Article — Noldin, Summa of Moral Theology
Article First. On Deposit
564. Notion. Deposit (Verwahrungsvertrag) is a contract by which some thing is received to be guarded and to be restored in kind to the one handing it over.
a. He who deposits a thing is called the depositor, but he with whom the thing is deposited is called the depositary.
b. Deposit can be a gratuitous or onerous contract, according as the depositary undertakes custody of the thing gratuitously or for payment. There are those who say that deposit by its nature is a gratuitous contract, because it is done only for the advantage of the depositor. Hence if payment is required for the custody of the thing, there is not a contract of deposit, but an onerous contract of lease of work. Yet all concede that almost the same obligations exist in each case, both as to the right of the depositor and of the depositary, except that the depositary who accepts payment is bound to guard the thing deposited with greater diligence.
c. Deposit is a real contract, which is perfected only by the real handing over of the thing to be guarded.1
d. Sometimes it is sufficient that the depositary tacitly consent to the contract; if, for example, travelers deposit their things on a ship or in a house or in a carriage, sailors, innkeepers, and drivers, by the very fact that they see the things being deposited and do not contradict it, tacitly undertake to guard them. Those who practice the carrying of things (die Frachtfuhrer) also undertake their custody when the things to be transported are handed over to them.
1 C.A. Section 957; C.G. Section 688.
565. Obligations of the depositary. a. The depositary in the custody of the thing is bound to employ that diligence which he is accustomed to employ in guarding a thing of his own of equal value; but he is not bound to employ greater diligence. Therefore in a common danger, for example, of fire or theft, he is not bound to prefer the thing deposited, even if more precious, to his own things, unless he has either expressly obligated himself to this, or stipulated payment for the custody, or the deposit was made solely in favor of the depositary.
b. The depositary cannot use the thing deposited except from the expressed or tacit, or at least reasonably presumed, will of the depositor: for it is not licit to use another's thing without the consent of the owner. The consent of the depositor can be presumed if the thing deposited undergoes no danger and does not become worse from the use.
alpha. To use a thing deposited which is consumed by use, as money, is not a grave sin, provided the depositary is certain that he can restore a thing of the same value; but the depositary commits a grave sin against the conditions of the contract if in this way he exposes himself to the danger of impotence for restoring.
beta. Yet if the depositary illicitly uses the thing deposited, for example, money for business, he can retain the profit received from it, because it is the fruit of his own industry. He is bound only to compensate the damage, if any, which the depositor suffered from the illicit use of the thing.1
c. The depositary must restore the thing deposited when it is sought by the depositor, whether the time for returning the thing was determined or not; but he cannot return it earlier if the time for guarding the thing had been determined. Nevertheless he is not bound to return the thing deposited: alpha. if he certainly knows that the thing is stolen, because he would cooperate in continuing injury against the owner of the thing; beta. if he knows that the depositor is going to abuse his thing, for example, a sword for killing an enemy, because he would cooperate in inflicting injury; gamma. if the depositor refuses to pay the compensation which the depositary can justly require.
Hence if the depositary refuses to return the thing deposited except in these cases, he commits sin and is bound to repair the damages which arose from this for the owner; and if the thing itself suffers damage from a fortuitous event which it would not have suffered with the owner, he is likewise bound to repair that, for he retains another's thing against the will of the owner reasonably unwilling.
d. He is bound to repair the damage which the thing deposited has suffered: and indeed, if it suffered it because of his grave theological fault, before the sentence of the judge; if it suffered it because of his juridical fault, after the sentence of the judge. But damage which the thing has suffered without any fault of his he is not bound to repair, unless he expressly undertook every danger of the thing upon himself.
1 C.G. Section 698 differs in this matter from other codes.
566. Obligations of the depositor. The depositor is bound: a. to pay the expenses which the depositary must undergo in guarding the thing; b. to repair the damages which have come to the depositary because of the deposit, and indeed before the sentence of the judge if they have come from theological fault, after the sentence of the judge if from juridical fault only.
567. Sequestration is a species of deposit and is defined: a contract by which a disputed thing is deposited with a third party under this condition, that when the lawsuit has been decided it be restored to the owner.
A distinction is made between conventional sequestration, which is constituted by the private will of the litigants, and judicial sequestration, which is constituted by a judge from office.
He with whom the disputed thing is deposited is called the sequestrator. His obligations are: a. he cannot lay down the office undertaken except from a grave and just cause; b. while the lawsuit has not yet been decided, he cannot return either the whole or a part to one of the depositors.