Question Two: On Deposit and Sequestration

584. Deposit in general (depot; bewaargeving, a. 1915) is the act by which someone receives another's thing to be guarded and to be returned in kind; but deposit properly so called is the contract by which a thing to be guarded is handed over to another, so that the same thing may be returned gratuitously and whole at the will of the depositor. Hence:

1. It is an essentially gratuitous contract (a. 1917): for if something must be paid for the custody, it does not remain a mere deposit but is as it were a letting;

2. As object it can have only movables (a. 1918);

3. It is a real contract which is not perfected except either by real delivery, or by supposed delivery of a thing which was already possessed by another title (a. 1919).

One deposit is voluntary, which is perfected by the mutual and express consent of the depositor and depositary (a. 1921); another is necessary, when the depositary is not chosen altogether freely, as happens in two cases: a) in case of fire, ruin, or shipwreck (a. 1949), and hence it is called a miserable deposit; b) when certain objects are entrusted by travelers to innkeepers or their servants, stable-keepers, sailors, and the like, all of whom are held concerning theft or any other detriment of things pertaining to travelers (a. 1953), unless armed force or another greater force intervened (a. 1954).

585. The obligations of the depositary are:

1. To preserve and guard the deposited thing diligently, with that fidelity and care with which he is accustomed to preserve his own things (a. 1927); whence, if it perishes or becomes worse from malice or other grave theological fault, he is held to compensate it.

This rule, according to a. 1928, is to be applied more strictly, so that then the diligence which a good father of a family applies in guarding his own things is required: a) if the depositary offered himself to receive the deposit; b) if an agreement intervened that he be held concerning any fault whatever; c) if he stipulated a wage for the custody of the thing; d) if the deposit was made for the advantage of the depositary alone. Nevertheless the depositary is never held if something happens by a superior greater force, unless he had already previously delayed returning the thing demanded by the depositor (a. 1929).

2. Not to use the deposited thing without the express, or at least reasonably presumed, permission of the owner; otherwise he will be held concerning the damage that followed (a. 1930).

3. To return without delay the identically same thing, as soon as it is demanded back by the depositor (a. 1932), unless by accident the latter demands it back in order to harm himself or others, or the thing is stolen and its owner demands it back (a. 1938), or unless the depositary has a just cause of retention, for example, if expenses made for conservation have not yet been restored (a. 1948).

4. To return the deposited thing only in that state in which it is found at the time of restitution (a. 1933). Hence if it was taken away by force, he is held to return what he received in its place; if it produced fruits, he must restore these also; but he owes no interest of the deposited money to the depositor, except from the day on which he was in delay in restoring (a. 1933 sq.).

586. The obligations of the depositor are:

1. To disclose a defect of the thing from which damage can come to the depositary, for example, a contagious disease of a horse.

2. To pay expenses if any must be made, or to repair damages if they followed in preserving or returning the deposit, for example, to pay for the nourishment of a horse (a. 1947).

3. To receive the deposited thing after the lapse of the established time, or even sooner, if the depositary can no longer retain the thing.

587. Sequestration (sequestratie) is a species of deposit. It is the contract by which a thing disputed among several persons, or judicially seized, is deposited with a third person, who is called a sequestrator, for the end that after the sentence of the judge or arbiter it may be handed over to him who has won the case (a. 1956); it should be noted, however, that not only movable things but also immovable things can be subjected to sequestration (a. 1959).

One sequestration is conventional, which is made by mutual agreement or the mere will of the parties; another is judicial, which is decreed by the sentence of a judge (a. 1955 sq.). The first, if it is gratuitous, is subject to the same rules as deposit properly so called (a. 1958); if it is not gratuitous, it is held as a hiring of work and is ruled by its rules. The other, which is left to the judgment of the judge to be prescribed, is not gratuitous by its nature, but the salary to be paid is determined by the law itself of sequestration (a. 1962).

But the depositary to whom the thing to be guarded has been handed over cannot be freed from the custody of the thing before the lawsuit has been settled, unless all whose interest it is have consented, or another legitimate reason is given (a. 1960).