The gratuitous nature of depositum

Modern German law recognizes one further situation where an increased responsibility is imposed on the depositary: if a remuneration for the custody has been agreed upon, he is to be liable for dolus and culpa (in abstracto).¹⁸² Depositum, then, is no longer regarded as necessarily gratuitous.¹⁸³ The Roman lawyers thought differently.

"Si vestimcnta servanda balncatori data pcricrunt, si quidem nullam mercedem servandorum vestimentorum accepit, deposit! eum teneri et dolum dumtaxat praestare debere puto: quod si accepit, ex conducto."^[1127]

This, incidentally, is one of quite a few texts relating directly or indirectly to the public baths (thermae),^[1128] and it provides an indication of their enormous importance in the daily life of the average Roman.^[1129]

"The baths are one of the fairest creations of the Roman Empire", writes Carcopino;^[1130] "[they] in fact offered the Romans a microcosm of many of the things that make life attractive... [At the height of the Empire] the Roman people had contracted the habit of attending the baths daily and spending the greater part of their leisure there."^[1131]

For Rome, the Libellus de regionibus urbis Romae gave a total of 856 thermae; in a little provincial town of 15 000 inhabitants such as Timgad there were twelve.^[1132] The baths were usually run by a balneator, an independent contractor, to whom the owner had leased the bath. He exploited the baths on a commercial basis, but the entrance fee charged was very low.^[1133] At the time of Horace, it was a quadrans,

i. e. a quarter of an as.¹⁹¹ Thus, the baths were accessible even to the poor. Nevertheless, it was a much appreciated and very popular act of liberality if a magistrate marked his term of office by undertaking to pay all entrance fees for a certain period of time,¹⁹² or if a wealthy Roman in his will made his private bathing hall available to the general public for free.¹⁹³ This might have happened in the case discussed by Ulpianus; and where the entrance was free, it is more than likely that one did not have to pay for leaving one's clothes in the custody of the balneator or his changing-room assistant (the capsarius) either.¹⁹⁴ Under these circumstances, the contract could qualify as depositum; liability was confined to dolus (or dolus and culpa lata).

"Si quis servum custodiendum coniecerit forte in pistrinum, si quidem merces intervenu custodiae, puto esse actionem adversus pistrinarium ex conducto:... si vero nihil aliud quam cibaria praestabat nee de operis quicquam convenit, depositi actio est."

Somebody had given his slave, probably in order to penalize him, into the custody of a baker (who would make him work in his mill).¹⁹⁶ As long as the master of the slave paid for his maintenance only (cibaria), the contract was one of deposit. As soon as he remunerated the miller, however, the contract fell into the category of locatio conductio.

4.