Thedepositum irregulare

(a) The problem of the deposit of money

"Praeterea et is, apud quern res aliqua deponitur, re obligatur et actione depositi, qui et ipse de ea re quam accepit restituenda tenetur":²⁰³ just like the commodatary, but unlike the borrower under a contract of mutuum, the depositary had to restore the very same object(s) that had been entrusted to him.

In this form, depositum can be found among the earliest institutions not only of Roman but of most of the ancient

⁸⁷ Ulp. D. 16. 3. 1 pr. In layman's language the word "commendare" was used (cf. e.g. Ulp. D. 50, 16, 186: "Commendare nihil aliud est quam deponere"). In post-classical times, this term totally superseded classical terminology: cf. Levy, Obligationenrecht, pp. 166 sqq. Justinian reintroduced the classical technical term. On the institution of commendatio in the Middle Ages and its Greek (and Roman) antecedents, see Paolo Frezza, "Commendatio nelle carte notarili dell'alto Medio Evo", (1969) 20 lura 177 sqq.

¹⁵⁸ Michel, Gratuite, pp. 71 sq.; also "Motive", in: Mugdan, vol. II, p. 319; Gluck, vol. 15, pp. 146 sqq.

^w Cf. Voet, Commentarius ad Pandectas, Lib. XVI, Tit. Ill, III ("Deponi possunt res omnes,... sive mobiles sive immobiles; cum et immobilium custodia alten tradi queat; et commendari, quae commendatio depositio est"); Van Leeuwen, Censura Forensis, Pars I, Lib. IV, Cap. VI, 3; on the other hand, Grotius, Inleiding, III, VII, 5; Gluck, vol. 15, pp. 146 sqq. Cf. further Vinnius, Institutiones, Lib. Ill, Tit. XV (sub de deposito), 1; Pothier, Traite du contrat de depot, n. 3; Story, Bailments, § 51.

™ §§ 90. 91 I 14 PrALR; § 960 ABGB.

^a Bester, op. cit.. note 169. n. 69.

^JC § 688 BGB and Windscheid/Kipp. § 377.

^J" inst.

III. 14. 3.

laws.^[1134] At all times, and particularly in less refined and rather insecure societies, people have felt the need to leave their valuables with a trustworthy friend in times of emergency, when marching out for war, and in similar situations.^[1135] Of course, they did not want to deposit only jewellery or valuable pieces of equipment and the like, but also fungible objects, especially money. This they could do and did by somehow individualizing the specific sum that was to be the object of the deposit: for instance, by depositing "viginti nummorum saccum"^[1136] or "pecuniam signatam".^[1137] Under these circumstances, as in all other cases of deposit, the depositor remained the owner;^[1138] ^{^[1139] the depositary committed theft if he used the money. However, in the case of money, the depositor does not normally have a special interest in getting back the very same coins. The specific characteristic of money is that it represents a certain value and hence one could argue that it is not really a corpus but a quantitas that has been deposited.²⁰⁴ Relying not so much on the honesty and trustworthiness, but on the solvency of the depositary, the depositor is primarily interested in getting back eadem quantitas or "tantundem",^[1140] i.e. a sum of money of the same (nominal) value that he has given. The depositary would then be allowed to use the money; he would become owner, and as such he would naturally carry the risk of the money getting lost,^[1141]' One might ask whether he should not possibly be required to pay some interest in return for being allowed to use the money.}

(b) Deposition and mutuum

It is obvious, on the one hand, that such a transaction would go beyond the normal scope and framework of depositum: it would be a contractus "[qui] egreditur... deposit! notissimos terminos".^[1142] However, there is a definite resemblance to mutuum.

In both cases we are dealing with the handing over of a sum of money, involving both a transfer of ownership and an undertaking on the part of the recipient to return the same sum. Thus, one might be inclined to apply the rules pertaining to mutuum to this kind of deposit and to allow the "depositary" to avail himself of the condictio. The condictio being stricti iuris, a practical disadvantage would then appear to be that the judge would not be empowered to award interest to the depositor (unless, of course, a special stipulation had been entered into).

On the other hand, there was one marked difference between the two transactions, relating, as it were, not so much to (legal) technicalities but to the fundamental balance of interest involved: a contract of mutuum was made in the interest of the borrower, whereas even in this irregular kind of deposit, it was primarily the depositor who was interested in entrusting his capital to another person. The advantage the depositary derived from the transaction was only incidental and did not motivate the contract. Hence, one could argue that if this type of transaction was to be accommodated within the contractual scheme of Roman law, it should have been squeezed into the niche of depositum. The actio deposit! would have offered the flexibility (on account of its bona fide clause) to award interest in appropriate cases — for instance, where there had been an agreement between the parties to this effect.

What exactly the attitude of the Roman lawyers was to this question is not at all easy to make out. No clear picture emerges from the texts contained in the Digest: some of them contain contradictions,^[1143] and suspicions of interpolations abound.^[1144] This kind of irregular deposit has been called one of the most controversial institutions in the science of Roman law^[1145]—and it may well be asked whether one can, in fact, speak of an "institution", as this term suggests that it was more clearly defined than it actually seems to have been at any time in the development of Roman law.^[1146] Only a few things are reasonably clear.

It was from the Hellenistic East that this type of transaction made its way into Roman business life.^[1147] There the 77c(j)aKaTad>T|KTi contract provided for the restoration of deposited things in genere^[1148] and was a convenient legal tool to accommodate the flourishing business of deposit banking.^[1149] Whatever banking business there was in the Roman Republic seems to have been mostly run by Greeks,^[1150] and the Greek word "trapezitae" was used, at least occasionally, for the money dealers on the Forum Romanum.^[1151] Large-scale banking institutions, however, whose function it could have been to collect deposits in order to be able to finance investments, do not seem to have existed in Rome.^[1152] Hence, it appears not to have been perceived, either here, or in other spheres,^[1153] as an economic necessity to receive and incorporate into Roman law a transaction along the lines of the TrapaKo:TanTiKir|. Conservative and possibly slightly supercilious as far as the value of legal institutions from the provinces was concerned,^[1154] the classical Roman lawyers were content, at first, to make available the standard remedy of condictio and thus to accommodate the new practice within the framework of the established rules of mutuum.^[1155]"⁵ Justinian, on the other hand, was prepared to grant the actio deposit! and to oblige the depositary, according to the requirements of bona fides, to compensate the depositor for the use that he was allowed to make of his money.^[1156] As to when and how this transition occurred, one reads many divergent accounts.^[1157] It is not unlikely, though, that the recognition of this special contract of deposit goes back to certain jurists of the late classical period.^[1158] The continental ius commune has retained this institution under the name of "depositum irregulare".^[1159] Usually, at least in more modern times, the rules of deposit are applied;^[1160] and, indeed, in most European languages money given to a bank is to this day called a deposit. The irregular deposit has found its way into the codifications, as for instance § 700 BGB,^[1161] and provides the legal basis for the modern current or giro account.^[1162]

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

Thedepositum irregulare

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