Private Law Theory

INTRODUCTION
Law, not discretion, decides cases. Deciding cases according to rules of law promotes certainty and consistency in decision making because like cases are treated alike. This benefits society. Equality before the law, lower transaction costs and so on are trite observations. However, if two rules function to resolve a single dispute, we encounter the problem of duplication. Where there is a duplication the description of the event that gives rise to those rules is elevated into a reason for distinguishing them. That is a problem because it is not a rational distinction. It is to resolve cases according to the language spoken. Like cases would not be treated alike. This article argues first that ‘bailment on terms’, a rule that binds consenting but non-contracting parties to terms where there is a bailment, cannot be rationally distinguished from the law of contract because it rests on the same justificatory principle for a cause of action, consent, and contract already functions to resolve those disputes …

€ (Westlaw)

David Gibbs-Kneller, ‘“A rule adumbrated”: bailment on terms and the rule of law’ (2023) 139 Law Quarterly Review (Oct) 592-614.