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]