INTRODUCTION

A pledge is a type of special contract where the owner of movable property (the pledgor) delivers it to another person (the pledgee) as security for a loan or the performance of an obligation. The primary purpose of a pledge is to act as collateral, ensuring that the pledgee has a legal right to retain possession of the goods until the debt or promise is fulfilled. While ownership remains with the pledgor, possession is transferred to the pledgee, who can sell the pledged goods if the debtor defaults, following legal procedures.

However, not every individual or entity can act as a pledgor in a contract of pledge. The ability to pledge is regulated by legal capacity, ownership rights, and contractual authority. Only individuals or entities with the legal right to transfer possession of property can enter into a pledge. This includes owners of movable goods, as well as agents or representatives acting with proper authorization. The pledgor must ensure they have clear ownership or authority to pledge the goods to avoid legal disputes.

WHO CAN PLEDGE

Ordinarily, goods may be pledged by the owner or by any person with the owner’s authority. A pledge made by any other person may not be valid. Thus, for example, where goods were left in the possession of a servant while the owner was temporarily absent, a pledge made by the servant was held to be invalid.[i]Similarly, where certain goods are left in the care of a person for some special purpose, he cannot pledge them.[ii] In the case before the Allahabad High Court, the railway company delivered goods using a forged railway receipt. The goods were then pledged with the defendants. In a suit by the Railways to recover the goods, the defendants contended that the Railways were too negligent in delivering the goods to the wrong person. But the court held that this would not constitute an estoppel against the company and that pledge was not valid. The principle is necessary to protect the individual interest in the ownership of property. But interest acquired in the course of lawful commercial transactions equally deserves to be protected. Accordingly, Sections 178 and 179 provide for certain circumstances in which a person, being left in possession with the consent of the owner, may make a valid pledge though without the owner’s authority.

1. Pledge by mercantile agent [Section 178]

Section 178 deals with pledge by a mercantile agent and states that where a mercantile agent is, with the consent of the owner, in possession of goods or the document of title to goods, any pledge made by him, when acting in the ordinary course of business of a mercantile agent, shall be as valid as if he were expressly authorised by the owner of the goods to make the same; provided that the pawnee acts in good faith and has not at the time of the pledge notice that the pawnor has not authority to pledge.

The first exception is in favour of a pledge created by a mercantile agent. Section 178 provides that where a mercantile agent is, with the consent of the owner, in possession of goods or documents of title to goods, any pledge made by him while acting in the ordinary course of business shall be valid, provided that the pawnee acts in good faith and has no notice of the fact that the agent has no authority to pledge.[iii] The necessary conditions of validity under the Section are as follows:

• Mercantile Agent

There should be a mercantile agent. The explanation to the Section says that the expression “mercantile agent” has the same meaning as is assigned to it by Indian Sale of Goods Act, 1930. In this Act, “mercantile agent means an agent having in the customary course of business as such agent authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods or to raise money on the security of goods”.

• Possession with Owner’s consent

The mercantile agent should be in possession of the goods or documents that the word “consent” for this purpose means agreeing on the same thing of title with the consent of the owner. The Supreme Court has laid down that the word “consent” for this purpose means agreeing on the same thing in the same sense as defined in Section 13 of the Contract Act. If the consent is real, it is immaterial that it was obtained by fraud or misrepresentation or with dishonest intention. All these things may make the person receiving possession liable for some offence, but the consent of the owner actually given is not annulled thereby. Thus, where a goldsmith obtained possession of certain jewellery under the pretence that he had a customer, and instead pledged the jewellery, the pledgee was held to have obtained a good title. Similarly, where a French Company sent to their London agents certain pictures, some being for exhibition only, but the agent pledged them, the pledge was held to be valid, the court saying that the principle applies to all goods in the custody of the mercantile agent whether for sale or not.”

 

In Sharadin v. Gokulchand,[iv] the Court interpreted “possession” appearing in Section 178 as juridical possession as distinguished from mere physical possession or bare custody. It has been held that a servant or a relation entrusted by the owner with the custody of goods during his absence cannot be said to be in possession thereof so as to be entitled to make a valid pledge thereof.

• In the course of business

Goods should have been entrusted to the as a mercantile agent and he should be in possession in that capacity. If the goods are entrusted to him in a different capacity, it is not open to a third party who takes a pledge from him to say that they were in his possession as a mercantile agent and therefore, he had the power to create a pledge.[v]

• Good Faith

The last essential requirement is that the pawnee should act in good faith and shout not have at the time of the pledge notice that the pawner has no authority to pledge. The expressions “good faith” and “notice”, are not defined in the Act. The definition of “good faith” as given in the General Clauses Act, 1895 is therefore, applicable. According to that Act a thing is said to be done in good faith when it is done honestly, whether negligently or not. “Notice” will mean actual as well as constructive notice.[vi]

PLEDGE BY DOCUMENTS OF TITLE

Where a mercantile agent is in possession of the documents of title related to his principal’s goods, and if he pledges the same, the pledgee gets a good title if he acts in good faith and without notice. An explanation to Section 178 says that the expression “documents of title” shall have the same meaning as assigned to it in the Sale of Goods Act, 1930. Section 2(4) of this Act provides that “documents of title to goods” includes a bill of lading, dock warrant, warehouse keeper’s certificate, wharfinger’s certificate, railway receipt, warrant or order for the delivery of goods and any other documents used in the ordinary course of business as proof of the possession or control of goods or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods hereby represented.

2. Person in possession under voidable contract [Section 178-A]

When the pawnor has obtained possession of the goods pledged by him under a contract voidable under section 19 or section 19A, but the contract has not been rescinded at the time of the pledge, the pawnee acquires a good title to the goods, provided he acts in good faith and without notice of the pawnor’s defect of title. Where goods are pledged by a person who has obtained possession under a voidable contract, the pledge is valid, provided that the contract has not been rescinded at the time of the pledge, and the pledgee has acted in good faith and without notice of the pledger’s defect of title.

3. Pledge by pledgee [Section 179]

Section 179, which is the relevant provision says that where a person pledges goods in which he has only a limited interest, the pledge is valid to the extent of that interest.  Thus, when a pledgee further pledges the goods, the pledge will be valid only to the extent of his interest and his interest is the amount for which the goods have been given to him as a security.

CONCLUSION

The concept of who can pledge under special contracts is governed by specific legal provisions that ensure fairness, clarity, and protection of property rights. While the general rule is that only the true owner or someone with the owner’s authority can create a valid pledge, exceptions exist under certain conditions as outlined in Sections 178, 178-A, and 179 of the Indian Contract Act, 1872.

Pledges by mercantile agents are valid when they are in possession with the owner’s consent, acting within the ordinary course of business, and when the pawnee acts in good faith without notice of any lack of authority. Similarly, pledges by documents of title and those entered by persons in possession under voidable contracts are also protected, provided the pawnee meets the good faith and notice requirements.

[i] Biddomoy Dabee v. Sittaram, ILR 4 Cal 497.

[ii] Shankar Murlidhar v. Mohanlal Jaduram, ILR (1887) 11Bom 704.

[iii] Sesappier v. Subramania Chettiar, ILR (1917) 40 Mad 678.

[iv] Sharadin v. Gokulchand, AIR 1931 Lah 526.

[v] Staffs Motor Guarantee Ltd. v. British Wagon Co. Ltd., (1934) 2 KB 305.

[vi] Stadium Finance Ltd. v. Robbins, (1962) 2 QB 664.