BAILEE’S DUTY OF CARE:
EVOLUTION OF DOCTRINE OF REASONABLE CARE, LAWS AND
CONTROVERSIES.
-Deepa shree
1
ABSTRACT:
Bailment
i
has always been part of commercial contract in both, under English law and Indian
Contract Act. One of the foremost important concepts involved in the Bailment is of the duties
of the Bailee
ii
. Section 151, of The Indian Contract Act, 1872 (hereinafter ICA,1872) deals
with the objective of care to be taken by bailee.
This project will deal with the concept of duty of care of a bailee in common law in general in
comparison with Section151-152 of ICA, 1872. The major issues related to the doctrine of
‘Reasonable care’ with respect to the bailee’s duty of care, which have been discussed in this
Project, are:
1. Doctrine of standard of care for bailee and its evolution.
2. Debate between English Law and Indian law on the standard of care.
3. Bailee when not Liable and controversies regarding section 151 & 152 of ICA, 1872.
DOCTRINE OF STANDARD OF CARE FOR BAILEE AND ITS EVOLUTION.
The concept of the duty of care of bailee emerged from the idea of liability based on gross
negligence
iii
. “Under English law, liability of bailee in bailment is absolute” (Singh 2017: 680).
Hence, “when goods were robbed from a bailee who was in charge of its safe custody, he was
automatically held liable absolutely
iv
even if it is not his fault; he was liable in any case” (ibid
at). However, in Coggs v Bernard
v
, we see that the modern English Law has made a distinction
in measuring the duty of care between bailees of two types, namely, gratuitous bailee
vi
and
bailee for reward
vii
(see Bangia 2017: 61). The duty of a bailee for reward is to exercise the
same degree of care towards the safeguarding of the goods kept with him which might be
expected from a reasonable prudent man responsible for the safety of such goods (Chakraborty
1
B.A. LL. B, 3rd Semester,
Section: A
CUSB1813125029
2014: 01). “Lord Holt, in the same case
viii
said that, gratuitous bailee is liable for loss of, or
damage to, goods only if he is guilty of gross negligence” (Singh 2017: 681).
However, in more recent times, common law has adopted a more consistent benchmark of
reasonable standard of care of bailees for both types of bailment. The Court of Appeal in
Houghland v R.R. Low (Luxury Coaches Ltd)
ix
said that “the standard of care of a bailee was
that of reasonable care and was same, irrespective of the bailment being gratuitous or for
reward” (Ibid at).
Under the ICA, the duty of care for a bailee applies across the board uniformly in all cases of
bailment and it is provided for in the Section151-152 of ICA,1872.
Bailee’s duty of care under Indian Law
The concept of bailment in Indian law has derived from the common law.
According to Section151 of ICA, 1872, in all cases of bailment, the bailee is bound
to take as much care of the goods bailed to him as a man of ordinary prudence
would, under similar circumstances, take of his own goods of the same bulk, quality
