ARTICLE V: On Deposit and Sequestration

1092. • Deposit is a contract by which a movable thing is handed over to be kept, so that it may be restored whole. - He who deposits the thing is called the one depositing or depositor; but he with whom it is deposited is the depositary.⁰⁵

It is a real contract, which is perfected only by the handing over of the thing. It is, by its nature, gratuitous; but if a price is sanctioned for the keeping of the thing, the rules of deposit nevertheless have force.

Deposit is TWOFOLD: 1. voluntary, which is perfected by the spontaneous will of the contracting parties; and this can be express or tacit; - 2. necessary, called in ancient Law "miserable," which is made when some necessity urges, for example in the case of shipwreck, fire, etc. In modern Law, things deposited with innkeepers and drivers are considered as a necessary deposit.⁰⁶

1093. PRINCIPLES. I. The depositary is held to keep the thing deposited, and to restore it at the judgment of the one depositing. Thus all Laws.

1. He is held to keep the thing diligently;⁰⁷ indeed, he is held to special diligence if he promised it, or if he spontaneously offered himself, or if he sought a wage for the care of the thing, or if he accepted the thing solely for his own benefit, or finally if an express stipulation intervened concerning avoiding any fault whatever. His carelessness induces the obligation of restitution (cf. n. 920). - The depositary cannot watch what sort of thing has been deposited when he accepted it enclosed in a chest or sealed.⁰⁸ Similarly, he cannot without sin use the thing deposited, without at least the presumed consent of the owner; yet the sin will not be grave unless there is grave damage of the one depositing or danger of damage. But if he negotiates with the thing deposited, for example a pastor with the money of confraternities, the fruits belong to the negotiator, unless it has been otherwise established (Ami du Cl., 1910, p. 111; Lehmkuhl, Cas. consc., I, n. 854).

2. He is held to restore the deposit immediately to the one asking for it; and indeed with the fruits perceived from it; otherwise he would retain another's thing. Except unless he certainly knows that the thing is stolen, or unless he would have a certain cause of compensation, or unless he prudently fears lest the owner is going to abuse it (III, 753). Cf. the things said n. 1020.

1094. • II. The one depositing is held to preserve the depositary unharmed. For the axiom bears: "His own office ought to be damaging to no one." Hence, he must warn the depositary of a vice of the thing from which damage could arise to him, and repair all necessary or useful expenses made for keeping the thing (Porpora, tr. I, n. 529).

Let it be noted FROM NEW LAW:⁰⁹ 1. Deposit regularly cannot be made except by the owner of the thing deposited, capable of contracting; or by his express or tacit consent. - 2. Proof of deposit must be made in writing if the thing exceeds the value determined by law, unless it is a question of necessary deposit. - 3. Innkeepers are held concerning the theft or detriment of things deposited, whether the theft or detriment is done by servants or by strangers; but not if it is done with arms or by greater force. But see the things said n. 988.

1095. • II. Sequestration is a species of deposit by which a disputed thing is handed over to another third person to be kept, so that afterwards it may be returned to him to whom it has been adjudged by the judge or by arbitration. It is conventional when it is made by the mutual agreement of the contestants; judicial when it is decreed by the sentence of a judge.

Sequestration is governed by the same principles as deposit. But its object can be not only a movable thing, but also an immovable. It is not dissolved except by the sentence of a judge or by the mutual consent of the parties (Austrian Code, 968).