Depositum (Deposit)
(1) Nature and Development
Depositum (deposit) was the handing over of a moveable thing for safe-keeping. It was again gratuitous: if the person with safe-keeping was paid, then the contract would be one of hire of that person's services.
Depositum was distinct from comÂmodatum as well, as a depositee had no right to use the property. This was a bonae fidei contract[2115] and was bilateral: both parties undertook duties.(2) The Depositee’s Duties
The depositee was liable only for deliberate wrongdoing (dolus), not simply careÂlessness.[2116] This could be altered by agreement, but could not exclude deliberate wrongdoing. Beyond this, the depositee was required to return the property on demand, along with any accretions.[2117]
Enforcement of the depositee's duties was by an action called the actio deposÂiti (action on the deposit). Because of the breach of trust involved, breach of the depositee's duties also incurred infamia.[2118] The measure of damages depended on the situation in which the deposit was made. In ordinary circumstances, simple damages only would be due. If the deposit was made in an emergency, however, for example in a shipwreck or a riot, double damages were due.[2119] Ulpian explains the distinction:
This distinction is justified. Indeed, when someone has chosen to put his faith in another and the deposit is not returned, he must be happy with simple damages. However, when he deposits through necessity, the crime of perfidy increases and the welfare of the public must demand retribution in the public interest, for it is harmful to breach faith in matters of this kind.[2120]
(3) The Depositor’s Duties
The depositor was liable for any damage caused by his or her fault. The depositor was also liable for any necessary expenses incurred by the depositee.[2121] Enforcement was by means of the actio depositi contraria (counter-action on the deposit).[2122]
(4) Special Cases
Two special cases of deposit require some comment.
Depositum irregulare (irregular deposit) was a deposit of money, most likely with a banker.[2123] When the depositee was a banker this was essentially a bank account, and was similar to mutuum, in that the depositee acquired ownership of the money and was permitted to make use of it. However, it differed from mutuum in that the deposit was made in the depositor’s interest rather than the depositee’s. This was an investment by the depositor, who would expect a return on that investment, and indeed it appears that provision could be made for payment of interest withÂout a separate stipulatio.[2124]
The second of the special cases is sequestratio.[2125] This was a form of deposit[2126] by which two or more people who were in dispute over an item of property would deposit the property with an individual known for these purposes as a sequester.[2127] Unlike the situation with a normal deposit, the sequester was considered to have possession of the property rather than merely custody.[2128] This had two significant consequences. First, as none of the parties to the dispute now had possession, usucapio[2129] could not run in favour of any of them. Second, as the sequester had possession, the sequester therefore had the benefit of the possessory interdicts if dispossessed.[2130]
E.