Loss occurred by the bailee’s servant.

Written by- NAMAN MISHRA

TOPIC-Loss occurred by the bailee’s servant.



Bailment is the delivery of products for some particular reason, and when that intention is over, goods are conveyed back or to be managed in a way so given by the bailor. Bailment implies and incorporates any sort of taking care of over of the products. Be that as it may, it does exclude the loan of money, except if and until, it is settled upon to convey the same sort of coins. Change of ownership, physical or valuable is primary fundamental element of bailment. “In the contract of bailment, the bailer takes the ownership, to redeliver them, or to be managed then in a way so gave by the bailor. In any case, a worker or a visitor who are utilizing their goods, are considered to have guardianship with out “ownership” so no inquiry of bailment emerges[1].

But, it is possible that a seller some time stands in the capacity of bailor, if he had contracted to have the possession of goods, after their sale, on behalf of the buyer[2]. So in order to create a contract of bailment between seller and buyer, there should be a separate contract to retain the possession of goods, even after their sale. Then the goods will remain at the risk of seller even after their sale. Where a condition in an auction provides that the moment the auction sale was declared, the loss will be at the risk] of buyer, i.e., buyer will have to take the delivery with immediate effect after the completion of the auction sale[3].

Meaning of Bailment

According to Section 148 of the Indian Contract Act:

“Bailment” is the delivery of goods by one person to another for some purpose upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the “bailor”. The person to whom the goods are delivered is called the “bailee”.

Under the Indian Contract Act, bailment consists of delivery of goods by one person to another for some purpose. Such goods are to be returned when the purpose is accomplished or they are to be disposed of according to the directions of the bailor.[4]


Where the act has been due to bailee’s servant, he would be liable if the servant‘s act is within the scope of his employment. In Morris v. CW Martin and Sons. It was said that the bailee was bound to bring reasonable care to the execution of every part of duty accepted.

Morris v. CW Martin and Sons[5]

Facts- The plaintiff took her mink stole to the defendants for cleaning. An employee received and stole the fur. The judge had held that the defendants were not liable because the theft was not committed in the course of employment.

Held- The litigants were obligated. Bailment incorporates as a component an acceptance of accountability by the bailee to protect the merchandise, in other words to take sensible consideration of the products. In a bailment for remuneration the obligation was non-delegable. The representative had changed over the hide throughout his business. In spite of the fact that the specialists were not clear, he had not committed the demonstration while ‘on his very own skip’.

Diplock LJ stated: ‘If the standard set down in Lloyd v Grace, Smith and Co[6] is applied to the realities of the current case, the respondents can’t in my view get away from risk for the transformation of the offended party’s hide by their hireling Morrissey. They acknowledged the hide as bailees for remuneration so as to clean it. They set Morrissey as their operator in their proper place to clean the hide and to assume responsibility for it at the same time. The way wherein he acted in accomplishing that work was to change over it. What he was doing, yet untrustworthily, he was doing in the degree or course of his work in the specialized feeling of that inadvisable however respected expression.

The respondents as his lords are liable for his tortious demonstration.’ and  ‘If the bailee in the current case had been a characteristic individual and had changed over the offended party’s hide by taking it himself, nobody would have contended that he was not at risk to her for its misfortune. In any case, the respondent bailees are a corporate individual.

They couldn’t play out their obligations to the offended parties to take sensible consideration of the hide and not to change over it in any case than vicariously by common people going about as their hirelings or specialists. It was one of their hirelings to whom they had depended the consideration and authority of the hide to accomplish work upon it who changed over it by taking it. For what reason would it be a good idea for them to not be vicariously subject for this break of their obligation by the vicar whom they had decided to perform it? . . ‘and’ nor are we worried about what might have been the risk of the respondents if the hide had been taken by another hireling of theirs who was not utilized by them to clean the hide or to have the consideration and authority of it. The insignificant truth that his work by the respondents allowed him the chance to take it would not get the job done. … I base my choice for this situation on the ground that the hide was taken by the very hireling whom the respondents as bailees for remuneration had utilized to deal with it and clean it.’

Salmon LJ stated: ‘The litigants are at risk for what added up to carelessness and transformation by their hireling over the span of his work’. He underscored the significance of the cheat being the worker through whom the respondents had decided to release their obligation to take sensible consideration of the hide.’ A bailee for remuneration isn’t responsible for a burglary by any of his hirelings yet just for a robbery by such of them as are deputed by him to release some piece of his obligation of taking sensible consideration. So for this situation, on the off chance that somebody utilized by the litigants in another terminal had broken in and taken the hide, the respondents would not have been at risk.

“Correspondingly on the off chance that an assistant utilized in a similar station had taken advantage of the lucky break of going into the room where the hide was kept and had taken it, the litigants would not have been at risk.’’

Lord Denning: ‘When a man has assumed responsibility for products as a bailee for remuneration, it is his obligation to take sensible consideration to guard them: and he can’t get away from that obligation by assigning it to his worker. In the event that the products are lost or harmed, while they are in his ownership, he is subject except if he can show – and the weight is on him to show – that the misfortune or harm happened with no disregard or default or unfortunate behavior of himself or of any of the hirelings to whom he assigned his obligation.’


Finder of merchandise is a piece of quasi contract or certain connection looking like to those made by an agreement. Here it would be important that discoverer of merchandise has similar standards of obligations and obligations towards the guiltless gatherings as given to the bailee. This is something which is referenced in the Indian Contract Act 1872 under section 71 which peruses as under:

An individual who discovers products having a place with another, and brings them into his authority, is dependent upon a similar duty as that of a bailee.

Since the concept of vicarious liability is a contract in itself therefore if we combine the rule of bailment and vicarious liability it becomes very clear that if damage is caused to the bailor due to the mismanagement or negligence of bailee’s servant bailee will be liable for the act of his servant.

[1] Annamalai Timber Trust Ltd. v. T.G., 305 at 308: ILR (1954): TC 208: 1954 Ker. LT 60.

[2] Explanation of Sec. 148 of Indian Contract Act.

[3] Hanutmal Bhtoria v. Dominion of India, A.I.R. 1961 Cal. 50 at 58.

[4] Section 148 of the Indian Contract Act, 1872.

[5] [1966] 1 QB 716, [1965] 3 WLR 276

[6] [1912] AC 716.

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