BAILMENT: LIABILITY OF STATE
Chapter IX of The Indian Contract Act contains the section relevant to bailment.
According to section 148 of the Indian Contract Act, 1872
"A '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 off according to the directions of the person delivering them. The person delivering the goods is called the 'bailor'. The person to whom they are delivered is called the 'bailee'.
'That is , if a person is already in possession of the goods of another contracts to hold them as a bailee, he thereby becomes the bailee, and the owner becomes the bailor of such goods although they may not have been delivered by way of bailment' .
Bailment is a technical term of Common Law, though etymologically it might mean any kind of handling over. It involves change of possession. One who has custody without possession, like a servant, or a guest using his host's goods, is not a bailee. But, constructive delivery will create the relation of bailor and the bailee as well as actual.
Pollock and Wright defines bailment as- " Bailment is a relationship sui generis and unless it is sought to increase or diminish the burden imposed upon the bailee by the very fact of bailment, it is not necessary to incorporate it into the law of contract and to prove a
consideration" . And this very definition of bailment was used by the Supreme Court of India in the case of Gujarat v. Menon Mohammad .
Therefore, the following characteristics of bailment can said out to be the essentials:
1. which consists in the delivery of goods;
2. for some purpose;
3. upon a contract;
4. that there shall, when the ...
... middle of paper ...
...of violation of fundamental rights the defense of sovereign immunity cannot be accepted. Therefore, the view as to liability of the state changed in both ways that
• the sovereign immunity cannot be plead in case of violation of fundamental rights and the state is bound by the duties of a bailee in such cases where if an ordinary person is put into the shoes of the state would have same liabilities and duties as of a bailee.
• the state is bound as a bailee in such cases even in the absence of contract for such a purpose. In case where the authorities have acted on mere suspicion and have seized the goods according to the procedure established under criminal procedure code. Then until the final decision of the court is declared the authorities have to act as a bailee of goods and the burden of proof is upon bailee to show that he has exercised reasonable care.