NAME- NAMAN MISHRA

TOPIC-Loss occurred by the bailee’s servant.

BAILMENT: UNORTHRODOX CONCEPT OF CONTRACT LAW

INTRODUCTION

Bailment is the delivery of products for some particular reason, and when that intention is over,
goods are conveyed back or to be managed in a way so given by the bailor. Bailment implies and
incorporates any sort of taking care of over of the products. Be that as it may, it does exclude the
loan of money, except if and until, it is settled upon to convey the same sort of coins. Change of
ownership, physical or valuable is primary fundamental element of bailment. "In the contract of
bailment, the bailer takes the ownership, to redeliver them, or to be managed then in a way so
gave by the bailor. In any case, a worker or a visitor who are utilizing their goods, are considered
to have guardianship with out "ownership" so no inquiry of bailment emerges1.

But, it is possible that a seller some time stands in the capacity of bailor, if he had contracted to
have the possession of goods, after their sale, on behalf of the buyer2. So in order to create a
contract of bailment between seller and buyer, there should be a separate contract to retain the
possession of goods, even after their sale. Then the goods will remain at the risk of seller even
after their sale. Where a condition in an auction provides that the moment the auction sale was
declared, the loss will be at the risk] of buyer, i.e., buyer will have to take the delivery with
immediate effect after the completion of the auction sale3.

Meaning of Bailment

According to Section 148 of the Indian Contract Act:

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

1
Annamalai Timber Trust Ltd. v. T.G., 305 at 308: ILR (1954): TC 208: 1954 Ker. LT 60.
2
Explanation of Sec. 148 of Indian Contract Act.
3
Hanutmal Bhtoria v. Dominion of India, A.I.R. 1961 Cal. 50 at 58.
Under the Indian Contract Act, bailment consists of delivery of goods by one person to another
for some purpose. Such goods are to be returned when the purpose is accomplished or they are to
be disposed of according to the directions of the bailor.4

DAMAGE DUE TO ACT OF BAILEE’S SERVANT

Where the act has been due to bailee’s servant, he would be liable if the servant‘s act is within
the scope of his employment. In Morris v. CW Martin and Sons. It was said that the bailee was
bound to bring reasonable care to the execution of every part of duty accepted.

Morris v. CW Martin and Sons5

Facts- The plaintiff took her mink stole to the defendants for cleaning. An employee received
and stole the fur. The judge had held that the defendants were not liable because the theft was not
committed in the course of employment.

Held- The litigants were obligated. Bailment incorporates as a component an acceptance of

accountability by the bailee to protect the merchandise, in other words to take sensible
consideration of the products. In a bailment for remuneration the obligation was non-delegable.
The representative had changed over the hide throughout his business. In spite of the fact that the
specialists were not clear, he had not committed the demonstration while 'on his very own skip'.

Diplock LJ stated: 'If the standard set down in Lloyd v Grace, Smith and Co6 is applied to the
realities of the current case, the respondents can't in my view get away from risk for the
transformation of the offended party's hide by their hireling Morrissey. They acknowledged the
hide as bailees for remuneration so as to clean it. They set Morrissey as their operator in their
proper place to clean the hide and to assume responsibility for it at the same time. The way
wherein he acted in accomplishing that work was to change over it. What he was doing, yet
untrustworthily, he was doing in the degree or course of his work in the specialized feeling of
that inadvisable however respected expression.

The respondents as his lords are liable for his tortious demonstration.' and ‘If the bailee in the
current case had been a characteristic individual and had changed over the offended party's hide

4
Section 148 of the Indian Contract Act, 1872.
5
[1966] 1 QB 716, [1965] 3 WLR 276
6
[1912] AC 716.
by taking it himself, nobody would have contended that he was not at risk to her for its
misfortune. In any case, the respondent bailees are a corporate individual.

They couldn't play out their obligations to the offended parties to take sensible consideration of
the hide and not to change over it in any case than vicariously by common people going about as
their hirelings or specialists. It was one of their hirelings to whom they had depended the
consideration and authority of the hide to accomplish work upon it who changed over it by
taking it. For what reason would it be a good idea for them to not be vicariously subject for this
break of their obligation by the vicar whom they had decided to perform it? . . ‘and’ nor are we
worried about what might have been the risk of the respondents if the hide had been taken by
another hireling of theirs who was not utilized by them to clean the hide or to have the
consideration and authority of it. The insignificant truth that his work by the respondents allowed
him the chance to take it would not get the job done. ... I base my choice for this situation on the
ground that the hide was taken by the very hireling whom the respondents as bailees for
remuneration had utilized to deal with it and clean it.'

Salmon LJ stated: 'The litigants are at risk for what added up to carelessness and transformation
by their hireling over the span of his work'. He underscored the significance of the cheat being
the worker through whom the respondents had decided to release their obligation to take sensible
consideration of the hide.' A bailee for remuneration isn't responsible for a burglary by any of his
hirelings yet just for a robbery by such of them as are deputed by him to release some piece of
his obligation of taking sensible consideration. So for this situation, on the off chance that
somebody utilized by the litigants in another terminal had broken in and taken the hide, the
respondents would not have been at risk.

“Correspondingly on the off chance that an assistant utilized in a similar station had taken
advantage of the lucky break of going into the room where the hide was kept and had taken it,
the litigants would not have been at risk.’’

Lord Denning: 'When a man has assumed responsibility for products as a bailee for
remuneration, it is his obligation to take sensible consideration to guard them: and he can't get
away from that obligation by assigning it to his worker. In the event that the products are lost or
harmed, while they are in his ownership, he is subject except if he can show – and the weight is
on him to show – that the misfortune or harm happened with no disregard or default or
unfortunate behavior of himself or of any of the hirelings to whom he assigned his obligation.'

CONCLUSION

Finder of merchandise is a piece of quasi contract or certain connection looking like to those
made by an agreement. Here it would be important that discoverer of merchandise has similar
standards of obligations and obligations towards the guiltless gatherings as given to the bailee.
This is something which is referenced in the Indian Contract Act 1872 under section 71 which
peruses as under:

"An individual who discovers products having a place with another, and brings them into his
authority, is dependent upon a similar duty as that of a bailee."

Since the concept of vicarious liability is a contract in itself therefore if we combine the rule of
bailment and vicarious liability it becomes very clear that if damage is caused to the bailor due to
the mismanagement or negligence of bailee’s servant bailee will be liable for the act of his
servant.