Commentary

94.4 Primacy of agreement

BAILMENT vol 3(1)
BAILMENT vol 3(1) | Commentary

94.4 Primacy of agreement

BAILMENT vol 3(1) | Commentary

94.4 Primacy of agreement

As in many spheres, the common law obligations of the parties to a museum bailment are increasingly subordinated to the express terms of the agreement. It has even been said that the only field where unqualified common law rights remain directly relevant is that of ‘old loans’1. While this development is beneficial in its effort to anticipate potential problems, its limitations must be noted. In particular, it may be harder for a court to imply terms, or to discover collateral duties in tort, if the agreement is a detailed commercial agreement drafted by experienced legal advisers2.

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