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Queensland University of Technology

Nick DowseBAILMENTEXECUTIVE SUMMARYELEMENTS SUMMARYLEADING CASESTABLE OF CONTENTSOPENING STATEMENT2GIVE DEFINITION OF BAILMENT2IS THERE A BAILMENT HERE2WHAT TYPEKIND OF BAILMENT IS THIS3IS THERE A CAUSE OF ACTION4EXEMPTION CLAUSES9SUBBAILMENTS10SPECIAL BAILMENTS12RELATIONSHIPS DISTINGUISHED FROM BAILMENTS17TERMINATION OF BAILMENT19TABLE OF CONTENTSPage 1 of 19Nick DowseOPENING STATEMENTThe arrangement that X has with Y may in fact be a bailment which will give rise to certain rights and duties under the agreement or at common law Matthew ShortGIVE DEFINITION OF BAILMENTA bailment arises upon delivery of goods by the bailor to the bailee upon a promise express or implied that they will be redelivered to the bailor or some other person Hobbs v Petersham TransportIS THERE A BAILMENT HEREThere are three elements to a bailment1Actual or constructive delivery of the goods by the bailor to the bailee and2Voluntary or consensual assumption of possession of the goods by the bailee and3Promise of redelivery or if finding assumption of responsibility for safekeepingActual or Constructive Delivery Element 11This is a question of fact Ashby v Tolhurst2Actual deliveryManual delivery or actual handing over The transferee obtains physical possession3Constructive deliveryThere is no change in actual possession but there is a change in its character aThe person in actual possession holds the property on behalf of someone else eg person who leaves buys a book from a store but forgets to take the book awaythe person holding the book no longer holds it for themselves they hold it on behalf of the purchaser 4The bailee must be in possession of the goods but it can be constructive possession ie given keys to warehouse where goods are kept5Bailee can gain possession without the knowledge or consent of the bailor ie a thief6ExamplesaChange left on counter stolen by thievesno possession Balmoral Supermarket v Bank of NZbLuggage left in back seat of taxino bailment Hancock v CunnaincIf car parked for a fee and keys to car given to attendantbailment Shorters Parking v JohnsoniBut if keys are retained by the cars owner even if fee paid no bailment Ashby v TolhurstdIf engaged to merely organise transport of goods just to be around to make sure it all went to plan without any actual possession of the goods in questionno bailment Matthew ShortVoluntary or Consensual Assumption of Possession of the Goods Element 21A bailee must consent to the bailment by a voluntary assumption of possession of the goods Pioneer ContaineraThis may take place without the knowledge or consent of the bailor Pioneer ContainerbA person who voluntarily takes the goods of another into his custody holds them as bailee of that person Pioneer Container2The bailee must know what goods they are taking custody of so that if an item is concealed and the bailee is unaware of its existence there is no bailment of that item Wills v State RailPage 2 of 19
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