British Institute of International and Comparative Law

Gratuitous Bailment: Contract or Tort?

Author(s): N. E. Palmer
Source: The International and Comparative Law Quarterly, Vol. 24, No. 3 (Jul., 1975), pp.
565-572
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
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JULY 1975], Gratuitous Bailment-Contract or Tort? 565

GRATUITOUS BAILMENT-CONTRACT OR TORT?

THE concept of bailment has always occupied a peculiar plac
law. Antedating both the notion of contract and the tort o
gence, it has repeatedly suffered attempts to assimilate it under
the other of these categories. The judges are not solely to b
this loss of identity. Over-simplification has occasionally com
the Legislature, forcing the courts to pigeon-hole actions fo
of bailment as either contractual or tortious for the purpose
County Courts Acts 1 or for the purposes of limitations of
This neglect of the special character of bailment has not gone
uncriticised.3
Gratuitous bailments are especially vulnerable to this regimentation.
The apparent lack of consideration has produced, first, a contractual
fiction and, latterly, an over-reaction in favour of tort which could
threaten to submerge the independent character of the relationship
altogether; for the absence of contract between the gratuitous bailor
and bailee does not necessarily mean that their responsibilities are
purely tortious.
In Coggs v. Bernard 4 Holt C.J. sowed the seeds of modern con-
fusion by applying to bailments the necessity for consideration. This
was not the first occasion upon which such a demand had been
applied, but until 1703 the authorities had been divided and the
stronger view may have been against the need for consideration.5
Holt C.J. perceived it in the fact that the bailor under a gratuitous
bailment had trusted the bailee with his goods.6 This was deemed
sufficient benefit to sustain what was in reality a delictual action mas-
querading under the guise of contract.' Later English cases adopted
the fiction of treating gratuitous bailments as a species of contract.8
In Blakemore v. Bristol & Exeter Railway Co.9 the court used it to

1 Turner v. Stallibrass [1898] 1 Q.B. 56. 2 Chesworth v. Farrar [1967] 1 Q.B. 407.
3 See, for instance, Winfield, Province of the Law of Tort (1931) p. 101.
4 (1703) 2 Ld.Raym. 909; 92 E.R. 107.
5 See Riches v. Bridges (1602) Cro.Eliz. 883; Yelv. 4; Game v. Hanie (1630)
Yelv. 50; Gelley v. Clerk (1606) Cro.Jac. 188; Noz, 126; Pickas v. Guide (1608)
Yelv. 128; Wheatley v. Low (1623) Cro.Jac. 668; 81 E.R. 1083; Winfield, op. cit.
95. The requirement seems to have originated in the misconception that the bailor's
action on assumpsit sounded in contract; see Davidge (1925) 41 L.Q.R. 433, 439;
Boson v. Sandford (1690) 1 Shower 101.
6 92 E.R. 107, at pp. 113, 114; " And so a bare being trusted with another man's
goods must be taken to be a sufficient consideration: if the bailee once enter upon
the trust, and take the goods into his possession." Cf. Gould J. at p. 107; Powell
J. at p. 108.
7 Holdsworth, History of English Law, Vol. III, 449-450; cf. Davidge, loc. cit.;
" But the true reason for all this talk about consideration for gratuitous bailment
seems to be forgetfulness of the fact that assumpsit was in origin an action of tort,
and will still sometimes lie for one."
8 Mytton v. Cock (1738) 2 Strange 1100; 93 E.R. 1057; Whitehead v. Greetham
(1825) 2 Bing. 464; 130 E.R. 385; Beauchamp v. Powley (1831) 1 M. & Rob. 38;
174 E.R. 14; cf. Doorman v. Jenkins (1834) 2 A. & E. 256; 111 E.R. 99 where
the point was not contested; by this time gratuitous bailees appear to have con-
ceded liability, but only for " gross " negligence. Commonwealth cases purporting to
discern consideration under a gratuitous bailment include Wills v. Brown (1912) 3
O.W.N. 580; 1 D.L.R. 388; Roufos v. Brewster and Brewster (1971) 2 S.A.S.R.
218; Chapman v. Robinson (1969) 71 W.W.R. 515.
9 (1858) 8 E. & B. 1034; 120 E.R. 385. Cf. Banbury v. The Bank of Montreal
[1918] A.C. 626, 657, where Lord Finlay advanced the tentative idea that it con-
sisted in the confidence reposed in the bailee.

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566 International and Comparative Law Quarterly [VOL. 24

explain the duties of the gratuitous lender; "By the necessarily

implied purpose of the loan a duty is contracted towards the borrower
not to conceal from him those defects known to the lender which may
make the loan perilous or unprofitable to him." 10 In Bainbridge v.
Firmstone 11 the court elaborated slightly upon the reasons behind
the contractual interpretation of a gratuitous borrower's duty; "The
defendant had some reason for wishing to weigh the boilers, and he
could do so only by obtaining permission from the plaintiff, which he
did obtain by promising to return them in good condition." 12But
such a rationalisation would hardly apply to the gratuitous depositee
who undertakes custody of the goods solely as a favour to the owner.'"
It might have been expected that later decisions would explode the
myth and deny forever the identification of gratuitous bailments as
a manifestation of the implied contract. To some extent, in England,
this has occurred. In Morris v. C. W. Martin & Sons Ltd."4
Diplock L.J. remarked obiter that neither gratuitous bailment (wh
is unrewarded but consensual) nor bailment by finding (which i
neither) evince a contractual relationship; but this was simply t
illustrate that a bailment does not require the parties to be in contrac
and not as a means of rationalising their respective duties. On t
other hand, we have the recent, albeit tacit, authority of Lord Wilber
force that gratuitous bailments are one of that class of everyday con-
tracts which the modern law submits to " a practical approach, oft
at the cost of forcing the facts to fit uneasily into the marked slots
offer, acceptance and consideration." 15
The contractual personality of gratuitous bailment has now be
vehemently discountenanced by the Supreme Court of New Zealan
In Walker v. Watson 16 the owner of an M.G. sports-car lent it
two inebriated girls, insisting that only the less inebriated of th
should drive. The car was found several hours later embedded in a
wall and the owner sued the appointed driver for the resultant
damage. Foreseeing a possible defence of contributory negligence or
volenti non fit injuria, he formulated his action in contract alleging a
breach of the terms of the bailment. The magistrate accepted this
contention and went on to hold that the tortious defences could not,
in view of the form of the action, be sustained.
This decision was reversed on appeal. Mahon J., held that the court
must look behind the formalities of pleading to the real factual cir-
cumstances of the case. These clearly established no more than a
simple action in negligence and the respondent could not seek to
disguise its character by clothing it in the accoutrements of contract.
This, however, is a case of gratuitous bailment. There was no element of
contract present. No consideration moved from the appellant when she
took possession of the car with the consent of the respondent. The only
duties which arose in consequence of the bailment were the ordinary

10 Ibid. at pp. 1051-1052; 391. Cf. McCarthy v. Young (1861) 6 H. & N. 329;
158 E.R. 136.
11 (1838) 8 A. & E. 743; 112 E.R. 1019; and see Hart v. Miles (1858) 4 C.B.N.S.
371. 12 112 E.R. 1019, at p. 1020, per Denman C.J.
13 See (1966) 5 Sydney Law Review, 239, 243 (Alice Ehr-Soon Tay).
14 [1966] 1 Q.B. 716, at pp. 731-732.
15 New Zealand Shipping Co. Ltd. v. A. M. Satterthwaite & Co. Ltd. [19741 1
All E.R. 1015, at p. 1020. 16 [1974] 2 N.Z.L.R. 175.

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 JULY 1975] Gratuitous Bailment-Contract or Tort? 567

duties which the law imposes as incidents of that special relationship.

There were no contractual terms super-added. The appellant assumed th
ordinary duty of a bailee to take care of the chattel entrusted to her
custody. Any action for breach of that duty lay in tort, not in contract.17

Accordingly, the appellant's defence succeeded. This was not the first
occasion on which an Australasian court has eschewed the equation
of gratuitous bailments with contract. A similar view had been reached
fourteen years earlier by the Full Supreme Court of New South Wales
in Thomas v. High,s1 where it was held that the bailor's action for
the return of certain moneys was essentially one in conversion; since
this necessarily disclosed an allegation of larceny against the bailee
(which a simple action on the bailment would not have done) the
defendant was entitled to have the action stayed until prosecuted for
felony. Once again, Ferguson J. instanced the lack of consideration 19
and the court declared that the gratuitous bailment was " in no sense
contractual." Both here and in the later decision in Walker v. Watson
the courts cited with approval the opinion of Paton that such bail-
ments " have nothing to do with contract at all." 20
There can be little doubt that this approach is preferable to the twin
myths of consideration and contract that have for so long been en-
grafted upon the gratuitous bailment. It is in keeping with other
developments in the field of bailment generally. Thus, for example,
it is commonly believed that the gratuitous lender may no longer
shelter under his narrow contractual duty to reveal only those defects
known to him, but is now liable in negligence for the defective state of
his chattel.21 An action on the bailment (whether gratuitous or other-
wise) is an action in tort to the purposes of the County Courts Acts 22
and counts as such for the limitation of actions.23 The machinery of
bailment in action is essentially that of the law of tort.
On the other hand, it should be recalled that bailment is an
independent concept whose attributes are no more wholly those of
17 Ibid. at p. 178. Quaere, however, whether the pleadings did not over-simplify
the issue: (i) because it may still be that the borrower owes a duty to guard against
even slight negligence (see infra) to which the present plaintiff may not necessarily
have consented; (ii) because the duty which a bailee owes to a bailor may in any
event be qualified ab initio by the degree of care the bailor could reasonably have
expected; see, for instance, Jones, An Essay on the Law of Bailments (1781) p. 65;
this objective adjustment of the bailor's right to sue may be independent of the
doctrine volenti non fit injuria, in that it defines the bailee's duty rather than miti-
gates the effect of its breach; (iii) because the judge seems to have assumed that
under a gratuitous bailment the burden of proof is on the bailor (sed quaere); cf.
Dalgety & Co. Ltd. v. Warden [1954] Q.S.R. 251; (1963) 79 L.Q.R. 19. This point
was in fact immaterial to the final result.
18 [1960] S.R.(N.S.W.) 401; 76 W.N. 641.
19 Ibid. at pp. 407, 645-646.
20 Bailment in the Common Law (1952) p. 40.
21 Griffiths v. Arch Engineering Ltd. [1968] 3 All E.R. 217, 220; Campbell v.
O'Donnell [1967] I.R. 226; (1950) 66 L.Q.R. 39 (N. S. Marsh). However, there
has been no direct authority unequivocally favouring the negligence rule. The
standard of care may theoretically remain at the level set by the courts in Blake-
more v. Bristol and Exeter Railway Co., McCarthy v. Young (supra, n. 9 & 10)
and Coughlin v. Gillison [1899] 1 Q.B. 145; cf. Sheridan v. Board of Land and
Works (1883) 9 V.L.R. (Law) 421, 423; Lettich v. Ocvirk [1968] I.O.R. 161;
McTague v. Inland Lines Ltd. (1915) 80 W.N. 183; Oliver v. Saddler & Co. Ltd.
[1929] A. C. 584; Jones v. Barclay's Bank Ltd. [1949] W.N. 266.
22 Turner v. Stallibrass [1898] 1 Q.B. 56.
23 Chesworth v. Farrar [1967] 1 Q.B. 407.

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568 International and Comparative Law Quarterly [VoL. 24

tort than they are those of the law of contract. In this regard, a number
of observations might be made. First, the elements which render a
bailment non-gratuitous are not necessarily those which would, in a
strictly contractual setting, constitute good consideration. If one
examines these factors carefully it will be found that they frequently
depend upon a casual (and often indirect) benefit to the allegedly
gratuitous obligee rather than an advantage that has been bargained
for, and by reference to which the obligation has been assumed.24 The
reason is that bailments, although partaking of contract and although
usually created in that way, are neither dependent upon contract for
their efficacy nor related to the traditional elements of contractual
enforceability in the degrees or ratios of liability they impose. Con-
sideration in contract and non-gratuitousness in bailment are essen-
tially different concepts with fundamentally different effects. Absence
of the former makes a contract wholly unenforceable-in fact, a non-
contract. Absence of reward under a bailment does not free either
party wholly from his obligations, nor does it destroy the quality of
their relationship as bailor and bailee; it merely (if at all) adjusts
and alters their respective duties, and even then usually only in the
case of the bailee. Of course, in the preponderance of cases the bailee's
reward will also be the consideration he receives under the contract.
But if one accepts that bailment is not wholly dependent on contract
it should follow that reward and consideration cannot for all purposes
be assimilated. Thus, one may theoretically have a non-gratuitous
bailment which does not disclose a contract between the parties.25 In
this event, the nature of the obligation should be carefully examined
before classifying it as either tortious or contractual; the truth may be
that it is partially both but in its entirety more than either.
Secondly, it is still tenable that gratuitous bailments differ inter se in
the obligations they impose. The free warehouseman, it is said, owes
a lighter duty than the non-paying borrower, for the liability of the
former depends upon gross negligence whereas that of the latter
depends upon the slightest degree of carelessness.26 Here again it is
the element of benefit that predominates and benefit (like reward)
may not be the same as consideration. But this does not mean that, in
24 See, for instance, the opinion of Chapman J. in Grifiths v. Arch Engineering
Ltd. [1968] 3 All E.R. 217, 220, where in a situation involving the regular inter-
change of tools amongst workmates, he thought that " the mutual prosecution of
the common work " would render such a transfer (even assuming it to produce a
bailment) non-gratuitous. A similar view may be detected in the dictum of Higin-
botham J. in Sheridan v. The Board of Land and Works (1883) 9 V.L.R. (Law)
421, at pp. 431-432; cf. Palmer v. Toronto Medical Arts Building Ltd. (1960) 21
D.L.R. (2d) 181, at p. 189; Cheshire and Fifoot, Law of Contract (8th edn.), p. 75.
In Roufos v. Brewster and Brewster [1971] 2 S.A.S.R. 218 at p. 223, Bray C.J.
appeared to equate consideration with reward; however, in the instant case the two
were synonymous.
25 An obvious example being the sub-bailment, as in Morris v. C. W. Martin &
Sons Ltd. [1966] 1 Q.B. 716; Gilchrist Watt & Sanderson Pty. Ltd. v. York Pro-
ducts Pty. Ltd. [1970] 3 All E.R. 825; or the quasi-bailment, as in Lee Cooper Ltd.
v. C. H. Jeakins Ltd. [1965] 1 All E.R. 280 and (semble) Hobbs v. Petersham
Transport Co. Pty. Ltd. [1971] A.L.J.R. 356. Cf. Carnegie (1967), 3 Adelaide Law
Review 7, 14-15.
26 As to the gratuitous depositee, see (inter alia) Doorman v. Jenkins (1834) 2
A. & E. 266; 111 E.R. 99; Giblin v. McMullen (1868) L.R. 2 C.P.; Turner v.
Merry Lees (1892) 8 T.L.R. 695; Munn v. Wakelin (1944) 17 M.P.R. 447; Leinkeit
v. Ebert (1947) Q.S.R. 126; cf. Houghland v. R. R. Low (Luxury Coaches) Ltd.

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JULY 1975] Gratuitous Bailment--Contract or Tort? 569

those cases where consideration is lacking, the bailee's liability is

purely and conventionally tortious. If "gross" and "slight" negli-
gence be still acceptable and coherent calibrations of liability 27 it is
clear that the defendant in a non-possessory negligence situation is
subjected to neither of these gradations. The cases, in other words,
differ and it may be doubted whether the general assimilation of
gratuitous bailments to the simple rules of tortious liability does full
justice to the varied allotment of benefit and duty which these
bailments are traditionally assumed to impose.
It has been said that consideration, and thus the contractual
relationship, is easier to discern in the case of the gratuitous borrower
than in that of the gratuitous depositee.28 The borrower may be
assumed to borrow for a reason and fulfilment of this reason is benefit
enough to make him a contracting party.29 Unfortunately, this analysis
works only in relation to the bailee and not in relation to his dis-
possessed counterpart, the bailor. It is difficult to see what benefit the
lender derives from such an arrangement unless it be, as occasionally
suggested, the benefit of the bailee's implied promise to safeguard and
return the chattel. That this essentially circular counterfeit is no
longer acceptable as good consideration may be perceived in the fact
that the lender's duty in respect of defective chattels is now assumed to
lie in negligence and not within the lower levels of disclosure of known
defects once indicated by the courts.3" In once sense, this earlier duty
may be regarded as the lender's benefit under a contract of gratuitous
loan; in return for giving up his chattel gratuitously, he was allowed
to contract-out of all but the most fraudulent kinds of liability.
Historically, this may be a gross simplification but the point is that,
impliedly, it can no longer be done. The lender may stipulate for such
an advantage and, in theory, get away with it, for there need be no
objection to a contract in which one party's benefit consists solely of
an exclusion clause which relates to something he is not bound, in
any event, to do.3' But the courts will no longer imply such an under-
taking for him. The reason may be that it casts his liability no longer
in contract but in tort.
Thirdly, however, as Winfield has shown, it is possible to
differentiate between an action for breach of bailment and an action
in tort.32 Bailment rarely, if at all, comes into being without an agree-
ment whereas tortious liability is in no way thus dependent. In tort,
the duty is owed towards the world at large, while the bailee's duty is
primarily, if not exclusively, towards his bailor; and vice-versa. Other

[1962] 1 Q.B. 694; (1963) 79 L.Q.R. 19. As to the borrower, see Coggs v. Bernard
(1703) 2 Ld. Raym. 909; 92 E.R. 107; Desjardins v. Theriault (1970) 3 N.B.R. (2d)
260; Jenkins v. Smith (1969) 6 D.L.R. (3d) 309.
27 Despite the opprobrium generated in such cases as Wilson v. Brett (1843) 11
M. & W. 113; Grill v. General Iron Screw Collier Co. (1866) L.R. 1 C.P. 602 and
Houghland v. R. R. Low (Luxury Coaches) Ltd. (supra) the scale still finds accep-
tance in modem Commonwealth decisions; see the preceding note.
28 Carnegie (1966) 3 Adelaide Law Review 8; Treitel, Law of Contract (3rd edn.)
29 Bainbridge v. Firmstone (1838) 8 A. & E. 743; 112 E.R. 1019.
30 See n. 21, ante.
31 Cf. the observations of Lord Simon of Glaisdale in New Zealand Shipping
Co. Ltd. v. A. N. Satterthwaite & Co. Ltd. [1974] 1 All E.R. 1015 at pp. 1029-1030;
discussed in [1974] J.B.L. 101 at pp. 112-113.
32 Province of the Law of Tort (1931) at pp. 99-100.

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570 International and Comparative Law Quarterly [VOL. 24

differences might tentatively be proposed. An exclusion clause may

run on a bailment although the parties are not contractually related 33
and, it seems, irrespective of the volenti doctrine.34 The bailee's burden
of proof, although often equated with res ipsa loquitur, may be
distinguishable from it in both rationale and effect; it may even be
possible to have the two doctrines operating in reverse direction within
one fact-situation.35 The fact of a bailment may, irrespective of express
contract, engender higher duties on the bailor than those imposed
upon him by the law of tort.3" All these are essentially speculative
and the jurist must beware of being misled by the regular assertions
that bailment is sui generis 31 into seeing distinctions or idiosyncrasies

33 This theory is implicit in the House of Lords decision in Elder, Dempster &
Co. Ltd. v. Paterson Zochonis & Co. Ltd. [1924] A.C. 522 and in the later rationa-
lisation of that case in Midland Silicones Ltd. v. Scruttons Ltd. [1962] A.C. 446;
similarly, in Wilson v. Darling Island Stevedoring & Lighterage Co. Ltd. (1956) 95
C.L.R. 43; [1956] 1 Lloyd's Rep. 346. It received a more specific articulation from
Lord Denning M.R. in Morris v. C. W. Martin & Sons Ltd. [1966] 1 Q.B. 716 at
pp. 729-730 (cf. Diplock L.J. at p. 731; Salmon L.J. at p. 741); and from Browne
J. in Moukataff v. B.O.A.C. Ltd. [1967] 1 Lloyd's Rep. 396, 416-418. In no decision
to date has it been directly applied; an opportunity to plead it was apparently lost
in Buchanan & Co. Ltd. v. Hay's Transport Services Ltd. [1972] 2 Lloyd's Rep. 535.
34 The two principles appear to have been bracketed together by the majority of
the Privy Council in the Satterthwaite case [1974] 1 All E.R. 1015 at p. 1021; cf.
Lord Simon of Glaisdale at p. 1033, and Beattie J. in the New Zealand Commercial
Court; [1971] 2 Lloyd's Rep. 399 at p. 407; Lord Denning in Midland Silicones
Ltd. v. Scruttons Ltd. [1962] A.C. 446 at p. 488; F. M. B. Reynolds (1972) 88
L.Q.R. 179 at p. 183; Rose [1975] Anglo-American Law Review 7, 28-32. In fact,
the transmissibility of exemption clauses on a sub-bailment may be attributable to
a separate principle, resembling the passage of covenants with land and rooted in
the bailee's possessory interest; cf. Diplock, J. in Port Line Ltd. v. Ben Line
Steamers Ltd. [1958] 1 All E.R. 787, 796; Treitel, Law of Contract (3rd ed.) 554.
Neither the principle nor its juristic rationale has yet been fully explored.
35 For instance, in an accident involving a hired carriage in which the vehicle
is damaged and the hirer injured, the onus may be on the owner to prove that
the injury did not result from breach of his implied warranty of reasonable fitness
and on the hirer to prove that the damage was not occasioned by any default in
his discharge of the duties of a bailee; cf. in this respect Hyman v. Nye (1881) 6
Q.B.D. 685-arguably not a case of hire at all, but on a point immaterial to the
comparison--and Gremley v. Stubbs (1908) N.B.R. 21; 7 E.L.R. 33; and see Lud-
gate v. Lovett [1969] 1 W.L.R. 1016. A similar diversity might arise with regard to
warehoused goods which self-destruct and damage the premises. On the bailee's
burden of proof generally, see the recent decisions of the Australian High Court in
Hobbs v. Petersham Transport Pty. Ltd. [1971] 45 A.L.J.R. 356 and the Canadian
Supreme Court in National Trust Co. Ltd. v. Wong Aviation Ltd. (1969) 3 D.L.R.
(3d) 55. In both of these cases and in Fankhauser v. Mark Dykes Pty. Ltd. [1960]
V.R. 376, there was clear recognition that the two doctrines are distinguishable in
effect, at least in a jurisdiction which exonerates a defendant to a plea of res ipsa
loquitur who adduces a convincing alternative explanation. In English law this
answer to a plea of res ipsa loquitur would appear insufficient; nevertheless, such
a plea still demands that at the end of the day negligence be established, while in
bailment cases the question may remain open, and still the case will go against the
defendant. It may be possible to fail on a plea of res ipsa loquitur and yet succeed
upon the bailee's inability to discharge his peculiar burden of proof.
36 For instance, where a chattel is bailed for use and there is reward but no con-
tract; the law may nevertheless imply a warranty of fitness against the bailor. Cf.
Roufos v. Brewster and Brewster [1971] S.A.S.R. 218, where the situation was
potentially of the sort described but the point did not fall to be considered.
37 Among others, by Lord Denning M.R. in Midland Silicones Ltd. v. Scrutton
Ltd. [1962] A.C. 446 at p. 489 and in Building and Civil Engineering Holidays
Scheme Management Ltd. v. Post Office [1966] 1 Q.B. 247 at p. 261: and by
Browne J. in Moukataff v. B.O.A.C. Ltd. [1961] 1 Lloyd's Rep. 396 at p. 409.
Possession is generally regarded as the distinguishing feature.

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 JULY 1975] Gratuitous Bailment-Contract or Tort? 571

that do not really exist. Nevertheless, as Winfield has pointed out,3s

to assimilate the action on the bailment totally to that in tort is to
concentrate unduly upon the dynamic side of bailment, the machinery
of its enforcement, and to neglect its static dimension, its creation and
forms. In both respects, tort pure and simple cannot provide the
whole answer and needs to be supplemented, if not wholly supplanted,
by something more eccentric and elusive.
Not all Australasian courts have shown themselves willing to
abandon the conception of gratuitous bailment as a species of implied
contract. In Roufos v. Brewster and Brewster,"9 Bray C.J., showed
himself prepared to swim against the mainstream of Australasian
authority and to support the contract analysis. Although speaking
obiter and declining to discuss the matter at length, he professed him-
self attracted by the older opinion as stated by Holt C.J. in Coggs v.
Bernard 4o and gave several reasons for this preference.
. . where all the indicia from the point of view of abstract jurisprudence
of an agreement in fact between competent parties are present, should the
common law refrain from calling the transaction a contract simply because
of difficulties caused by the doctrine of consideration? Absence of con-
sideration may mean that a purely executory agreement for a gratuitous
bailment is not an enforceable contract in the eyes of the law; but where
the res is handed over to the bailee I should have thought that that was a
sufficient consideration, even in the case of a gratuitous deposit or
gratuitous work on the res or gratuitous carriage. It is not, as I see it,
necessary that the detriment involved in parting with possession should
entail any economic disadvantage to the bailor, and irrelevant that in fact
he may derive some advantage from handing over the res and the bailee
none ... If a gratuitous bailment carried out in consequence of an agree-
ment in fact is not a contract, there will be difficulty in giving effect to the
conditions actually attached by the parties to the bailment. It will not
always be possible to find an action in tort appropriate to the breach of
such a contract, especially where there is no physical damage to the res.
Let us suppose A deposits documents with B for safekeeping and B agrees
to accept them gratuitously and promises not to disclose them to anyone
else. In breach of that promise he allows C to inspect them and C uses his
knowledge so gained to the financial disadvantage of A. Is it conceivable
that A would have no action against B? And what action could he have
but one for damages for breach of contract? 41

Certainly it may be said that, in England and New Zealand at least,

there is an appreciable modern propensity to mitigate the rigours of
consideration-particularly, perhaps, in the field of commercial con-
tracts.42 But it is doubtful whether all courts would be prepared to

38 Province of the Law of Tort at p. 103.

39 [1971] 2 S.A.S.R. 218.
40 (1703) 2 Ld.Raym. 909; 92 E.R. 107.
41 [1971] 2 S.A.S.R. 218 at pp. 223-224. An obvious answer might be "an
action for breach of bailment ": cf. Carnegie, loc. cit.
42 Decisions illustrative of the trend may be thought to exist in Woodhouse A.C.
Israel Cocoa Ltd. S.A. v. Nigerian Produce Marketing Co. Ltd. [1972] 2 All E.R.
271, especially at p. 282 (Lord Hailsham, L.C.); New Zealand Shipping Co. Ltd.
v. A. N. Satterthwaite & Co. Ltd. [1974] 1 All E.R. 1015; and see Pilcher v. Ley-
land Motors Ltd. [1932] N.Z.L.R. 449. Professor K. C. T. Sutton, Consideration
Reconsidered (1974) at p. 161, thinks that decisions like Coggs v. Bernard and Bain-
bridge v. Firmstone may now be explicable on the ground, advanced by Ostler J.
in the Pilchrr case at pp. 466-467, that even if there be no consideration, the pro-
24 I.C.L.Q.-7

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572 International and Comparative Law Quarterly [VOL. 24

go as far as Bray C.J., and even more doubtful whether the most
apt method of accommodating bailments to modern circumstances is
to weaken the doctrine of consideration. Indeed, much of what Bray
C.J. said can be construed as an attack on that doctrine generally. The
force of his example might apply equally in a case where no possession
passed from promisee to promisor; for instance, where A gets B to
witness A's will on condition that B does not reveal its contents to
anybody. Moreover, to enchain gratuitous bailments to a fiction (how-
ever generous) of contract, via consideration, could prove constrictive
as well as liberative. It might raise difficulties with fortuitous reward
and might subject the concept to the unnecessary limitations of the
doctrine of privity. Already we can see the artificiality that a straight
treatment of such bailments as contracts can produce; see, for instance,
the unnecessarily laboured Canadian decision in Chapman v.
Robinson.43 It would be unfortunate if the long and eventually
successful struggle to emancipate bailment from the rules of contract
were to culminate, from another angle, in its ultimate re-absorption.
Equally unfortunate would be the alternative of driving bailment
entirely into the arms of tort. There is a middle way, and that is to
treat bailment of all kinds as a separate and independent legal entity;
to extract its rules and peculiarities untrammelled by false equations
and superficial resemblances to other concepts. Only then can there
be not only an " interesting and fruitful return to the original founda-
tions from which the law of bailment took its departure " 4 but an
original and versatile endeavour to place bailment in its proper posi-
tion in the modern field of obligations and to assess both its perimeter
and its content.
N. E. PALMER

THE PREPARATION OF LEGISLATION IN THE

UNITED KINGDOM

A COMMITTEE was appointed in May 1973, under the cha

of the Rt. Hon. Sir David Renton, Q.c., M.P., with the fo
terms of reference:
With a view to achieving greater simplicity and clarity in statute law, to
review the form in which public Bills are drafted, excluding consideration
of matters relating to policy formulation and the legislative programme; to
consider any consequential implications for parliamentary procedure; and
to make recommendations.

The report of the Renton Committee was published in May of

this year.1 No inquiry of this kind had taken place for a hundred
years, the last being that held by a Select Committee of the House
of Commons in 1875. After considering the historical background
misor's promise became a contract "by virtue of law " on the defendant's having
commenced to perform it. This is closely similar to the reasoning of Powell J. in
Coggs v. Bernard (1703) 92 E.R. 107 at p. 108.
43 (1969) 71 W.W.R. 515 (Atla.).
44 Advocated by Alice Erh-Soon Tay in (1966) 5 Sydney Law Review 239 at p.
240.
1 The Preparation of Legislation: Report of a Committee appointed by the Lord
President of the Council. Cmnd. 6053: London, H.M.S.O. ?2.45.

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