ABSTRACT
The most pernicious effect of the continued reference to the archaic category of bailment in
modern commercial law is the tendency to undermine the importance of private ordering, and in
particular the deliberate contractual structuring of many relationships which involve a transfer of
possession in tangible personal property. Over the last decade it has become clear in seminal
decisions of the higher courts that a degree of primacy should be attached to contractual
undertakings in the private law arena. This means that those obligations which arise as a matter of
law should show deference to the contractual arrangements of the parties. With respect to the tort
of negligence Henderson v Merrett Syndicates Ltd44 is a highly significant authority. It confirmed the
rehabilitation of ‘assumption of responsibility’ touchstone of liability first recognised in Hedley Byrne
& Co Ltd v Heller & Partners Ltd.45 The case recognised that investors or ‘names’ on the Lloyd’s of
London insurance market could rely upon causes of action in tort based on assumption of
responsibility against their agents, whether or not they were in a direct contractual relationship
with those agents. It is wrong to see the recognition of concurrent liability in cases where there is
a direct contractual relationship as pointing towards the primacy of tort. Lord Goff did say that ‘the
law of tort is the general law, out of which the parties can, if they wish, contract’.46 However, this
must be read as stating that the law of tort provides the basic duties where one party assumes
responsibility over the property or affairs of another. It is clear that where a direct contractual
relationship exists between the parties those tortious obligations can be limited or excluded by
contract, both explicitly and implicitly. As Lord Goff observed in Henderson v Merrett:
Indeed, the primacy of contract has been further advanced in the case of disappointed beneficiaries
where a will has not been prepared by a dilatory solicitor, or has been negligently prepared. In
White v Jones48 a solicitor’s duty to take care in preparing a will was held to involve an assumption
of responsibility extending to the intended beneficiary who would suffer harm if the solicitor’s
negligence prevented the transmission of family wealth upon death. Lord Goff, giving the principal
speech on behalf of the majority, recognised that the contract between the solicitor and the client
could affect the tortious entitlements of the intended beneficiary:
We shall see that the rehabilitation of the assumption of responsibility test provides a link between
these cases of professional negligence and modern authorities on bailment. However, for now our
concern is with the primacy of contract.
