has various rights given to him by statutes enacted for the protection of debtors e.g., the Moneylenders Acts.