Depositum (Deposit)

The word is clear. It comes from deponere, which produces more instantly recognisable forms in the past and passive (deposui, depositum). At its simplest deponere just means �to put down’ or �to set aside’ and from there it reaches �to commit to (someone’s keeping)’.

If it appears that Aulus Agerius deposited with Numerius Negidius a table made of silver and that by the dolus malus of Numerius Negidius it has not been returned to Aulus Agerius,

for as much as it shall be worth, for so much money let the judge condemn Numerius Negidius to Aulus Agerius; if it does not appear, let him absolve.

As to the formula in ius concepta (drafted on the law), it read:

Whereas Aulus Agerius deposited with Numerius Negidius a table made of silver, which matter is the subject of this action,

Whatever on that account Numerius Negidius ought to give to or do for Aulus Agerius ex fide bona,

for the value of that let the judge condemn Numerius Negidius to Aulus Agerius; if it does not appear let him absolve.⁶

The edict over these model formulae is also useful to set out. It is preserved complete by a full quotation at the beginning of Ulpian's treatment of the topic. Only by weird punctuation can a translation approach the beautiful economy of the original. D.16.3.1.1 (Ulpian, 30 On the Edict):

Praetor ait:

Quod neque tumultus neque incendii neque ruinae neque naufragii causa depositum sit, in simplum,

earum autem rerum quae supra comprehensae sunt, in ipsum in duplum, in heredem eius quod dolo malo eius factum esse dicetur qui mortuus sit, in simplum, quod ipsius, in duplum, iudicium dabo.

The praetor says:

On the ground that a deposit has been made other than by reason of riot, fire, collapse or shipwreck: for the simple value;

in the excepted cases here above described, against the depositee himself: for double value; against his heir: on the ground of what shall be said to have been done by the dolus malus of the deceased, for the simple value; on the ground of what shall be said to have been done by his own dolus malus, for double value, I shall grant a trial.

i. The demonstratio

The definition of deposit has already been encountered in differenti­ating other contracts from their nearest neighbours. The difficulty of distinguishing deposit from mandate was considered in connexion with mandate.⁷ Though deposit easily brings to mind a left luggage office, the transaction with British Rail would be locatio-conductio, because not gratuitous. The line between commodatum and deposit is clear enough, because deposit excludes user.

There is an awkward boundary with mutuum (loan for consump­tion), though in principle there ought to have been no blur. Money is the root of the problem. There is nothing wrong with a deposit of coins whether in a bag or loose, so long as the intention is that the depositee shall keep and return the very coins which are handed over. If the intention is that he shall use the money and return the equivalent that ought to be mutuum, with the property in the coins passing to the recipient. The motivation for the transaction ought not to be relevant. Hence the fact that the recipient was not soliciting a loan but being asked to accept one should not have the effect of drawing the transac­tion out of its natural category. Nevertheless, once you accept the validity of a deposit of coins to be returned in specie there are obvious practical difficulties in holding the line between that and the transac­tion in which the coins may be turned over. For example it is difficult to decide whether coins are being returned in specie or not. And if you cannot decide whether they are, it is better to say it does not matter. This practical problem joins forces with an advantage in allowing the development to happen. For if the �deposit’ which could be turned over could be litigated as a deposit rather than as mutuum, then the action would be based on bona fides. One consequence would be that informal pacts for interest could be annexed. At some time this depart­ure from principle was achieved and �irregular deposit’ was accepted as deposit.

�Lucius Titius sends greetings to Sempronius. I declare to you by this letter written in my hand that you should take knowledge of the fact that I now hold one hundred coins commended to me this day by yourself and paid over by Stichus your slave-accountant; which coins where and when you will I shall immediately repay.’ On this a question is put about increase by

interest. My responsum was: The action which lies is the actio depositi, for what does �commend’ mean if not �deposit’? Yet this is only so if what was intended was that the very same coins should be returned. But if it was agreed that the equivalent value should be given back the matter lies outside the very well-known limits of depositum. And in this question if the actio depositi does not lie because it was agreed to return the equivalent and not the same coins, then it must not lightly be said that an account of interest can be taken. It has indeed been laid down that, so far as interest is concerned in trials based on good faith the discretion of the judge can do as much as a stipulatio. Yet it is contrary to good faith and to the nature of the contract of deposit to seek interest for a time before mora (delay) from one who has done a kindness in undertaking to take in money. However, if from the beginning the agreement was that interest should be paid then the terms of the contract will be upheld.

This is thoroughly unhappy. It allows an action for agreed interest without ever saying quite what action it is to be. There is a very similar vacillation in D.16.3.26.1 (Paul, 4 Replies). There, however, the action to be given is clearly the actio depositi. Despite these difficulties some scholars believe that the interest-bearing generic deposit of money was classical.^[38] It merits a sizeable question-mark.

ii. The intentio

The main action (actio directa) lay to recover the res. The obligation to return it has been sufficiently considered in connexion with commoda- tum.^[39] The depositee, who receives nothing for his kindness, is liable only for dolus. Express terms can be agreed to oblige him to take care of the thing as well as to abstain from dolus.

The counter-action lay to the depositee for him to claim an indem­nity against the incidental expenses of the deposit, if any. As for example the feeding of an animal or the carriage costs of a deposit agreed to be rendered up at another place. He could also use the action to obtain compensation for any loss inflicted by the deposit if good faith required the depositor to make it good.

Very often, but not always, the depositee would by the same dolus as made him liable in the actio depositi also incur liability for theft. Not always. Fraudulent denial would not in itself be theft without handling of the res. Malicious destruction of the res would not be furtum but damnum iniuria datum (loss wrongfully caused). When this separate question of delictual liability is allowed into the picture, there is a certain artificiality in saying that the depositee could only be liable for dolus. For in some fact situations he would incur liability for damnum iniuria datum on the basis of mere negligence.