LLB220 Lecture Notes - Lecture 4: Res Ipsa Loquitur, Intentional Tort, Trover
Week 4 – Bailment
Chattels
Ownership and Possession
Two components of possession:
1. Animus possidendi → an intention to possess
2. Factum → physical control
• Possession is hard to define
• Possession is a legal concept – distinct from de facto control
- E.g. someone who has stolen goods has possession but not ownership and the
possession is not legal
• I.e. ownership and possession are not the same thing but are closely linked
• Legal possession, wrongful possession
• You can have ownership without possession and possession without ownership, e.g.:
- You leae oes of thigs i ou auts gaage fo the sue aut has
possession)
- Things acquired on hire-purchase
- “oeoe stealig soethig doest hae oeship
• A person in lawful possession of an item may have enforceable rights against others
ee if the aet the oe
• You can own something but not have lawful possession → fragmented propriety
rights e.g. hire-purchase
Chapman Bros v Verco Bros and Co Ltd (1933) 49 CLR 306
Facts
Farmers delivered bags of wheat, delivered in unidentified bags and identical to those which other farmers
delivered wheat to company. Terms of transaction required company to buy and pay for wheat or failing request,
return an equal quantity of what of the same type – no obligation to return identical bags.
Judgment
• The question was whether this was a sale of goods contract in terms of the ownership of the bags. The
court held it to be an agreement of sale within Section 2 (1) of Cap 31
• One of the difficulties is that where goods are given to the buyer before the buyer has paid for those
goods, where this happens, then we say that he is a buyer in possession because the seller has agreed to
transfer the property.
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Types of Possessory Interests
Actual Possession
• Requires:
- De facto control of the chattel (physical control)
- Intention to possess
• A fisherman could not be sued by another fisherman for interference of possession
of the fish as although their net was partially enclosed around the fish, they did not
have control of them (Young v Hichens)
Constructive possession
• Where there is legal possession but no personal de facto control
• Possessor can sue if the chattel is wrongfully dealt or interfered with
• Occurs in narrow circumstances, such as where an agent takes possession for the
principal in a transaction
• E.g. commercial transaction, the principal is acting through an agent. The agent has
de facto control
Right to immediate possession
• Arises where thee is at ill ailet. The oe of the hattels a ask fo thei
return at any time
• Also arises at the end of a bailment for a specific term. The bailee continues to have
de facto control, but owner is entitled to their return
Right to future possession (reversionary interest)
• Conclusion of the rights of a chattel that is presently entitled to someone else
• When you have lent something to someone for a specified time, you have a right to
possession when that time is up
Ownership
• Common law – it is complicated when the question of ownership arises from the
doctrine of tenure – a a peso othe tha the Co o lad?
• A person can own a chattel
• The owner will be in possession so will have all property rights, HOWEVER, where
ownership rights are fragmented the question of lesser proprietary interests of the
party alleging the wrongful act is important
• Key question → whether the owner, or any other person who was in possession at
the time of the wrongful act, had an immediate right to possession, or had a merely
reversionary interest in the chattel
Custody
• E.g. an agent/employee holding goods to the principal has custody, with legal
possession remaining in the principal
• A servant is no more than a conduit or functionary of his or her superior
• The subordinate is capable of taking possession and the principal has an immediate
right to possession
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Bailment
What is bailment?
• Varying definitions
• No universal definition of bailment that covers all possible situations
• Lord Bingham of Cornhill → it a ol e said, uite sipl, that a ailet oes
into being whenever one person is knowingly and willingly in possession of goods
that belong to anothe
- These day we recognise some situations of involuntary bailment
• Bailment has been taken to be called sui generis as a legal concept
- I essee that it is uiue, it is soethig that ist dietl elated to athig
else and has to be taken on its own terms
Types of bailment
• Bailment → delivering chattels to a person other than the owner on agreement that
they will be returned to an owner or they will be dealt with in a specific way.
- Bailor → person who owns
- Bailee → person who receives
• Possession passes from owner to person receiving goods
• Bailee has lawful possession but is not the owner
• Agreement at the core of bailment can be express or implied
Fixed term or at will
• Fixed term
- Bailee has actual possession in law
- Establishes a right to possession in the future on bailor
- There is an immediate right to possession at the end of the term
• At will
- Bailee has actual possession in law
- Bailor can demand the return of the chattel at any time. Immediate right to
possession
Types of bailment
• Involuntary bailment
- May occur when goods left behind by tenants (Robot Arenas) or misdelivery
- Minimal duties, but goods cannot be wantonly destroyed
- Disposal may be done under the Uncollected Goods Act 1995 (NSW)
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