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Lloyd's Maritime and Commercial Law Quarterly

The redundancy of bailment

Gerard McmeelGerard McMeel *

Some academic legal writers subscribe to the view that the concept of bailment contributes to the intelligibility or rationality of English personal property law. Bailment is said to straddle the domains of obligations and property. The purpose of this paper is to enquire whether English law does in fact benefit from having an over-arching concept of bailment as a tool for regulating diverse fact situations occupying a broad spectrum, embracing from one extreme the honest finder of goods to multi-million pound aircraft finance leases. The argument is that the alleged concept of bailment does more harm than good, stultifying the development of a rational law of personal property. The supposed concept of bailment is too elusive or too over-inclusive in its scope to be of any normative significance. Indeed, where legal condusions have been derived from the deployment of the concept, they usually turn out to be unsound. Furthermore, sometimes the label of bailment acts as an unnecessary straitjacket, confining principles of potentially broad application to the particular context of chattels. Another insidious tendency of the current attachment to bailment reasoning is to downplay the deliberate contractual structuring of relationships between commercial parties. Overall it will be argued that the category of bailment has no autonomous legal content which cannot be better attributed to concepts of consent, wrongdoing, unjust enrichment or property.

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