The nature of depositum; depositum miserabile

Depositum was similar to commodatum in many ways. It was a contract re,^[1092] it was a gratuitous transaction and, like the commoda- tary, the depositary did not have the possessory interdicts, but was a mere detentor.¹³⁴ The most significant difference, however, was that the object was handed over not to be used but to be kept in safe custody.¹³⁵ If a depositary used what had been given to him, he committed furtum usus and was liable to the depositor under the penal actio furti.¹³⁶ It is clear, therefore, that the balance of benefit and interest in depositum was entirely different from that in commodatum: it was only the bailor and not the bailee who could normally have an interest in and derive an advantage from this type of transaction.¹³⁷ This was bound to find its reflection in the standard of diligence that could be expected from the bailee.

It would not have been reasonable to impose custodia liability on an altruistic holder such as the depositary, who kept the object not for his own but for the depositor's benefit. In fact, his liability was restricted to dolus and that, of course, could easily be (and actually was) rationalized on the basis of utility considerations:

.. nam quia nulla utilitas eius versatur apud quern deponitur, merito dolus praestatur solus."¹³⁸ A further consequence flowed from this: if the deposited object was stolen, the depositor had to bring the actio furti against the thief.¹³⁹ Unlike the commodatary, the depositary was not eligible to do so: seeing that he was not liable towards the owner for this incident, and in this sense did not have a specific interest in the safety of the thing (custodia), the situation did not require a deviation from the normal rule, namely that it is up to the owner to sue for theft.

As in the case of commodatum, we find an actio directa (the actio depositi)¹⁴⁰ of which the bailor could avail himself if the bailee did not duly return the thing deposited,¹⁴¹ and also a contrarium iudicium (the actio depositi contraria) which the bailee could bring for reimbursement of expenses and compensation for damages.¹⁴² Again, of course, the latter action lay only where expenses had been incurred or damages caused; like commodatum, depositum was an imperfectly bilateral contract with the obligation of the depositary being the principal while that of the depositor was merely incidental. Unlike the lender in commodatum, the depositor must have been strictly liable to the depositary for damage caused by the object deposited; after all, it was he who benefited from the latter's kindness.^[1093]

Like the actio commodati, the (contractual) remedy of the depositor had its historical origin in delict;^[1094] even before the formula in factum concepta had been developed by the praetors, the XII Tables had granted a penal action for duplum in case of embezzlement.^[1095] Once, of course, the actio deposit! had been introduced, it normally lay for simplum.

One case always remained, though, where double the value of the object deposited was owed, and that was where the deposit had to be made suddenly and in a situation of emergency: tumultus, incendii, ruinae or naufragii causa.^[1096] Here the depositor did not have the time to approach a friend or to select a trustworthy person with whom to deposit the property and was more or less forced into this transaction. The Roman lawyers apparently regarded it as particularly perfidious if the depositary tried to take advantage of the depositor's predicament in such a situation. Even under normal circumstances, however, they looked at the depositary's breach of trust with such disgust^[1097] that he was taken to be famosus. Condemnation under the actio deposit!, in other words, involved infamia,^[1098] that is, a diminution of the estimation of a person among his fellow citizens and also certain legal disabilities—for instance, concerning the right to hold public office.^[1099] The actio deposit! was one of a number of actiones famosae based on contractual relationships to which the idea of honest behaviour was so fundamental that any violation was regarded as a particularly offensive breach of confidence. The institution of infamia (iuris) has lost its place in modern private law, but lives on as an ancillary penalty in criminal law.^[1100] The iudicium in duplum in case of the above-mentioned necessary deposit (which came to be called depositum miserabile) was also not received in France and Holland.^[1101] In Germany it survived until the 19th century,^[1102] but was not taken over into the BGB.¹⁵³ Penal elements are alien to modern private law.

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

The nature of depositum; depositum miserabile

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