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
is called deponens
who receives the thing is called depositarius.
The main object of depositum
is to benefit the
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,
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
and not depositum.
If anything else except money is
promised, the contract is one of the innominati
The act of deposit may be purely voluntary; or it
may be from necessity, as in the case of fire, shipwreck, or other casualty.
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
), 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
could enforce these obligations is
the actio depositi directa.
is in duplum,
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
on the part of
and to all costs and expenses
incurred by his charge: his remedy against the deponens
is by an actio depositi
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
) 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
indifferent person, until an action relating to such res
has been decided, is called sequestration.
; Cod. 4.34,
Mos. et Rom. Legum Coll.
x.; Cic. de Off. 1.1. 0
; Asher, Zeitsch. f. Civ. und Pr. R.
Arndts in Haimerl's Vierteljahrschrift,
§ 374, &c.)