"Deposit" of immovables?

If the BGB did not follow Roman law regarding the question of gratuitousness, it took a more traditional stand in another question also concerning the scope of application of depositum.

legacy of wood to provide fuel for the baths in Ulp. D. 32, 55, 3), and the contractors were granted an additional income from the salt revenues. Cf. Robinson, Scritti Guarino, vol. Ill, pp 1070 sqq.

Horatius, Saturae. I, 3, 137. Entrance for children was free- According to the lex metalli Vipascensis, the entrance fee was i as; and double the amount for women. An as was a bronze coin worth a quarter of a sesterce. An average family of three persons, in the second half of the 1st century A.D. could live on about 25 as per day. One as, according to Pompeian graffiti, bought one quart of local wine or a plate, 2 as a small fish. For further details, see Etienne, Pompeji. pp. 215 sqq.

“ Cf. e.g. Alf. D. 19. 2. 30. 1.

“ Cf. e.g. Scaev. D. 32. 35. 3.

⁸¹ Cf. Michel. Gratuite, p. 57.

⁸⁵ This was the position in classical law and again under Justinian. In post-classical vulgar law. the distinctions between the various contracts had become blurred and lucrative deposita were recognized. Cf. Codex Euridanus 278 and Ulp. D. 13. 6. 5. 2; Ulp. D. 47. 5. 2. 23. both interpolated; see Levy. Obligationenrecht, pp. 173 sqq.

⁸⁵ Michel. Gratuite, p. 58.

law, this type of transaction was confined to movable property. "Depositum est, quod custodiendum alicui datum est.. and the word "depositum" referred to "[id] quod ponitur".¹⁹⁷ In this very literal sense, land can hardly be said to be taken and put into somebody's custody. Based on lexical meaning and etymology, such an argument on its own, of course, carries only a limited degree of persuasiveness. It has therefore been suggested that the Roman lawyers did not recognize the "deposit" of immovables, because there was no need for it: if I ask a friend to look after and watch over my house while I am away, our relationship can be classified, according to the individual circumstances of the case, as precarium, commodatum or habitatio gratuita (if the friend is actually staying in the house); or else as a mandate (mandatum).¹⁹⁸ Be that as it may, the question was disputed in the ius commune,¹⁹⁹ and the opinion that immovable property can be "deposited" even found its way into some codifications²⁰⁰ and into South African law.²⁰¹ Yet, the BGB has codified the pandectist doctrine when it says: "By a contract of deposit the depositary is bound to keep in his custody a movable delivered to him by the depositor."²⁰²

5.