Contract , Privity in English law


DEFINITION: Voluntary assumption of possession of goods by one person (bailee) from another (bailor) for a definite or indefinite period, with an obligation to redeliver.

Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220, per Windeyer J at 238:

3 A bailment comes into existence

4 upon a delivery of goods of one person, the bailor,

5 into the possession of another person, the bailee,

6 upon a promise, express or implied, that

7 they will be redelivered to the bailor or dealt with in a stipulated way

Bailee must have possession:

Transfer of possession – distinguishes bailment from licence

1. Difficult to distinguish ( examples below.

Greenwood v Council of the Municipality of Waverley (1928): C not responsible for lost goods from locker at sheds at Bondi Beach. Locked but C not given key – just colored disc to match locker. HELD: possession had not passed to Council ( had merely let the locker to G.

Cf Ultzen v Nichols (1893): waiter took a customer’s coat and hung up behind customer. Missing. Question was it a bailment or just act of good nature? HELD: bailment.

Distinction between bailment and licence
• ‘...control over the subject chattels is the key to distinguishing between bailments and licenses. In the present case, the facts suggest that the plaintiff surrendered control of her goods to the defendants and a bailment relationship was created’: Robertson v Stang (1997) 38 CCLT (2d) 62

Car park examples:

Diverging views between distinction of licence to park and bailment.

Tinsley v Dudley [1951] 2 KB 18: Publican (hotel) not responsible for lost customer’s motorcycle in carpark that was unattended closed yard next to hotel.

UK cases: tend to regard as merely license: Ashby v Tolhurst [1937] 2 All ER 837 (‘owners are requested to show ticket when required’)

Aus courts more inclined to find bailment ie. Control over vehicle, esp where card or ticket presented...
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