Duhaime's Law Dictionary

Bailment Definition:

The transfer of possession of something (by the bailor) to another person (called the bailee) for some temporary purpose (eg. repair or storage) after which the property is either returned to the bailor or otherwise disposed of in accordance with the contract of bailment.

Related Terms: Bail, Bailee, Bailor, Carriage, Agistment

In Rich v Touche Ross, Justice Brieant of the United States District Court (New York) used these words:

"... a bailment has been defined as a delivery of personal property for some particular purpose, or a mere deposit, upon a contract express or implied, and that after such purpose has been fulfilled it shall be redelivered to the person who delivered it, or otherwise dealt with according to his directions, or kept until he reclaims it."

Any credible treatise of the law of bailment necessarily refers to Coggs v Bernard, a 1703 case before Justice Holt. Bernard had undertaken to move goods from one location to another for Coggs. The goods were damaged in the transportation.

Justice Holt proposed six "sorts of bailment":

"... a bare naked bailment of goods delivered by one man to another to keep for the use of the bailor;

"The second sort is when goods or chattels that are useful, are lent to a friend gratis, to be used by him.... the thing is to be restored in specie.

"The third sort is when goods are left with the bailee to be used by him for hire....

"The fourth sort is when goods or chattels are delivered to another as a pawn, to be a security to him for money borrowed of him by the bailor...

"The fifth sort is when goods or chattels are delivered to be carried or something is to be done about them for a reward to be paid by the person who delivers them to the bailee who is to do the thing about them.

"The sixth sort is when there is delivery of goods or chattels to somebody, who is to carry them or do something about them gratis, without any reward for such work or carriage...."

In his 2009 book on the subject, Norman Palmer wrote:

"The essence of bailment is possession.

"The word derives from the French verb bailler, meaning to deliver.

"The doctrine is confined to personal property and denotes a separation of the actual possession of goods...."

Bailment, as quoted in Petrifond v Midwest (Alberta Court of Appeal, citing Fridman's Law of Agency, 6th Ed.):

"... is the delivery or transfer of possession of a chattel (or other item of personal property) with a specific mandate which requires the identical (thing) either to be returned to the bailor or to be dealt with in a particular way by the bailee....

"(T)he bailee does not represent the bailor.  He merely exercises, with the leave of the bailor (under contract or otherwise), certain powers of the bailor in respect of his property.  (T)he bailee has no power to make contracts on the bailor's behalf; nor can he make the bailor liable, simply as bailor, for any acts he does."

Bailment implies, by definition, the return by the bailee of the goods or personal property; otherwise the contract would be one of sale.

And like elsewhere, as the common law employed judges and barristers to weave a perpetual quilt of jurisprudence, the law of bailment, as it were, has its own books and professors. One, published in 1901 by Wyatt Paine, has a real legalese flavor to the title:

"Bailments: A Commentary on the Law of Custody and Possession As Distinguished From Property, in Chattels".

Lending your car or any other item of personal property is a typical bailment contract. Commercial bailees, such as storage facilities and garages, will usually, but not always, qualify liability by contract. This is almost always the case in maritime law and the transportation industry which rely extensively on the law of bailment.

Judicially, the topic is a challenge. For example, this was offered on the topic in North King Lodge Ltd. v. Gowlland Towing Ltd.:

"(Bailment) eludes precise definition because the term covers a host of legal relationships which have as a common denominator only that one is in possession of another’s chattel.  Possession is the salient feature....

"Judges and writers have more or less consistently treated bailment as an express or implied contract....

"Bailment has been defined as the delivery of personal chattels on trust, usually on a contract, express or implied, that the trust shall be executed and the chattels be delivered in either their original or an altered form as soon as the time for which they were bailed has elapsed.  It is to be noted that the legal relationship of bailor and bailee can exist independently of a contract.  It is created by the voluntary taking into custody of goods which are the property of another."

One little-known example of the challenges the law of bailment can present is the 1894 case of DiIberto v Harris, in which the relevant facts as well as his judicial opinion, are set out in the dissenting opinion of the then-chief justice of the Supreme Court of Georgia (USA), Logan Bleckley (1827-1907) as follows, and with apologies for the use of old English (eg. "hath" and "taketh") but nonetheless faithfully reproduced from the Georgia Law Reports:

"It hath never happened from the earliest times to the present that barbers, who are an excellent order of small craftsmen, serving their customers for a small fee and entertaining them the while with the small gossip of the town or village, have been held responsible for a mistake made by one customer whereby he taketh the hat of another from the common rack or hanging place, being in the same room in which customers sit to be shaved.

"The reason is that there is no complete bailment of the hat. The barber hath no complete custody thereof, and the fee for shaving is too small to compensate him for keeping a servant to watch it, and at the same time shave the owner.

"Moreover, the value of an ordinary gentleman's hat is so much, in proportion to the fee for shaving, that to make the barber an insurer against such mistakes of his customers would be unreasonable. The loss of one hat would absorb his earnings for a whole day; perhaps many days. The barber is a craftsman laboring for wages, not a capitalist conducting a business of trade or trust."


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