Depositum

The contract of depositum came to the fore when one person (the depositor) handed over a movable thing to another (the depositarius) and the latter undertook to retain the thing in his safe-keeping gratuitously for a given period of time or until the depositor demanded its return.

Like the commodatum, depositum derived from the ius honorarium and was therefore a negotium bonae fidei. It was constituted by agreement and the actual delivery of the thing.^{^[698]} Such delivery caused only physical control or detention (detentio) to pass to the depositarius, while ownership and protected possession remained with the depositor. The depositarius could keep the thing but was not entitled to use it; if he did use it, he could be guilty of theft of the use of such thing,^{^[699]} unless he had acted in good faith.^{^[700]} Furthermore, the depositary had to exercise care of the thing whilst it remained in his safekeeping but his liability for loss or damage of the thing was limited to dolus and culpa lata (gross negligence). Thus, if the thing was destroyed due to accident (casus fortuitus), superior force (vis maior) or simple negligence, the depositary was not liable for impossibility of performance.^{^[701]}

As in the case of commodatum, depositum was an imperfectly bilateral contract: although in principle such a contract only created one obligation, under certain circumstances it was possible for a counterclaim to arise. The principal obligation was always the duty of the depositary to return the thing on demand to the depositor in as good a condition as when he received it, together with any produce or accessories.^{^[702]} If he failed to do so, the depositor could enforce this obligation by means of the actio depositi.^{^[703]} A further result of this action, if it proved successful, was loss of honour (infamia) for the depositary.^{^[704]} On the other hand, the depositary could institute the actio depositi contraria against the depositor for compensation of expenses incurred by him in the maintenance of the object in question or for damage he had suffered as a result of mala fides on the part of the depositor.^{^[705]} Both the above actions derived from the ius honorarium and therefore the relevant duties of the parties were determined by reference to the requirements of bona fides.

Besides the ordinary case of depositum, Roman law recognized three special forms of such contract governed by rules that differed in some respects from the usual depositum.

The first was the so-called depositum necessarium or depositum miserabile: a depositum created under pressing necessity.^{^[706]} This emerged when the depositor was forced to deposit property with someone because of some unforseen emergency (e.g. fire, earthquake or shipwreck), and he thus hardly had the opportunity to choose the depositary.

When this event occurred the duties and liabilities of the parties were the same as in the case of an ordinary depositum, but if the depositary failed to fulfil his duties and was found to be liable he had to reimburse double (in duplum) of what was due to the depositor.^{^[707]}

Furthermore, when a dispute arose over a particular object the parties concerned could deposit such object with a third party (known as a sequester) for the duration of the dispute. After the dispute was settled, the sequester was required to hand over the thing to the successful party. If he failed to do so, the recovery of the object could be claimed by means of an action called actio depositi sequestraria. Unlike the normal depositary, the sequester had possession of the object, not merely detentio, and was protected by possessory interdicts.^{^{face="Times New Roman">[708]}}

Finally, the depositum irregulare was a deposit of money or other consumable things on the terms that the depositary should become owner of such things and could use them for his own needs on the condition that he return an equivalent quality and quantity on demand. An example of this form of deposit was money deposited with a banker. Originally, this contractual relationship was considered by the jurists to be mutuum^{^[709]}^{^[710]} but in later law depositum irregulare became regarded as a separate entity. This form of depositum differed from mutuum in that it primarily favoured the depositor, whereas mutuum favoured the borrower. Furthermore, unlike mutuum that existed as a negotium stricti iuris, the depositum irregulare was a negotium bonae fidei. Thus in the case of the latter contract, interest might be claimed (by means of the actio depositi) if such interest had been agreed upon informally or in the case of mora, purely on the basis of bona fides.¹⁰

4.4.4

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Depositum

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