‘Smith on Newman on Bailments’

“Chris Newman has a new draft paper on SSRN on bailments (‘Bailment and the Property/Contract Interface’). The paper is provocative (yes, that is possible in a paper on bailments!) and deeply insightful. Newman argues that much of the confusion about bailment contracts, and especially strict liability for deviation from such contracts, stems from a lack of understanding of which baseline is operative in various cases. The article provides compelling reasons to think that the property baseline governs more than people usually think – and should do so. Like a license (a subject of Newman’s previous work), a bailment is a legal relation that can be created or shaped by contract, but it should not be identified with the contract. Indeed, in involuntary bailments (most prominently with finders), there is no contract at all …” (more)

[Henry Smith, New Private Law, 25 February]

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