Chapter — Bucceroni, Institutions of Moral Theology
IX. On Deposit
What is Deposit, and how is it contracted? - Resp. To the 1st: Deposit is a contract by which a thing is handed over to someone to be guarded gratuitously, under this law, that the same thing be restored whenever it is requested. L. 1 Depositi; C. I. 1835; C. G. 1915; C. A. 957; C. H. 1758, 1760; C. L. 1431; C. B. 688. - A thing, namely movable. Deposit can be constituted only in movable things, C. I. 1831; C. G. 1918; C. H. 1761.
Even in immovables, C. A. 960; L. 746. - Gratuitously; for if a fee or interest has been established, deposit passes into lease and hire, or into loan at interest. L. 1 § Si vestimenta C. h.t.; C. I. 1837; C. G. 1917; C. L. 1432; C. B. 689. - To be guarded; if the depositary is permitted to use it, it almost passes into commodatum or mutuum. L. 24, 26 § 1 h.t.; C. A. 959; C. H. 1768. Almost, since the deposited thing must be restored whenever it is sought. It is handed over, for it is a real contract, which is perfected by delivery of the thing. C. A. 957; C. B. 688.
Resp. To the 2nd: Deposit is contracted expressly or tacitly. Expressly, when such a contract is made explicitly; tacitly, when a thing is brought to those who by reason of office are bound to its custody, such as innkeepers, stable-keepers, and sailors. L. 1 in fi. Naut. Cauponae, etc.; C. I. 1866; C. G. 1952; C. A. 970, 1316; C. B. 701; C. H. 1783. According to the same Italian, French, and Austrian Law, those who exercise transport by land are held to the same obligations for deposited things as innkeepers. They answer for things to be transported as soon as these have been entrusted to them in port or at a station of goods. Loss and deterioration of goods entrusted to the carriers themselves is imputed to the carriers, unless they prove that a fortuitous event or greater force was the cause. But as regards other craftsmen, if they contribute nothing except work to the making of another's thing, when loss of the thing occurs, they are not bound to compensation unless fault has intervened. C. I. 1630, 1631, 1636; C. G. 1782, 1784, 1789; C. A. 970, 1160, 1316.
What are the obligations of the depositary? - 1. The depositary cannot, per se, use the deposited thing. The reason is that the thing is given to him for custody, not its use conceded. Use of the thing can be judged permitted only if it can reasonably be judged that the owner of the thing consents to it, e.g., if by use the thing is exposed to no danger, nor made worse; if someone has deposited money not closed nor sealed. Wherefore, if the owner is unwilling, the owner must be compensated for the use made of the thing, if from this the depositary has become richer. C. I. 1846, 1852; C. G. 1930, 1936; C. H. 1767, 1770; C. A. 958, 961, 965; C. B. 698; C. L. 1437, 1438; Lugo d. 33. n. 4. - But he who truly uses another's thing at his own risk, even if he knows the owner is unwilling, acquires for himself what he gains thence by his own industry. By his own industry, since a thing consumable by use does not bear fruit by that use, but is destroyed. By his own industry, for fruits produced by the thing itself must be returned with the thing itself. C. I. 1852; C. G. 1936; C. A. 958, 961. But C. B. 698 and C. H. 1770 say that if the depositary uses deposited money, interest is owed from the day of use. L. 748.
The depositary must take that care of the deposited thing which he takes for his own things. L. 32 h.t.; L. 1 § 5 de Oblig. et action.; C. I. 1343; C. G. 1927; C. H. 1766; C. A. 961, 964; C. B. 690. - This obligation is stricter if the depositary offered himself to receive the deposit; if he stipulated a fee for the deposit; if the deposit was made for the convenience of the depositary alone; if an agreement intervened that he is liable for any fault. C. I. 1844; C. G. 1928; C. H. 1182, 1766; C. L. 1435, 1451. If the deposit is made for the depositor's favor alone, the depositary is bound only to furnish against fraud and grave fault, which is equated with fraud. L. Quod Nerva Dig. Depositi. If the deposit is also made for the favor of the depositary, as when he receives a stipend or fee, the depositary is liable even for slight fault, though not very slight fault. L. Depositum Dig. Depositi § 8 coll. § ult. Inst. de Locat. et cond. Except sailors, innkeepers, and stable-keepers, who are liable even for very slight fault, but not for fortuitous event or greater force. L. Et ita Dig. Nautae etc. Yet Laymann, de Deposito n. 1, with others, judges not improbably that this, namely that they are liable for very slight fault, is not valid in the forum of conscience before the sentence of the judge. - St. Thomas 2. 2. q. 62. a. 6; L. 750. According to C. I. 1867; C. G. 1953; C. H. 1784; C. A. 1316; C. B. 701, innkeepers and stable-keepers as depositaries are liable for theft or damage inflicted, if the theft was perpetrated or the damage inflicted by servants or persons placed over the direction of the inn, or by outsiders who frequent it. The depositary is held by no obligation if anything happens by prevailing greater force, unless he had already previously delayed returning the thing requested by the depositor. C. I. 1845, 1868; C. G. 1929, 1954; C. H. 1182, 1784; C. L. 1435, 1436; C. A. 964, 965. Exception for the internal forum, if the thing would have perished equally and at the same time and danger with the owner, because then that delay was not the cause of the loss. According to C. A. l.c., the depositary is not liable for a fortuitous event, even if the more precious deposited thing could have been saved by damage to his own thing.
He must return the deposit as soon as it is sought, if this can be done. L. Depositum § 22 Dig. Depositi. The reason is that the deposited thing is for the convenience of the depositor alone; and accordingly there can per se be no cause for retaining the deposit. Per se; for accidentally it sometimes must not be returned, as if it is demanded for one's own or another's harm. L. Depositum § 39 Dig. Depositi. But the thing is to be restored whenever the thing is asked back, even if perhaps a day was established in the contract for restitution. But before the established day, the depositary regularly cannot restore the thing except from a just cause. C. I. 1860; C. G. 1994; C. A. 462, 963; C. H. 1766, 1775, 1776; C. B. 695, 696; C. L. 1448. If a deposit has been made by a person who can contract obligation with a person who cannot contract it, the depositor has only a vindicatory action for the deposited thing if it exists with the depositary, or otherwise an action of restitution up to the concurrence of the quantity which has been turned to the utility of the depositary. C. I. 1842; C. G. 1926; C. L. 1433. 4. The depositary must restore the deposited thing to him who deposited it. If nevertheless he understands the thing to be stolen and knows its owner, he must warn this owner, after establishing a suitable space of time in which he may himself demand it back; but if this owner has been negligent, the depositary is freed from every obligation by restoring the deposit to him from whom he received it. Therefore the thing is regularly to be restored to him who deposited it, even to a thief, if the owner, having been summoned, has failed. L. 31 h.t.; C. I. 1853, 1854; C. G. 1937, 1938; C. H. 1771; C. L. 1441, 1442. Cf. here 1343, 1351. When the depositor has died, the thing is to be restored to the heir. If there are several heirs and the thing is divisible, his part is to be returned to each; but if the thing is indivisible, all must agree as to the mode of receiving the thing. L. 1 § Si pecunia 36 h.t.; C. I. 1855; C. G. 1939. When the depositary has died, the thing is to be restored by the heir. But if the heir in good faith has sold the thing, he is bound to return only the price, or his action to it, if not yet paid. C. I. 1851. 5. Restitution must be made by him with whom the deposited thing was, and in that place in which the thing is found without bad fraud of the depositary. L. 12 § 1 h.t.; C. I. 1859; C. H. 1774. According to C. G. 1943, in that place in which it was deposited. According to C. B. 697, in that place in which it was to be guarded. 6. The depositary, as also the borrower, cannot compensate to themselves debts from deposit, from commodatum, and precarium. Thus according to positive law. L. ult. C. de Commodato; L. Si quis C. Depositi; C. Bona fides de Deposito; C. I. 1289; C. G. 1293, 1885; C. H. 1200, 1747. Nevertheless, if someone retained the thing under this title, he would indeed sin against legal justice, but by no means against commutative justice. By natural law, "it is probable," says Lessius 1. 2. c. 27. n. 16, "that compensation has place in the forum of conscience when no other reason is available for obtaining the thing owed to oneself." But if the depositary finds that the deposited thing is his own, he is held by no further obligation. C. I. 1861; C. G. 1946; L. 753.
Whether, theological fault being excluded, the depositary is bound to compensation if the thing perishes from his negligence? - These are the words of Busembaum apud St. Alphonsus 749: "If he to whom a thing is lent, leased, deposited, or pledged guards it negligently, so that it perishes, but the negligence is not theological mortal fault, it is probable, as I said from Soto and Sa, that he is not bound to restitution in conscience. Others nevertheless think otherwise, namely, that he who has contracted juridical fault in guarding is bound to restore, if this was grave; and next if it was only slight, indeed even sometimes if it is very slight, namely when the deposit has been made for the convenience of both, and if he receives a price for custody. See Lessius cap. 7 d. 8; Laymann tr. 4 cap. 25, where he teaches that the depositary is held only for fraud, or gross fault, which is equated with fraud." These things as regards Natural Law. As regards Positive Law, cf. 1076. L. 751; St. Thomas 2. 2. q. 62. a. 6.
What are the obligations of the depositor? Necessary expenses made by the depositary must be refunded by the depositor, and the damage which perhaps the depositary suffered on account of the deposit must be compensated. Under this title the depositary can retain the deposit until complete payment of the debt. His office ought to be damaging to no one. L. 5, 23 Depositi; L. 60, 62 § Quod vero 5 de Furt.; C. I. 1862, 1833; C. G. 1947, 1948; C. H. 1779, 1780; C. A. 967; C. B. 693, 694; C. L. 1450.
What is sequestration, and what is its nature? Sequestration differs from deposit insofar as some contested thing is deposited by those who dispute with a third party under this condition, that, when the litigation is finished, it be restored to him whose it will be. L. 110 de Verbor. signif. ff.; C. I. 1870; C. G. 1956; C. H. 1763; C. A. 968. - The sequestrator cannot lay aside the office he has undertaken, against the will of those whose interest is concerned, unless from a grave and just cause, L. 5 § 2 h.t.; C. I. 1874; C. G. 1960; nor can he return a part to one of the depositors. L. 17 h.t.; C. H. 1763. This sequestration is called conventional, and is distinguished entirely from judicial sequestration, which is constituted only by the office of the judge, and can be constituted both for movables and for immovables. C. I. 1875 ff.; C. G. 1961 ff.; C. H. 1785 ff. Also distinguished is sequestration in the hands of third parties, by which namely he who detains a thing of your debtor, or who owes something to your debtor, is prohibited from returning it to him, so that provision may be made for you.