CHAPTER IV: ON DEPOSIT

924. • Deposit is a contract by which a thing to be kept is gratuitously committed and accepted, to be restored entire when it has pleased the depositor. But the care of deposit is judged to be accepted by drivers, sailors, innkeepers, and others obligated by office to keep things, whenever, while they are seeing it, a thing is deposited in a house, carriage, or ship.

1° He is bound to preserve and guard the thing deposited with that care and diligence which diligent men are accustomed to use in conserving a similar thing of their own; for he has taken up this custody of the thing handed over. If the thing deposited perishes by fraud or by his theologically culpable negligence, he is bound to restitution.

2° He cannot use the thing deposited without the express or tacit consent of the owner, or at least prudently presumed; for it is not licit to use another's thing without consulting the owner. But that consent is prudently presumed if the thing is going to become worse from non-use. Therefore sometimes it is licit to ride a horse deposited with you, lest its feet swell by remaining too long in the stable. Likewise if it is a question of a thing consumable by use, for example wheat, or also of money not enclosed in a bag or box, nor fortified by seal, provided the depositary is certain that he will have as much of the same goodness when it is sought back by the depositor.

3° He is bound to return the thing deposited at once to the one asking; for otherwise he would have another's thing while the owner was reasonably unwilling. Except, unless the depositor seeks it back to his own or another's damage; and thus one deferring to return money to a drunkard does not sin, when he is going to abuse it for drinking; or unless the thing is stolen and the owner seeks it back; or also (at least in the forum of conscience) unless the depositary has a just cause of compensation. But the thing deposited ought to be returned in that state in which it is found at the time of restitution, and with the fruits perceived from it. But if by the fault of the depositary it has become worse, he is obligated to repair the damage.

The depositor is bound to pay the expenses which the depositary underwent in preserving the thing deposited, and to render him unharmed for all things which he has suffered on occasion of the deposit. Thus for example, if you deposited a horse in another's stable, you ought to pay the expenses of nourishment; and if that horse labors under a contagious disease by which the horses of the depositary are infected, you must render him unharmed, for one's office ought to be damaging to no one.

See Smith n. 325. I.