#3673 - Property Torts - Aspects Of Obligations

Aspects of Obligations

Bailment & Property Torts

15 September 2011

1. Bailment

   1. Introduction to Ownership & Possession

   2. General Features

   3. Legal Character

   4. Possession consists of factual control and an intent to exclude others from control

   5. Young v Hichens (1844) (HC) –fisherman had just caught some fish but had not get put the lid on the net. Somebody took them instead and fisherman could not show that he had been in control when the lid had not been put on the net yet

   6. The Tubantia (1924) (CA) –claimants had earmarked a wrecked ship using buoys and lines and defendant interfered. Claimants were in possession because they were exercising the use and occupation of which the subject matter was capable

   7. Can distinguish Young v Hichens because here, they were in a position to prevent defendant from exercising a similar degree of control

   8. Indivisibility

   9. Possession is based on the exclusion of others, and cannot be shared

   10. However, there may be consensual shared possession

   11. Bailor and bailee may also simultaneously possess

   12. The fact that the bailee may recall the item at any time is a reflection on relativity

   13. Great Eastern Railway v Lord’s Trustee (1909) (HL) –defendant had lien over coal that it kept for itself. It was already in possession when it refused claimant to recover it

   14. Extent of Control

   15. An employee will only have custody of items, whereas an employer has possession

   16. This is comparable to other circumstances too (e.g. hotel guests, diners in restaurants)

   17. Acquisition by Finding

   18. Abandoning Possession

   19. Possession may be given up, but if still owned, possession can be later retained

   20. If only possession abandoned, the finder will lose possession if taken up again by owner

   21. Abandoned Chattels

   22. The first finder of the abandoned chattel then takes position of the true owner

   23. Lost Chattels

   24. The first finder of a lost chattel takes a property right subject to the true owner

   25. The finder is deemed to hold as bailee under a fictitious bailment

   26. Therefore, if the finder deals in a way where he would commit the tort of conversion if he were a bailee, he is similarly held responsible here

   27. There is a duty to try to find the true owner, and if this is not complied with, he is no longer immune from the tort of conversion

   28. Parker v British Airways Board (1982) (CA) –passenger at Heathrow found a gold bracelet in the executive lounge and handed it to the airport authority, asking it to be returned to him if true owner was not found. Authority sold it and took the proceeds. There was no intention to control things on premises, so finder had better claim

   29. Would have been different had a notice been put up of intention to control any items

   30. Also would be different with things attached to or under the land–occupier would control

   31. As a matter of policy, law favours occupier when finder is trespassing upon land

   32. Employee finders would have custody while employers would possess

   33. Waverley BC v Fletcher (1996) (HC) –finder discovered medieval brooch under authority’s land but couldn’t claim

   34. Treasure Trove

   35. Prerogative Claim

   36. The Crown has a claim if the chattel found is treasure trove

   37. This is money or coin, gold, silver, plate or bullion that has been hidden

   38. Must be hidden to get around any suggestions it has been abandoned

   39. There is a presumption that they have been hidden if buried or in a place of concealment

   40. Treasure Act 1996

   41. This supplements the common law definition with things at least 300 years old

   42. Includes coins together with other metallic objects with at least 10% gold/silver content

   43. Secretary of State can designate as treasure objects at least 200 years old if important

   44. The requirement that the property be hidden has been removed by this Act

   45. Bailment

   46. Definition

   47. Transfer of Possession

   48. The relationship by which a bailor transfers possession of a chattel to a bailee

   49. Can be at will (recall at any time) or for a fixed period (recall after a certain time)

   50. TRM Copy Centres v Lanwall Services (2009) (HL) –Lord Hope – when goods are given to another on the condition that they be restored to the transferee

   51. Bailor Possession

   52. Bailor must have had possession or a right to possession

   53. Armory v Delamirie (1721) (HC)

   54. Bailee Possession

   55. Bailee will then have possession of the item

   56. Ashby v Tolhurst (1937) (CA) –car park attendant allowed thief to take away car even though he had no ticket nor keys. Car park benefitted from exclusion clause. Held that possession of the car had not passed– there was no bailment.

   57. Voluntary Assumption of Possession

   58. The bailee must receive possession voluntarily

   59. Lethbridge v Phillips (1819) (HC) – picture sent to defendant without the latter’s knowledge. Defendant damaged it but was not a bailee because it was not received voluntarily

   60. East West Corpn v DKBS (2003) –relies on consent rather than contract

   61. The transferee must know that the property belongs to another person

   62. Marca v Christie’s (2004) (HC) –Tuckey LJ –if you are to owe duties to somebody you should have some means of knowing of his existence

   63. Goods Capable of Bailment

   64. The goods must be capable of bailment

   65. Dobon v North Tyneside HA (1997) (CA) –can have possession of a corpse for purposes of disposal and burial. Arguable that a corpse could become property if subjected to a process such as embalming or stuffing

   66. Hoath v Connect Internet Services (2006) (SCNSW) –right to use domain name could not be part of bailment relationship because it was a chose in action, not tangible property

   67. Yearworth v North Bristol NHS Trust (2009) (CA) – question whether sperm could be owned. Men had ownership since they alone generated and ejaculated. Just because they couldn’t direct it doesn’t mean they don’t own– use of property often encumbered. Sperm couldn’t continue to be stored without their consent and nobody else had rights in it

   68. Types of Bailment

   69. Coggs v Bernard

   70. Six types of bailment have been recognised in Coggs v Bernard

   71. Coggs v Bernard (1703) (HC) –Lord Holt –deposit for bailor’s purpose, gratuitous loan for bailee’s purpose, hire of a chattel paid for by bailee, pledge of valuables as security for loan made by bailee, delivery of chattel to permit service for bailor, delivery of chattel for gratuitous service

   72. Loans for Consumption

   73. A loan for fungible goods is not a bailment – original chattels do not need to be returned

   74. Mercer v Craven Grain Storage (1994) (HL) –bailment found calling for return of an equivalent quantity of grain. Casts doubt on reasoning that where the original chattels do not have to be returned there is no bailment. Bridge –dodgy decision

   75. Hire Purchase

   76. A hire purchase agreement is a bailment until the hirer exercises the option to purchase

   77. Bailee and Third Parties

   78. The bailee has a better title than all others except the bailor

   79. The Winkfield (1902) (CA) – two ships carried post, and one collided and lost it all. Post Office as bailee sued for damages. Bailees can recover against wrongdoers. Collins MR –bailee has absolute and complete ownership and can recover in full. If the bailor has already succeeded in action against the wrongdoer, latter has a defence against bailee

   80. Bailor and Third Parties

   81. If Bailor Has an Immediate Right to Possession

   82. Where the bailor has an immediate right to possession, he can claim for damages

   83. The Winkfield (1902) (CA)

   84. East West Corpn v DKBS (2003) (CA) –Mance LJ –possession is not the only way. If the bailment is revocable at will, bailor will have rights

   85. If Bailor Does Not Have an Immediate Right to Possession

   86. If bailor has no immediate right to possession, permanent damage to the reversionary interest must be shown for him to have a claim against the third party

   87. HSBC v Network Rail (2005) (CA) –third party damaged bailed carriages owned by HSBC. Carriages had been repaired/replaced, so no permanent damage to reversion

   88. Duty to Account

   89. If the bailee successfully sues the wrongdoer, he must account to the bailor

   90. The Winkfield (1902) (CA)

   91. Claims of Bailor and Bailee Mutually Exclusive

   92. If either bailor or bailee have sued the wrongdoer, the other’s claim is barred

   93. O’Sullivan v Williams (1992) (CA) –wrongdoer’s excavator fell on car owned by A and used by B. if bailee succeeds, bailor cannot succeed. If bailor succeeds, bailee cannot succeed. Here, A had already succeeded so B couldn’t also sue

   94. Sub Bailment

   95. Sub-bailees may owe a duty of care to the original bailors

   96. Morris v CW Martin (1966) (HC) –furrier (bailee) sent a mink coat to a specialist dry-cleaner (sub-bailee) who then stole it. Lord Denning –might have allowed sub-bailee to rely on exclusion clause as against bailor if there was one

   97. The Pioneer Container (1994) (PC) –bailor held to have consented to a term in the bailee-sub-bailee contract. Bailment relationship created between bailor and sub-bailee without destroying other relationships

   98. East West Corpn v DKBS (2003) (CA) – Mance LJ – recites Pioneer Container

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