Dip Jyoti Chakraborty

February 24

Duties of
Bailee

2014

There is uniform standard of care as provided in Ss.151-152.The object

of bailee also shows in the maxim of Res Ipsa Loquitor.

DUTY OF CARE OF THE BAILEE

(A COMPREHENSIVE STUDY OF THE DOCTRINE OF REASONABLE CARE IN COMMON LAW)
[SS.151-152 OF INDIAN CONTRACT ACT, 1872]

DEFINITION
Duty of reasonable care[Ss.151-152]
Section 151 lays down this duty in the following terms: Care to be taken by the
bailee(S.151).--- 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 and value as the goods bailed.

UNIFORM STANDARD OF CARE

The section lays down a uniform standard of care for all cases of Bailment.1 Originally in
English law liability in Bailment was absolute. Bailment is a concept older than contract
itself. It means delivery of goods by bailor to bailee for a definite purpose in condition of
their return or disposal, when purpose is accomplished.2 It is not always necessary that
bailment be enforced through the way of a contract only. It is a sue generis relationship.3
When the intention of the parties was to deal the bailment as a contract only then the contract
act comes into play. Bailment may also be voluntary or involuntary. Possession is a central
point to bailment; when the bailee receives the possession of the goods, it subjects him to
certain obligations such as taking care of the goods4, not to make wrongful use of the goods5,
to return bailed goods6, etc. Out of these duties, taking care of goods is arguably the most
important responsibility of the bailee. Section 151 and Section 152 of the I.C Act;1872 deal
with the above mentioned duty of the bailee. But the standard of duty of care mentioned in
these sections has always been a matter of debate in the courts. Man of ordinary
prudence7 is a very subjective concept. This project delves into the nuances of reasonable
care, how courts have interpreted it over years in different landmark cases, the burden of
proof and if a bailee can exempt himself from any liability by means of a special contract. It
was no excuse for the bailee to say that the damage or failure to return was due to no fault of
his own; he was liable in any case.8

Willson v Brett, (1843) 11 M&W, 113

Anirudh Wadhwa, Mulla: The Indian Contract Act (13th edn, Butterworths, 2011) 1921.
3
Per Shelat J. in State of Bombay v. Memon Mahomed Haji Hasam, 1967 AIR 1885.
4
The Indian Contract Act, 1872, 151.
5
Ibid 154.
6
Ibid 159 and 160.
7
The Indian Contract Act, 1872 151. Note: Care to be taken by bailee. 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, quantity and value as the goods bailed.
8
See C.V Davidge, Baiment, (1925) 41 LQR 433, 436
2

Absoluteness of the Doctrine though not exhaustive

Originally in English Law liability in bailment was absolute.9 After a period of time, the
English law differentiated the duty of care of a bailee who did the safekeeping of goods for
consideration and a gratuitous bailee10. In Coggs v. Bernard11, a distinction was made
between a mandate, where the duty was to use a reasonable care, and a deposit, where there
was no liability except for gross negligence12. However, English law moved away from this
distinction with the ruling in Morris v. C.W. Martin & Sons Ltd.13 and in Houghland v. R.R.
Low (Luxury Coaches) Ltd,14 and Martin v London County Council15 which stated that every
bailee is to take reasonable care and the standard of care is the standard demanded by the
circumstances of each particular case respectively. Under ICA, Section 15116 and 15217 treat
all the bailees as same and require each one of them to use the same degree of care on the
goods as any ordinary prudent person would do. The duty of care of the bailee has always
been uniform, whether it was gratuitous or for reward. Under this act, the standard of care is
of an average prudent person in respect of his own goods of the same bulk and value in
similar circumstances.

Bailee when not liable for loss, of thing bailed(S.152).--The bailee in the absence of any special contract, is not responsible for the loss, destruction
or deterioration of the thing bailed, if he has taken the amount of care of it described in
Section 151. No cast-iron standard can be laid down in this proviso.1819

Measure of duty of care through case studies

The measure of care from a bailee would depend upon the facts of each case. Sometimes the
duty of care depends on the type and quality of the goods.20 It is also required to take note of
the opportunities and means that are properly and reasonably available to the bailee for
safeguarding the interests of the bailor.21 In Gour Chandra Mukherjee v. Andrew Yules Co-op
Credit Society Ltd.22, the court held that the fact that many others would have resorted to the
same measure of care cannot bring the care taken by bailee within the standard
requirements of this section23. The bailees duty of care isnt limited only till the period of
bailment. If after the expiry of bailment, the bailee doesnt want to keep the goods anymore,
he has to ask the bailee to take them away within a specified time and if the bailor doesnt
9

Southcot v Bennet, 1601 78 ER 1041

Gratuitous bailment is a kind of bailment in which there is no payment, but the bailee is still responsible.
11
(1558-1774) All ER Rep 1.
12
As cited in Anirudh Wadhwa, Mulla: The Indian Contract Act (13th edn, Buttherworths, 2011) 1921.
10
1966 QB 716 at 726, 732, 738
11
1962 1 QB 694 at 698
15
(1947) KB 628.
16
Supra note 6.
17
The Indian Contract Act, 1872 152. Note: Bailee when not liable for loss, etc., of thing bailed. The bailee, in
the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing
bailed, if he has taken the amount of care of it described in 151.
18
Shanti Lal v Tara Chand, AIR 1933 All 158. As to cost See Shiv Nath Rai v UOI.
19
Avtar Singh-Contract Law
20
Lakshmi Narain Baijinath v. Secy of State in India, AIR 1924 Cal 92.
21
Union of India v. Lakshminarain Harnarain, (1963) 13 Raj 140, AIR 1963 Raj 162.
22
AIR 1957 Mys 55.
23
Supra note 6.
10

comply then he can dispose of with the goods after serving a proper notice of the sale of the
goods to the bailor. A bailee cant escape his duty by delegating his duty24. It is also the duty
of the bailee to try and minimise the loss.25 A bailee is also liable for the negligence of his
servants acting in their course of employment about the use or custody of the goods bailed to
him26 although a contract of exemption of liability for any loss or damage caused due to the
negligence of the servants is binding on the parties and is not hit by Section 2327 of the ICA.28
In Trustees of Port Bombay v. Premier Automobiles Ltd.29, the machinery of plaintiff was
damaged because of negligence by the port trust authorities. The trust contended that it was
not responsible for the acts of its employees as they were appointed under the act and its
liability was absolved because of Section 87 of the Bombay Port Trust Act. The court held
that the authorities were not liable. In Blount v. The War Office30 the court found it hard to
believe that any reasonable man, who had valuables stored in precarious circumstances would
leave them to the tender mercies of 70 or 80 displaced persons, all rowdies, without taking
any precaution. In State of Bombay vs Memon Mahomed Haji Hasam31, the court held that
when state seized the property of some person upon the orders of Custom officer and that
order is subject to appeal and later the grounds of seizures are found to be invalid, the state
has an implied obligation to take reasonable care of the seized goods so as to enable it to be
returned in the same condition in which it was seized. The court had also held in the same
case that there can be bailment and the 'relationship of a bailor and bailee in respect of
specific property without there being an enforceable contract. In Shanti Lal v. Tara Chand
Madan Gopal32 the court held that where there are unprecedented floods in the town, as a
result of which part of the goods bailed deteriorated, other things being equal, the bailee is
not responsible for such loss, but the bailor has to suffer it. When the goods have been stolen
from the bailees custody, he should take reasonable steps to recover them and if he fails to
do so, the burden of proof is on him to show that reasonable efforts would not have been
successful.33 When bailees own goods have been stolen along with bailors it is not enough
to contend that he was taking as much care of the bailors good as he was taking of his own.34

Burden of proof in bailment

When there is any loss or damage to the goods during the period of bailment, it is itself prima
facie evidence of negligence on behalf of the bailee and burden of proof, therefore, to
disprove it lies on him.35 If he can prove that he exercised due care and in spite of that the
loss had occurred, then he would absolved of his liabilities.36 Where the machinery imported
from Liverpool had admittedly been pilfered while still in the custody of the port
24

Morris v. C.W. Martin & Sons Ltd., (1965) 2 All ER 725 (CA); Vijaya Bank v. Corpn, AIR 1991 Ker 209.
Kuchwar Lime and Stone Co. v. Dehri Rohtas Light Rly & Co. Ltd., AIR 1969 SC 193 as cited in Nilima
Bhadbhade, Pollock and Mulla: The Indian Contract and Special Relief Acts, (14th edn, Butterworths, 2012)
1905.
26
Hastmal v. Raffi Uddin, AIR 1953 Bho 5; Secy of State v. Ramdhan Das Dwarka Das Firm, AIR 1934 Cal
151.
27
The Indian Contract Act, 1872 23.
28
Central Bank of India v. Grains and Gunny Agencies, AIR 1989 MP 28.
29
1981 1 SCC 228
30
1953 1 All ER 1071
31
1967 SCR (3) 938, 1967 AIR 1885
32
AIR 1933 All 158 as cited in P C Markanda, The Law of Contract Vol.2 (1st edition, Wadhwa and Company).
33
Coldman v. Hill, 1919 1 KB 443.
34
Calcutta Credit Corpn v Prince Peter, AIR 1967 Cal 374
35
Supra note 23
36
Ibid.
25

commissioners, it was held that since it was not shown that care was taken by them, they
were obliged to make good the loss.37 In Sri Narasimhaswami Namagiri Amman and Sri
Ranganathaswami Temples38 the temple jewels went missing at a time when the defendant
was properly in custody of them as a bailee. He was held liable for the loss because it was
reasonably clear that either he was negligent in not taking the requisite amount of care,
caution or diligence or he must have misappropriated the jewels for himself.

Whether the bailee can escape liability

Sec. 15239 of I.C. Act,187 has created much debate whether a bailee can contract himself out
of the duty prescribed by Sec. 15140? The ICA doesnt explicitly prohibit contracting out of
obligations mentioned in Sec.15141. There has been contrasting judgments given regarding
exemption of the liability of the bailee with the help of a special contract. In Bombay Steam
Navigation Co v. Vasudev Baburao42 the court held that it was open to bailee to contract
himself out of the obligations imposed by Section 151 and it would be curbing liberty of him
if he is denied to do so. Court followed the same line of reasoning in State of Bank v. M/s.
Quality Bread Factory, Batala43 also. But this interpretation of Sec. 15244 defeats the purpose
of establishing minimum standard of care for the bailee. Avatar Singh in his book45 has stated
that the words in Sec. 15246 in the absence of any special contract would permit the
standard of duty of care to be revised upwards and not to be diluted and also that no one can
get a license to be negligent. Even the authors of Pollock and Mulla47 have stated that it is not
valid to exempt the bailee totally of his liability from negligence. The court in United Indian
Assurance Co Ltd v. Pooppally Coir Mills48 held that bailee cannot claim a total exemption
from the minimum standard of care by taking recourse to the provision contained in Section
121 of the Major Port Trusts Act, 1963 (protection from liability for acts done in good faith).
In Central Bank of India v. Grains and Gunny Agencies49 too, the court held that even when
bailee has contracted himself out of liability due to his own negligence, the bailee has still to
show that he took much care of the pledged goods as an ordinary prudent man. In my opinion
too, it will appear to be a superficial reading of the law if it is claimed that a bailee can get rid
of his duties by way of contract. On the conjoint reading of both Sec 15150 and 15251, it
seems clear that unless the standard of care of the bailee has been enhanced by a special

37

I.T.C. Ltd. V. Board of Trustees for the Port of Calcutta, AIR 1990 Cal 129
AIR 1962 Mad 244
39
Supra note 14
40
Supra note 6
41
Ibid
42
1928 ILR 52 Bom 37.
43
AIR 1983 P&H 224
44
Supra note 14
45
Avatar Singh, Contract and Special Relief, (10th edn, EBC) 1973.
46
Supra note 14
47
Nilima Bhadbhade, Pollock and Mulla: The Indian Contract and Special Relief Acts, (14th edn, Butterworths,
2012) 1905.
48
1994 2 Ker LT 473
49
Supra note 23
50
Supra note 6
51
Supra note 14
38

contract, he will be liable only when he fails to observe the minimum required standard of
duty of care.

CONCLUSION
We saw through this project how the concept of reasonable care evolved in the common law.
We went through different cases of varying circumstances and saw how in each of them the
courts meted out justice by interpreting the duty of care of bailee commendably. This all
strengthens the fact that reasonable care is a subjective thing. We also observed that the onus
lies on the part of bailee to disprove his negligence and prove that his acts were that of an
ordinary prudent person. And finally the jury is still out on the fact weather the standard of
care can be diminished with help of a special contract. Courts have the discretion to limit the
liability of the bailee but it is a unanimously accepted fact that liability of bailee can be
enhanced with help of a special contract.
[While drawing conclusions as to duty of care, ensure that you are able to also identify the
correctness or the incorrectness of a decision. Hence instead of merely mapping how the case
has been decided you need to also explain why the case has been decided the way it has, and
the best or the worst part about the decision]
No act is exhaustive in nature. And the definition of Section 151-152 is very broad in sense and not
collusive. As per as law peeps into it, and the ambit of Article 14152 new decisions and debate are
most welcome.

52

Pandey J.N; Constitutional Law of India