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DEPO´SITUM

DEPO´SITUM is a real contract which consists in one man entrusting a movable thing to another to keep until it is demanded back, and without any reward for the trouble of keeping it. The party who makes the depositum is called deponens or depositor, and he who receives the thing is called depositarius. The main object of depositum is to benefit the deponens, and not the depositarius. Accordingly the depositarius has, as a rule, no right to make use of the thing deposited, the contract by which one person lends a thing to another for his gratuitous use being commodatum, and not depositum. The deponens is benefited by the depositum without being obliged to give anything in return. If money is promised to a person for taking care of a thing, the contract is locatio conductio, and not depositum. If anything else except money is promised, the contract is one of the innominati contractus. The act of deposit may be purely voluntary; or it may be from necessity, as in the case of fire, shipwreck, or other casualty. The depositarius is bound on demand to restore the thing deposited to the deponens, or to the person to whom the deponens has ordered it to be restored. If he cannot restore it, or cannot restore it uninjured, he is liable, should such loss or injury be due to his wilful misconduct (dolus) or to gross negligence (culpa lata), which is equivalent to wilful misconduct; but he is not liable on account of ordinary negligence (culpa levis), except under special circumstances, as that he has agreed to undertake such liability, or has benefited in some way by the contract. The reason why he is not bound as a rule to take any special care of the thing is, that he has derived no benefit from the contract. With the thing itself he must restore all appurtenances and any fructus which the thing has produced. The remedy by which the deponens could enforce these obligations is the actio depositi directa. The actio is in duplum, if the deposit was made from necessity: if the depositarius lost the action, he suffered infamia as a consequence. The depositarius on his side is entitled to be secured against all damage which he may suffer from the deposit through any dolus or culpa on the part of the deponens, and to all costs and expenses incurred by his charge: his remedy against the deponens is by an actio depositi contraria.

Roman law recognised an irregular kind of deposit, which consists in depositing fungible things, such as money, with another person, on the understanding that an equal quantity of things of the same kind shall be restored, and not the identical things deposited, as in an ordinary deposit. In this case the depositarius has the use of the things deposited, the property in them passing to him: consequently he is subject to all risk of loss. This transaction is distinguished from a loan (mutuum) by the fact that it is entered into in the interest of the person who makes over the things, and not in that of the person who receives them.

A deposit of a res litigiosa with some indifferent person, until an action relating to such res has been decided, is called sequestration.

Dig. 16, 3; Cod. 4.34, Mos. et Rom. Legum Coll. x.; Cic. de Off. 1.1. 0; Juv. 13.60; Asher, Zeitsch. f. Civ. und Pr. R. 22.8; Arndts in Haimerl's Vierteljahrschrift, 17.8; Windscheid, Pandekten, § 374, &c.)

[E.A.W]

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