Lecture 3. "Possession is nine tenth of the law": Bailment Flashcards
What is a bailment?
Bailment is the relationship between a bailor and a bailee, where the bailee receives possession of a chattel from the bailor.
Who is a bailor?
The person who delivers possession of a chattel to another (the bailee).
Who is a bailee?
The person who receives possession of a chattel from the bailor.
Does bailment apply to real estate?
No, bailment only applies to personal property (personalty), not real estate (realty).
What are the two types of bailment?
Bailment at will and bailment for a fixed term.
What is a bailment at will?
A bailment with no fixed duration; the bailor can reclaim possession at any time.
What happens if a third party takes possession from a bailee in a bailment at will?
It is considered wrongful possession. The bailor has a right to recover the property.
What is a bailment for a fixed term?
A bailment where possession is transferred for a set period, and the bailor cannot reclaim possession until the term ends.
Can a bailor recover the property before the fixed term ends?
No, only after the fixed term expires.
What are the key features of possession?
Control and intent to exclude others (exclusive possession).
Is there a precise legal definition of possession?
No, possession can be physical, legal, or both.
How does possession differ from custody?
Custody involves control but not the intent to exclude others.
Example: A pizza delivery man receives a pizza to deliver. Does he have bailment?
No, he only has custody. The pizza shop retains the right of possession until delivery.
Can a bailee sue a third party for wrongful possession?
Yes, the bailee can sue for loss or damage (trespass to property).
Can a bailor sue a third party for wrongful possession in a bailment at will?
Yes, because the bailor retains ownership and the right to possession.
Can a bailor sue a third party for wrongful possession during a fixed term bailment?
No, only the bailee can sue during the fixed term.
When can the bailor recover the property in a fixed term bailment?
After the fixed term ends.
What happens if a landlord enters a bailee’s apartment during a fixed-term contract?
The landlord cannot take back possession until the contract ends.
If a bailee is not responsible for loss or damage, can they still sue a third party for damages?
Yes, a bailee can sue in tort for loss or damage even if they are not liable to the bailor.
The Winkfield Case (1902)
What is the key principle from The Winkfield case?
Possession is title against a wrongdoer.
The Winkfield Case (1902)
What happened in The Winkfield case?
The ship Mexican was struck by Winkfield while carrying mail.
The Winkfield Case (1902)
Who sued for damages in The Winkfield case?
The postmaster general, on behalf of the senders.
The Winkfield Case (1902)
Why was there an issue with the postmaster general suing?
He represented the Crown, which could not be sued.
The Winkfield Case (1902)
Why did the court allow the postmaster to sue?
He was a bailee in possession, meaning he had the right to sue for loss.
The Winkfield Case (1902)
What is the key takeaway from The Winkfield case?
A bailee in possession can recover damages, even if they are not the owner.
True or False: Possession is the same as ownership.
❌ False – You can have possession without ownership.
What is required for possession?
Control + Intent to exclude others.
If you park your car in a parking lot, is it automatically a bailment?
❌ No – it depends on whether you transferred possession.
When is parking a car a bailment?
If the parking lot takes responsibility for the car’s safekeeping.
When is parking a car a license?
If the parking lot only provides space and disclaims responsibility.
Ashby v. Tolhurst (1937)
What happened in Ashby v. Tolhurst?
➡️ The plaintiff parked his car, paid 1 shilling, and received a ticket.
➡️ The car was stolen, and the plaintiff sued the landlord.
Ashby v. Tolhurst (1937)
What did the disclaimer on the ticket say?
➡️ The parking lot did not take responsibility for loss or damage.
Ashby v. Tolhurst (1937)
What was the legal issue?
➡️ Was this a bailment or just a license?
Ashby v. Tolhurst (1937)
What was the court’s ruling?
❌ Not a bailment – No transfer of possession.
✅ License – Just permission to park.
Ashby v. Tolhurst (1937)
Why was the landlord not liable?
The ticket’s exclusion clause disclaimed responsibility.
What is the difference between a bailment and a license?
Bailment → Transfer of possession.
License → Just permission to use space, no possession transfer.
Can an exclusion clause remove liability?
✅ Yes – if properly communicated (as in Ashby v. Tolhurst).
Example: Bailment or Not?
Leaving a coat at a coat-check where they take responsibility.
✅ Bailment
Example: Bailment or Not?
Parking in an unattended lot with a disclaimer.
❌ Not Bailment
What is the essence of bailment?
The transfer of possession from a bailor to a bailee.
Can bailment exist without possession being transferred?
❌ No, possession must be transferred.
Is valet parking a bailment?
✅ Yes, it is a bailment.
Why is valet parking a bailment?
Because you give the valet your keys and control of the car, transferring possession.
What happened in Ultzen v. Nichols (1894)?
A restaurant waiter took a customer’s coat without being asked. The coat was stolen.
Was there a bailment in Ultzen v. Nichols (1894)? Why?
✅ Yes. Because the waiter took possession of the coat, even though the customer did not actively hand it over.
What happened in Deyong v. Shenburn (1946)?
An actor left his clothes in a dressing room at a theater. The clothes were stolen.
Was there a bailment in Deyong v. Shenburn (1946)? Why?
❌ No. Because the theater never took possession of the clothes.
Does bailment exist if an item is just left somewhere?
❌ No, possession must be transferred to another party.
Can someone become a bailee without asking for the item?
✅ Yes, if they take possession (Ultzen v. Nichols).
