The liability of the depositary

(a) Dolus, culpa lata (and exceptions)

It has been said above that the depositary was liable only for dolus. This statement still needs some qualification. The formula in ius concepta with its "ex bona fide" clause was flexible enough to accommodate special contractual arrangements by the parties.

Thus, depositor and depositary were free to agree to make the latter responsible for culpa or even custodia.¹⁵⁴ The liability of the depositary was increased ex lege, where the depositum was in his own interest. Such cases are rare, yet we find an example in the Digest:

"Si qiiis ncc causam nee propositum faenerandi habuerit et tu emprurus praedia desideraveris mutuam pecuniam nee volueris creditae nomine antequam emisses suscipere atque ita creditor, quia necessitatem forte profkiscendi habebat, deposuerit apud te hanc eandem pecuniam, ut, si emisses, crediti nomine obligatus esses, hoc depositum periculo est aus qui suscepit."¹⁵⁵

Here the only reason why the friend deposited his money before embarking on his voyage was to enable the depositary to pay the purchase price for a tract of land, when required to do so. Closely related was another situation.

"[S]ed et si sc quis deposito obtulit, idem lulianus scribit periculo se depositi illigasse, ita tarnen, ut non solum dolum, sed etiam culpam et custodiam praestet, non tamen casus fortuitos."¹⁵⁶

Why the depositary was so keen to have the object for safekeeping we do not know; but the fact that he spontaneously and officiously urged the depositor to give it to him was enough to render him liable for custodia. But for such importunity on the part of the depositary, it has been argued, the depositor might well have chosen "a person of more approved vigilance".¹⁵⁷ This argument is not necessarily convincing, as the depositary's offer may just as well have been the result not of selfinterest but "of strong affection, and a desire to oblige, and often a sense of duty, especially in cases of imminent peril or sudden

The French code civil (artt.

1924, 1950) still grants a special privilege to depositaries in case of deposita miserabilia: oral proof by witnesses is admitted, whatever the value of the deposited objects; otherwise contracts involving a value of 5 000 Francs or more can be proved only by formal documents. On the depositum miserabile in general, see Voet, Commentarius adPandectas, Lib. XVI, Tit. Ill, XI; Pothier, Traite du contrat de depot, nn. 75 sq.; Gluck, vol. 15, pp. 208 sqq; Story, Bailments, § 44; and, most recently, Wieslaw Litewski, "Studien zum sogenannten 'depositum necessarium¹ ", (1977) 43 SDHI 188 sqq.

“ Cf. Ulp. D. 16. 3. 1. 6; Ulp. D. 13. 6. 5. 2; C. 4. 34. 1 (Alex.):. si non aliud

specialiter convenit..."); Erich Sachers, "Die Verschuldenshaftung des Depositars", in: Festschrift fur Paul Koschaker, vol. II (1939), pp. 100 sqq.

Ulp. D. 12, 1, 4 pr. Cf. Pothier, Traite du contrat de depot, n. 32; Gluck, pp. 179 sqq.; Jones, Bailments, p. 49.

¹⁵⁶ Ulp. D. 16, 3, 1, 35. Cf. further Gluck, vol. 15, p. 177; Pothier, Traite du contrat de depot, n. 30.

¹⁵⁷ Jones, Bailments, p. 47; cf. also Domat, Les loix civiles, Lib. I, Tit. VII, Sec. Ill, VIII emergency".^{^[1103]} Nevertheless, reminiscences of lui. D. 16, 3, 1, 35 can still be found in both the French^{^[1104]} and the Louisiana Civil Code^{^[1105]}—not, however, in modern German law.

Then there was one case where the depositary was even liable for vis maior: if he used the object that had been deposited with him and thus committed furtum usus, he could not expect any sympathy and had to bear the consequences, no matter what happened.^[1106]

Most importantly, though, "quidquid ob earn rem N^um N^um A° A° dare facere oportet ex fide bona" was probably, already in classical times, taken to apply to cases where the depositary had not been guilty of intentional breach of contract, but where he had blatantly disregarded the most obvious and elementary standards of good and diligent behaviour; in other words, where his lack of care had been such as to be inconsistent with good faith and honest intention.

The depositary's liability was thus extended to cases of culpa lata^[1107] (gross negligence), at first merely under the formula in ius concepta.^[1108] It was only in post-classical times, however, that this type of liability was conceptualized and generally placed on a par with dolus: "[M]agnam tarnen neglegentiam placuit in doli crimine cadere",^[1109] as Justinian interpolated Gaius' discussion of the actio depositi, "dissoluta enim neglegentia prope dolum est",^[1110] or "lata culpa plane dolo comparabitur"^[1111] as we read at other places.^[1112] Thus, the rule in Justinian's time seems to have been: "... qui depositum accepit... dolum solum et latam culpam, si non aliud specialiter convenit, praestare debuit."^[1113] We still find this rule in some of the codifications of the 19th century.^[1114]

D. 44. 7. 1. 5.

Ulp. D. 17. 1. 29 pr.

Ulp. D. 11. 6. 1. 1.

Cf. further De Robertis, Responsabilità contrattuale, pp. 58 sq.; Arangio-Ruiz,

(b) Diligentia quam in suis

Usually, however, another standard of liability was advocated in the literature and laid down in the codes. § 690 BGB is an example:.. the depositary shall be responsible only for such care as he is accustomed to exercise in his own affairs."^[1115] Here, liability is not determined according to the abstract standard of the diligens paterfamilias, but according to a concrete, subjective criterion (hence, in nonRoman parlance, culpa in concreto): the diligence expected of the debtor is diligentia quam suis rebus adhibere solet. This type of liability (and with it the distinction between diligentia diligentis and diligentia quam in suis) was largely developed in post-classical Roman law, but it was not entirely without classical antecedents.^[1116] As far as depositum is concerned, we have to go back to a very interesting but much disputed text by Celsus:

"Quod Nerva diceret latiorem culpam dolum esse, Proculo displicebat, mihi verissimum videtur, nam et si quis non ad cum modum quem hominum natura desiderat diligens est, nisi tarnen ad suum modum curam in deposito praestat, fraude non caret: ncc enim salva fide minorem is quam suis rebus diligentiam praestabit. "^[1117]

We are dealing here with a controversy among the classical lawyers (more precisely, in fact, between members of one and the same—the Proculian—school).

Liability of the depositary was originally restricted, as we have seen, to dolus. Nerva advocated extension to what he called culpa latior; we would say cases of gross negligence. This, according to Proculus, was going too far: where the depositary is a very careless person generally, one cannot regard it as breach of good faith (= dolus) if he also handles the depositor's property carelessly. Celsus, however, sided with Nerva and introduced what one might call the concept of relative dolus:^{171 * ^[1118] a careless person, too, acts in breach of good faith (= dolo malo), if he is more careless with regard to the depositor's property than with regard to his own. Gaius—about one generation later—did not adopt this idea, but expressly excluded liability for culpa. For this he advanced an interesting reason:.. qui negligent! amico rem custodiendam committit," he said, "de se queri debet".¹⁷⁴ If you deposit your property with a friend, you have to take him as he is. Ifhe is a careless person and duly loses your property, you must blame yourself for having trusted so improvident a person. You should have made your choice more prudently. Gaius used this argument to justify the depositary's dolus liability ("negligentiae vero nomine ideo non tenetur, quia..."). It is obvious, however, that the same thought can have an entirely different twist: taking the concept of culpa in abstracto as background and alternative (as it had come to be developed by the time of Justinian), it usually has the effect of restricting (rather than extending) the debtor's liability; and indeed, if we look into Justinian's Institutes, we find, for instance, the following reflections concerning the liability of one partner (socius) as against the others:
"... praevaluit tamen, etiam culpae nomine teneri eum, culpa autem non ad exactissimam diligentiam dirigenda est: sufficit enim talem diligentiam in communibus rebus adhibere socium, qualem suis rebus adhibere solet, nam qui parum diligentem socium sibi adsumit, de se queri (hoc est sibi imputare) debet."¹⁷⁵
This is Gaius' argument, revived under different auspices.
(c) The development of diligentia quam in suis
It is very difficult, if not impossible, to extricate the historical development of the distinction between negligence in abstracto (or diligentia diligentis, determined according to the standard of the diligens paterfamilias) and negligence in concreto (or diligentia quam in suis, determined from the point of view of the individual debtor) from thick layers of real or supposed interpolations and scholarly dispute surrounding the concept of culpa in general. It seems that one started evaluating the debtor's behaviour in relative terms, first of all, in situations where somebody in case of peril had saved his own property, but had left to its fate what had been entrusted to him. Under these circumstances he was made responsible, qua dolus, for not being able to restore his creditor's property.¹⁷⁶ Thus the idea gained ground that the depositor could expect the person to whom he was about to entrust some objects to display the same degree of diligence with regard to them that he would display in any event, i.e. particularly with regard to his own property. In the course of time, this idea was isolated and conceptualized as a specific standard of liability. As such, it had two significant aspects: if the debtor did not display the same diligence that he was used to displaying with regard to his own property, this could hardly be regarded as consistent with the standards of decent and honest behaviour. He was therefore liable, no matter whether he had in actual fact acted fraudulently or whether his act or omission would, in abstracto, have been qualified as gross negligence. On the other hand, however—and, once culpa liability had become established in contractual relationships, more importantly—there was the fact that diligentia quam in suis might just as well entail a relaxation of liability: for if the debtor was not a diligent person generally, how could he be expected to rise to a standard of utmost care, as far as not his own but somebody else's property was concerned? After all, the creditor chose his debtor, and if he chose a frivolous spendthrift, he had to blame himself for any disappointments.
Justinian did, in certain instances, provide for this type of liability. Diligentia quam in suis applied, for instance, in cases of tutela, dos or communio. Whether it applied to the contract of depositum also, at least perhaps in certain individual cases, is a matter of dispute.^[1119] ^{^[1120] ^[1121] There are many texts from which it is abundantly clear that the depositary was liable for dolus (and culpa lata) only.^[1122] But then, what about Cels. D. 16, 3, 32, which, after all, is also part of the Justinianic compilation? Was that merely an oversight? Or did Justinian only want to stress that not to comply with diligentia quam in suis should be regarded, in the case of depositum, as culpa lata or even dolus? Be that as it may, the idea of requiring the standard of diligentia quam in suis from the depositary has commended itself to a broad variety of authors of the ius commune^[1123] and also to modern legislators.^[1124] ^{^[1125] ^[1126]}}
3.}

<< | >>

↑

Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The liability of the depositary

More on the topic The liability of the depositary: