652Property Law

provision of services. On closer examination of the circumstances in which custody arises, however, it becomes apparent that many gratuitous custodies are prompted by commercial considerations rather than altruism, as for example when you deposit your coat in the cloakroom in a restaurant. And that, even where this is not the case, custody, whether undertaken altruistically or not, involves an assumption of responsibility for someone else’s property, which is something characteristically regulated by law. Whether this is altogether fair on bailees like Mr Bernard and Ealing London Borough Council is another matter.

In any event, the fact that the law has always imposed liabilities on gratuitous bailees demonstrates how far removed the law of bailment is from the law of contract (which as a rule does not enforce promises unless supported by consideration) and from the law of equity (which in principle does not assist donees). Furthermore, it appears that the standard of care expected from the gratuitous bailee will be determined (and may well be increased) by any undertakings he may have expressly or impliedly given as to the type or level of service he will be providing, or the circumstances in which it will be provided: this is apparent from both Coggs v. Bernard and from Mitchell, where the council’s liability arose out of its failure to keep to the undertaking that it had given to hand over the furniture where and when it said it would.

A final point to emphasise is the decisive role that possession plays here: a gratuitous bailee of goods (i.e. someone who has them in his possession) has a duty to take reasonable care of them during the bailment, but the same is not true of someone who has a degree of control over the goods which falls short of possession: see Tinsley v. Dudley [1951] 2 KB 18.

Notes and Questions 17.7

Read The Pioneer Container, KH Enterprise v. Pioneer Container [1994] 2 All ER 250, PC; Mitchell v. Ealing London Borough Council [1979] QB 1; Sutcliffe v. Chief Constable of West Yorkshire (1995) 159 JP 770; [1996] RTR 86; The Times, 5 June 1995; and AVX Ltd v. EGM Solders Ltd, The Times, 7 July 1982, either in full or as extracted at www.cambridge.org/propertylaw/, and consider the following:

1According to the Privy Council in The Pioneer Container, in what circumstances will a bailment relationship arise? If it was not created consensually, what are the terms of the relationship?

2Examine the reasons given by the Privy Council in The Pioneer Container for concluding that the shipowner could take advantage of the exclusive jurisdiction clause in its contract with the shipper. What does this tell us about the sources of the terms of a bailment relationship? Does it make sense in the factual context of this case to say that one of its terms might be (at the option of one of the parties) a term of a contract that that party entered into with a third party? Would it make sense in other factual contexts?