Redmac Leases, Inc. v. Lessner

ON REHEARING

DICKENSON, Justice.

Our original opinion relied upon this court’s holdings in Tradewind Ford Sales, Inc. v. Caskey, 600 S.W.2d 865 (Tex.Civ.App.—Eastland 1980), reversed, 24 Tex.Sup.Ct.J. 407 (May 13, 1981). In Caskey the Supreme Court declared a violation of Tex. Rev.Civ.Stat.Ann. art. 5069-7.07(4) (Vernon Supp.1980) by contractual language which stated:

Any personalty in or attached to the property when repossessed may be held by Seller without liability and Buyer shall be deemed to have waived any claim thereto unless written demand by certified mail is made upon Seller within 24 hours after repossession.

See also Zapata v. Ford Motor Credit Corporation, 615 S.W.2d 198, 24 Tex.Sup.Ct.J. 377 (1981), which discussed the identical provision and held that the first part of the clause “merely restates the bailor-bailee relationship existing at common law with respect to personalty in a repossessed vehicle,” but that the second part of the clause violated Article 5069-7.07(4) under the doctrine of trespass ab initio.

In this case the contract does not provide for a waiver of claims. It states:

*630Any personalty in or attached to the Property when repossessed may be held temporarily by Seller without liability for return to Buyer.

We construe this language to mean that Seller is to return such personalty to Buyer and that there is no liability for holding it temporarily. As such, it merely restates the bailor-bailee relationship existing at common law with respect to personalty in a repossessed vehicle. Zapata v. Ford Motor Credit Company, supra.

Appellee’s motion for rehearing is overruled. It is further ordered that both opinions now be published in accordance with Tex.R.Civ.P. 452.