REVIEWS
| Date | 01 November 1980 |
| Published date | 01 November 1980 |
| DOI | http://doi.org/10.1111/j.1468-2230.1980.tb01617.x |
REVIEWS
BAILMENT. By
N.
E.
PALMER. [Australia:
Law
Book
Co.,
1979.
THIS
massive book is the first monograph on bailment since the publication
of
Paton’s scholarly work
Bailment
in
the Common Law
in 1952.
Mr.
Palmer,
now a Senior Lecturer in Law at the University of Manchester, has already
made his mark as
a
writer in various publications, including joint editorship
(with
Mr.
E.
L.
G. Tyler) of the fifth edition
of
Crossley Vaines on
Personal
Property
and the contribution
of
a
chapter on consumer credit to the ninth
edition of Fisher and Lightwood’s
Law
of
Mortgage.
As sole author
of
this
new work, Mr. Palmer has completed
a
task
of
truly Herculean proportion.
It is astonishing that in the closing quarter
of
the twentieth century the
law
of
bailment should still contain so many unsolved riddles and generate
so
much misunderstanding even among experienced lawyers. What is well
brought home in
Mr.
Palmer’s book is that the really difficult part of any
branch
of
law lies not in sophisticated technical points but in fundamental
conceptions.
A
treatise on bailment must perforce reach down to the very
roots
of
personal property law and somehow endeavour to encompass those
most elusive concepts, ownership and possession. This the author has done
with great scholarship and skill. After refuting the widespread heresy that
bailment depends on contract, he goes on to examine the permissible subject-
matter
of
bailment. His focus at this point is not
as
sharp
as
it might be. The
statement that
“
there can be no bailment of the rights
of
action represented
by such documents
as
cheques
.
.
.
[but] the courts have occasionally allowed
the bailor by means of an action in tort to recover not only the value of the
document as paper but its surface
or
exchange value
as
well
”
is
so
tentative
as
to be positively misleading. It is now well established in English law that
those documents which embody
a
right to money
or
goods, in the sense that
the obligor need only pay
or
deliver to the current holder
of
the document,
are to
be
treated for almost all purposes
as
the equivalent of the goods them-
selves. The right to such “documentary intangibles” (to
use
the language of
the Crowther Report) is given the same value, and is enforceable by the same
range
of
tort remedies,
as
the money
or
goods which they represent. The
categories
of
document which qualify for treatment
as
representative of the
rights they embody may be a matter of uncertainty but the principle is not.
The
discussion
of
this question by Professor Grant Gilmore in his two-volume
work
Security Interests in Personal Property
remains unsurpassed and should
surely have received
a
mention. The rest of the chapter on the nature and
elements
of
bailment is masterly. One of Mr. Palmer’s strengths
is
his
appreciation of the importance of principle and the need to devote plenty of
space to its elaboration. In this chapter there
is
a
thorough examination of
the relationship between bailment and other sources of obligation (contract,
detinue, trust) and this lays
a
sound foundation for much
of
the ensuing
analysis.
In discussing the different types
of
bailment, the author adheres fairly
closely to the classification formulated by Holt
C.J.
in
Coggs
v.
Bernard
(depositum, cornmodaturn,
etc.), whilst recognising that this is not exhaustive.
Unfortunately, both in the text and in the index
cornmodaturn
is equated with
the loan of
a
chattel, whereas the essence of loan (and that which distinguishes
it from bailment)
is
that whilst the bailee does not acquire ownership and
is
obliged to return the chattel in
specie,
the duty of the borrower is to return
only the agreed equivalent,
so
that in making the loan the lender parts with
ownership. The difference between letting and lending was emphasised over
724
1038
pp.
(incl.
index)
f44-00.1
Nov.
19801
REVIEWS
725
400 years ago by Dr. Thomas Wilson in his
Discourse
upon
Usury
but
appears to have dropped out of modern learning. Working his way systematic-
ally through the different general types of btlilment (including a most useful
chapter
on
involuntary bailment) the author moves on to a detailed dis-
cussion of contracts of carriage occupying some
230
pages and covering road,
rail, sea and air.
As
elsewhere in the book, there is
a
copious citation
of
authority drawn from many jurisdictions, with emphasis on Australian, New
Zealand and English case law. But to this reviewer the most interesting
section
of
all is that devoted
to
what the author terms “extended and con-
structive bailments,” including bailments by attornment, quasi-bailments and
sub-bailments. It was in reading what
Mr.
Palmer had to say about the last
of these (and so far as it went
his
analysis was hard to fault) that
I
identified
the one major weakness of the work of which
I
had been subconsciously
aware when browsing through the earlier chapters, namely the author’s
failure to step outside the library and look at the bailment in action.
I
refer
in particular to what has become the most important form
of
off-balance
sheet financing, the equipment lease. The omission is serious, for there are
many unresolved legal problems arising from equipment leasing upon which
the practitioner (for whom, the preface tells
us,
the book is intended as
a
guide) would welcome enlightenment. Yet with over
1,OOO
pages of text
Mr.
Palmer has performed the near miraculous feat
of
avoiding reference to
almost all of them!
For
example, to what extent should the courts recognise
the interdependence
of
the sale contract and the leasing agreement?
Is
the
lessor likely to be held liable for defects in machinery which the lessee,
drawing on his own expertise, has selected in direct negotiation with the
supplier? If the equipment
is
defective and
the
lessor assigns to the lessee his
rights of action against the supplier
(a
common practice confidently assumed
to avoid the problem of lack of contractual nexus between lessee and supplier),
can the lessee recover by way
of
damages
a
sum greater than the loss suffered
by his lessor? And
if
the lease entitles the lessor to collect rentals regardless
of
a
breakdown in the equipment, will not the lessor’s claim, assigned to the
lessee, be restricted to purely nominal damages? Again, what is the effect on
a
sub-lease of termination of the head lease?
Does
it, as on
a
lease
of
land,
bring the sublease to an end?
Or
is
a
lawful sub-lessee entitled to retain
possession as against the head lessor, and if so, for what period and on what
terms? In
a
60-page chapter devoted mainly
to
subbailment, these last
questions are not even raised, let alone answered.
This serves
to
underscore the point all too often overlooked in academic
circles, that the way to identify relevant issues in
a
living law is not to lead
the life of
a
monk
in scholastic seclusion but to go out into the world and,
like Lord Mansfield in the eighteenth century and Karl Llewellyn in the
twentieth, find out from the men of business what they are doing and why
they are doing it. (To be fair to Mr. Palmer, most of his book was written
in Tasmania, hardly the easiest spot in the world from which to garner
information
on
equipment leasing!
)
In other respects, this is
a
splendid work which establishes
Mr.
Palmer
as
a
fine scholar, original in his thinking, rigorous in his analysis and displaying
a
profound knowledge
of
the principles
of
personal property law. He is to
be congratulated on his achievement.
R.
M.
GOODE
REMEDIES
FOR
BREACH
OF
CONTRACT.
By
HUGH BEALE.
[London:
Sweet
&
Maxwell:
1980.
xxiii
and
248
pp.
Paperback:
€7.40.1
THIS
book is a pleasure. When one considers that remedies are what people
go
to law
for,
and thus should constitute one of the central concerns
of
legal
analysis, one can only regret that the area has been
so
sorely neglected, both
To continue reading
Request your trial