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Report No. 13

116. Sections 146-147.- No change is recommended in sections 146 to 147.

117. Section 148.-

A contract of bailment may be implied in fact or in law. In Queen v. McDonald, 13 QB 323 (326-327). Lord Coleridge, C.J. observed:

"It is not correct as it appears to me, to use the expression "contract of bailment" in a sense which implies that every bailment must necessarily in itself be a contract. I do not so understand the definition of the term "bailment". It is perfectly true that in almost all cases a contract either express or implied by law accompanies a bailment, but it seems to me that there may be a complete bailment without the contract. According to all the definitions, as for instance, those given in Sir William Jones, Blackstone & Kent's Commentaries, it would appear that a bailment consists in the delivery of an article upon a condition or trust. It is true, I know, that the authors of those various definitions go on to say that there is a promise or contract to restore the goods, but this is not, as it seems to me, the bailment itself, but "a contract that arises out of it".

The American Law also recognises a contract of bailment by implication of law. The law is thus stated in American Jurisprudence: "It has previously been observed that an actual contract or one implied in fact is not always necessary to create a bailment; that such a contract may be implied in law as well as in fact. Where, otherwise than by a mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, for example, where possession has been acquired accidentally, fortuitously, through mistake, by an agreement since terminated, or for some other purpose, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, for such relationship. Such quasi-contracts of bailment include what are known as constructive and involuntary bailments".1

1. 6 Am Jur (Rev. Edn.) Bailments, Section 86.

In our opinion, the present definition of bailment should not be altered. But the case of what has been described as quasi-contract of bailment should be provided for in a separate section stating that the bailor and bailee in such cases must, so far as may be, perform the same duties, and be subject to the same liabilities and disabilities as if they were bailors and bailees under a contract express or implied as provided in section 148.1

1. Vide section 181A, App I.

Indian Contract Act, 1872 Back

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