Elements of bailment
To constitute a bailment the following elements must exist:
1. There must be a contract: A bailment is created by an agreement between the bailor and bailee. Such agreement may be express or implied by the conduct of the parties. Again it may be implied by law as in the case of a finder of goods.
2. Delivery actual or constructive: A bailment necessarily involves delivery of goods by bailor to bailee. The bailment involves change of possession and contract. Mere custody of goods without possession does not create relation of a bailor and bailee e.g. a servant in Possession of his master’s goods or a guest using his hoste’s goods is not a bailee.
Delivery may be actual or constructive. Actual delivery be made by handing over the goods to the bailee. Constructive delivery or symbolic delivery may be made by doing something which has the effect of putting the goods in the possession of the intended bailee or of any person authorised to hold them on his behalf, Section 149.
3. Delivery for specific purpose: The delivery of goods by the bailor to bailee must be for a specific purpose. Delivery in any other manner does not create bailment.
4. Return in specie: The delivery is on the condition that as soon as the purpose is achieved the goods shall be returned in specie either in their original form or in an altered form or in an improved form. Alternatively they shall be disposed of according to the directions of the bailor.
5. Bailment must be of goods: Goods means every kind of movable property other than money and actionable claim. In a bailment it is only the possession that passes from the owner to the other person and not the ownership. Thus where goods are transferred by the owner to another for a price, it is a sale and not a bailment. Likewise, where money is deposited with a bank, there is no bailment but a relationship of debtor and creditor is created!