LLB220 Study Guide - Midterm Guide: Reverse Onus, Bailment, Consumer Protection
BAILMENT CONTINUED; CONTRACT V COMMON LAW
Contract
“Where the bailment is created by contract, the extent to which the common law principles (of
bailment) continue to apply depends on the construction of the contract.” Hill v Reglon [2007]
NSWCA – contract is the starting point of obligation
Act of accepting means they consent to being subject to the common law of bailment regardless
of whether there is a separate contractual agreement
Common law
If no contractual terms duties of bailor and bailee governed by common law
Bailor’s duties
-Deliver the goods to the bailee
-Not interfere with the bailee’s lawful possession during the bailment
-Notify bailee if the goods are dangerous (Pivovaroff v Chernabaeff (1978) 21 SASR1)
-Where bailment is a hiring for reward, to ensure that the goods are fit for their purpose
(note Australian consumer law puts duties on bailor too)
Nature of bailment Standard of care
Gratuitous bailment made for the benefit of
the bailor
Bailee liable only for gross negligence –
higher standard of care
Gratuitous bailment made for the benefit of
the bailee
Bailee liable for the slightest negligence –
standard of care is EXTRA CARE
Bailment for reward Bailee must take reasonable care
(From Coggs v Barnard (1703) 2 Ld Raym 909)
Gratuitous bailment
Three forms:
1. Gratuitous deposit of goods to bailee for safekeeping
2. Delivery of goods to a bailee for work to be done on the goods for the benefit of the
bailor without reward
3. Delivery of goods by way of gratuitous loan for use by the bailee.
“[A]ny benefit or advantage, however prospective or conjectural is conferred … provided that it
was with such advantage in mind that (the bailor or bailee) entered into the bailment, or
continued that relationship…” (Palmer on Bailment)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Where the bailment is created by contract, the extent to which the common law principles (of bailment) continue to apply depends on the construction of the contract. hill v reglon [2007] Nswca contract is the starting point of obligation. Act of accepting means they consent to being subject to the common law of bailment regardless of whether there is a separate contractual agreement. If no contractual terms duties of bailor and bailee governed by common law. Not interfere with the bailee"s lawful possession during the bailment. Notify bailee if the goods are dangerous (pivovaroff v chernabaeff (1978) 21 sasr1) Where bailment is a hiring for reward, to ensure that the goods are fit for their purpose (note australian consumer law puts duties on bailor too) Gratuitous bailment made for the benefit of the bailor. Bailee liable only for gross negligence higher standard of care. Gratuitous bailment made for the benefit of the bailee.
