RIX UPHOLSTERY (PVT) LTD v BIDDULPHS (PVT) LTD 2008 (2) ZLR 210 (H)

Flynote

Contract — depositum — applicability thereto of Praetorian edict relating to liability of sailors, innkeepers and stable-keepers — loss of goods deposited due to theft by employee of bailee — where onus of proving damage lies — "owner's risk" clause in contract — effect of — need forplaintiff to allege and prove gross negligence

Headnote

The plaintiff left certain of his goods in storage at the defendant's premises. He signed, but did not read, a document which stated that the defendant "shall not be responsible for any loss or damage of any nature whatsoever sustained or suffered by the customer and however and from whatever cause arising even if the customer (sic) and/or their servants and/or agents are negligent, the basis of this quotation being that work and storage will be effected entirely and solely at the customer's risk." An employee of the defendant broke into the warehouse where the plaintiff's goods were stored and stole some of the plaintiff's goods. The plaintiff issued summons against the defendant, claiming a sum representing the value of the stolen goods. The claim was based on breach of contract, on the basis that the defendant failed to return to the plaintiff certain items that had been left with it for storage. No fault was pleaded in the papers and no cause of action of which fault is an element was raised.

Held, that a plaintiff who has suffered loss as a result of the alleged negligent performance of a contract by the defendant has the option to embed his claim in either delict or in contract. The legal principles applied in establishing liability under each cause of action are different, and necessary averments to sustain each cause of action have to be made and supporting evidence adduced.

Held, further, that this was a depositum contract, a specific form of contract whose terms are implied by law. An essential element of the contract is the fact of the delivery of the item to the bailee and its return to the owner upon demand. Were the contract for storage only, the plaintiff would have been merely shown a designated place on the defendant's premises where he could place his goods and from which he could retrieve them when he chose. Under a contract of depositum, the bailee has the obligation, imposed by law, to return the goods to the owner upon demand. The liability of the bailee under the depositum contract is similar to the obligations imposed on sailors, innkeepers and stable keepers by the Praetor's Edict de nautis, cauponibus et stabulariis, which is a part of our law. The parties to a depositum contract can agree to exempt oneof the parties from liability for breach of the contract that ordinarily would have attracted liability, just as carriers by land invariably insert clauses in their contracts limiting their liability to instances of gross negligence only. Although the "owner's risk" clause expressly referred to negligence, it would not exempt the defendant from liability arising from gross negligence. In casu, there was no averment, evidence or argument that the defendant or its servants were negligent in any way, let alone grossly negligent. Employing a dishonest employee on its own is not per se proof of negligence. Consequently, the claim must fail.