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BAILMENT: Delivery of Possession

ANALYSE THE CONCEPT OF “DELEVERY OF


POSSESSION” IN THE CONTRACT OF BAILMENT.
JUDICIAL INTERPRETATION

Submitted To: Miss Padma Aparajita

Faculty: Law of Contracts

Submitted By: Sagar Chandrakar

B.A. LL.B(Hons.), Semester-III

Roll No: 121

Section- C

HIDAYATULLAH NATIONAL LAW UNIVERSITY


RAIPUR (C.G.)

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BAILMENT: Delivery of Possession

ACKNOWLEDGEMENT

First and foremost, I would like to thank my Faculty of Law of Contracts Miss Padma mam
for offering this subject, “ANALYSE THE CONCEPT OF “DELEVERY OF POSSESSION”
IN THE CONTRACT OF BAILMENT. JUDICIAL INTERPRETATION” and for her
valuable guidance and advice. She inspired me greatly to work in this project. She also
helped me in improving the perception regarding to the study of the topic in its vast resources
and in a broader way. Clearing all the doubts and uncertainty towards this project.
Therefore, I want to thank her for all her efforts and cooperation which she conferred me.

I also owe my gratitude towards University Administration for providing me all kinds of
required facilities with good Library and IT lab. Which helps me in making the project and
completing it. My special thank to Library Staff and IT staff for equipping me with the
necessary data and websites from the internet.

I would also like to thank my dear colleagues who had helped me a lot creating this project
with their ideas and thoughts over the topic. They act as a motivating and guiding force to
me during the making of this project.

_____________________
SAGAR CHANDRAKAR
ROLL NO. 121
SECTION: C

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BAILMENT: Delivery of Possession

TABLE OF CONTENTS

 ACKNOWLEDMENT………………………………………………..02
 OBJECTIVES…………………………………………………………04
 RESEARCH METHODOLOGY……………………………………..04
 ORIGIN OF LAW OF BAILMENT…………………………………..05
 MEANING OF TERM BAILMENT………………………………….06
 MEANING OF TERM DELIVERY OF POSSESSION..………....…07
 CASES………………………………………………………………...08
 CONCLUSION………………………………………………………...12
 REFRENCES………………………………………………………….13

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BAILMENT: Delivery of Possession

OBJECTIVEs

“ANALYSE THE CONCEPT OF “DELEVERY OF POSSESSION” IN


THE CONTRACT OF BAILMENT. JUDICIAL INTERPRETATION

RESEARCH METHODOLOGY

This work is descriptive and analytical in nature. Secondary and Electronic resources have
been largely used to gather information and data about the topic.

Books and other references as guided by Faculty of Law of Contract have been primarily
helpful in giving this project a firm structure. Websites have also been referred.

Uniform citation has been followed.

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BAILMENT: Delivery of Possession

Origin Of ‘LAW Of BAiLMEnT’

The first judicial exposition of the law of Bailment under the English law was first made in
the case of

Coggs v Bernard (1703) 2 Ld Raym 909 (also Coggs v Barnard)


is a landmark case both for English property law and contract law, decided by
Sir John Holt, Chief Justice of the King's Bench. It sets out the duties owed by a
bailee - someone in possession of property owned by another.

FACTS:

William Bernard undertook to carry several barrels of brandy belonging to John Coggs from
Brooks Market, Holborn to Water Street, just south of the Strand (about half a mile).
Bernard's undertaking was gratuitous; he was not offered compensation for his work. As the
brandy was being unloaded at the Water Street cellar, a barrel was staved and 150 gallons
were lost.

Coggs brought an action on the case against Bernard, alleging he had undertaken to carry the
barrels but had spilled them through his negligence.

JUDGEMENT:

Holt CJ at the London Guildhall found that Mr Bernard, the defendant, was negligent in
carrying the casks and was therefore liable as a bailee. Holt made clear that Bernard's
responsibility to Coggs was not formally contractual in nature, since he received no
consideration. Instead, his responsibility rested on the trust that Coggs placed in him to use
due care in transporting the casks, and by his tacit acceptance of that trust by taking the casks
into his custody. Thus, because Bernard acted negligently when he was under a responsibility
to use care, he was held to be in breach of a trust.

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BAILMENT: Delivery of Possession

Meaning Of TErM ‘BAiLMEnT’

The temporary placement of control over, or possession of personal property by one person,
the bailor, into the hands of another, the bailee, for a designated purpose upon which the
parties have agreed.

The term bailment is derived from the French word ‘bailor’, “to deliver”. It is
generally considered to be a contractual relationship since the bailor and bailee, either
expressly or impliedly, bind themselves to act according to particular terms. The bailee
receives only control or possession of the property while the bailor retains the ownership
interests in it. During the specific period a bailment exists, the bailee’s interest in the property
is superior to that of all others, including the bailor, unless the bailee violates some term of
the agreement. Once the purpose for which the property has been delivered has been
accomplished, the property will be returned to the bailor or otherwise disposed of pursuant to
the bailor’s directions.

Definition

Bailment has been defined

 under Section 148 of Indian Contract Act 1872 according to which:

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 direction of the person delivering them. The person delivering
the goods is called the "bailor". The person to whom they are delivered is called the "bailee".

 According to Halesbury’s Law of England

Bailment is traditionally defined as a delivery of personal chaddels or trust usually on a


contract express or implied that the trust shall be duly executed and the chaddels be
redelivered either in their original or altered form as soon as the time or use for or condition
on which they were bailed shall have elapsed or be performed.

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BAILMENT: Delivery of Possession

MEAning Of ThE TErM “delivery of possession”

Most important and essential feature of Bailment is “Delivery of Possession” by one person
to another. The goods must be handed over to the bailee for whatever is the purpose of
bailment. Once this is done, a bailment arises, irrespective of the manner in which this
happens. There must be deilevery of goods that means possession of goods must be
transferred.

Bailment of goods is always made for some purpose and is subjet to the condition that when
the purpose is accomplished the goods will be returned to the bailor or disposed of according
to his mandate. If the person to whom the goods are delivered is not bound to restore them to
the person delevering them or to deal with them according to his directions, their relationship
will not be that of bailor and bailee

Definition

Section 149 Explains the term of delivery of possession as

The delivery 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.

Delivery of Possession is of two kinds:

i. Actual Delivery, and


ii. Constructive Delivery.

Actual Delivery:

When the bailor hands over to the bailee physical possession of the goods, that is called
“actual delivery”.

Constructive Delivery:

When there is no change of physical possession, goods remaining where they are, but
something is done which has the effect of putting them in the position of the bailee, that is
called “constructive delivery”.

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BAILMENT: Delivery of Possession

Cases

 Ultzen v. Nicolls
1894 1 QB 92

Facts:

An old customer who is plaintiff in this case went into a restaurant for the purpose of dining
there. When he entered the room a waiter took his coat, without being asked, and hung it on a
hook behind him. When the customer rose to leave the coat was gone.

Judgement:

What the waiter did might be no more than an act of voluntary courtesy towards the
customer, yet the restaurant-keeper was held liable as a bailee. The waiter by taking the coat
into his possession had relieved the plaintiff of its care and had thus assumed the
responsibility of a bailee. It was he who selected the place where the coat should be put.

But if the customer had instructed the servant where and how the coat should be put, the
result, perhaps, would have been otherwise.

 Kaliaperumal pillai v. visalakshmi


Air 1938 mad 32

Facts:

A lady handed over to a goldsmith certain jewels for the purpose of being melted and utilized
for making new jewels. Every evening as soon as the goldsmith’s work for the day was over,
the lady used to receive the half made jewels from the goldsmith and put them into a box in
the goldsmith’s room and keep the key in her possession. The jewels were lost one night.

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BAILMENT: Delivery of Possession

Judgement:

Lady’s action against the goldsmith failed. The court held that “any bailment that could be
gathered from the facts must be taken to have come to an end as soon as the plaintiff was put
in possession of the melted gold. Delivery is necessary to constitute bailment. The mere
leaving box in a room in the defendant’s house, when the plaintiff herself took away the key,
cannot certainly amount to delivery within the meaning of the provision in section 149.

 N.R. Srinivasa Iyer vs New India Assurance Co., Ltd

22 July, 1983 AIR 899

Facts:

The appellant's motor car, insured with the respondent (`insurer') suffered damage in an
accident and was taken to and left in the custody of a repairer. On receipt of intimation of the
accident, the insurer entered into correspondence with the repairer, accepted the estimate of
repair charges and advised the repairer to proceed with the repairs. The. motor car was,
however, destroyed in a fire which occurred hl the repairer's workshop. The appellant filed a
suit claiming from the insurer the value of the motor car on the footing that the insurer was
the bailee of the motor car while it was in the custody of the repairer. The trial court upheld
the contention of the appellant and decreed the suit but, in appeal, the High Court set aside
the decree and dismissed the suit on a ground not related to the contention based on the
contract of bailment. This Court allowed the appeal of the appellant and remitted the same to
the High Court requesting it to deal with the following questions: (i) whether the insurer was
a bailee of the motor car; (ii) Whether the insurer failed to take as much care of the car as a
person of ordinary prudence would in similar circumstances; and (iii) The value of the
destroyed car.

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BAILMENT: Delivery of Possession

Judgement:

The High Court held on the basis of the correspondence between the parties that the car was
entrusted to the repairer by the appellant's son on behalf of the appellant, that this was done
without reference to the insurer, that the insurer had only agreed to pay the repair charges and
that therefore the insurer was not a bailee of the motor car.
But the Supreme court in this case held that the owner of car involved in an accident
delivered it under the policy on behalf of the insurer to the nearest garage for repairs. This
delivery was regarded as sufficient to constitute the insurance company as a bailee and the
garage as a sub bailee. They become responsible for the loss of the car in afire on the
premises.

 Fazal v. salamat rai


1928 120 ic 421

Facts:

The defendant was holding the plaintiff’s mare under the execution of decree. The plaintiff
satisfied the decree and the court ordered redelivery of the mare to the plaintiff. The
defendant, however refuse to do unless his maintenance charges were also paid. The mare
was stolen from his custody.

Judgement:

The court said that after the delivery order had been passed, the relation of bailor and bailee
was established by the virtue of the explanation to Section 148.

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BAILMENT: Delivery of Possession

 Bank of chittor v. narasimbulu


Air 1966 ap 163

Facts:

A person pledged the projector machinery of his cinema under an agreement which allowed
him to retain that machinery only for the use of cinema

Judgement:

it was held that there was a constructive delivery, or delivery by attornment to bank. Since
then there was a change in the legal character of the possession of the goods, though not in
the actual and physical custody. Even though the bailor continued to remain in possession, it
was the possession of the bailee.

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BAILMENT: Delivery of Possession

Conclusion

Delivery of possession is the main element of Bailment. There can be no bailment unless
there is a delivery of goods and a promise to return. One who has the custody without
possession, like a servant, or a guest using host’s goods is not a bailee. The goods must be
handed over to the bailee for whatever is the purpose of bailment. Once this is done, a
bailment arises, irrespective of the manner in which this happens.

If a person already in possession of goods of another contracts to hold them as a bailee, he


thereby becomes the bailee and the owner becomes the bailor although they may not have
been delivered by way of bailment.

Bailment of goods is always made for some purpose and is subject to the condition that
whenthe purpose is accomplished the goods will be returned to the bailor or disposed of
according to his mandate.if the person to whom the goods are delivered is not bound to
restore them to the person delivering them or to deal with them according to his directions,
their relationship will not be that of bailor and bailee.

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BAILMENT: Delivery of Possession

References

 Contract act and specific relief act: Avtar Singh (Tenth Edition)

 Bare Act of Indian Contract Act, 1872

 http://indiankanoon.org/doc/1469424/

 http://www.indiankanoon.org/doc/628350/

 http://www.indiankanoon.org/doc/1799741/

 http://en.wikipedia.org/wiki/Coggs_v_Bernard

 bailment%20legal%20definition%20of%20bailment.%20bailment%20synonyms%20by%20the%2
0Free%20Online%20Law%20Dictionary.htm

 Bailment%20-%20Wikipedia,%20the%20free%20encyclopedia.htm

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