DEPOSIT. - From Latin depositus (deponere), that is "deposited"; then "act of depositing". It is the contract by which a thing in peaceful possession is given to be kept and is accepted with the undertaking to return it intact, whenever the depositor pleases.
The deposit, which concerns only movable things, is a real contract, because it is perfected by the delivery of the thing that is to be the object of custody. It is presumed gratuitous, save for a different intention of the parties.
The deposit can be voluntary, if it is perfected by the consent of both parties, or necessary, if it takes place without this mutual consent on the occasion of force majeure: fire, riot, shipwreck, etc. To the latter the tacit deposit can be reduced, by which name is understood the delivery of a thing to those who implicitly and by reason of their office take it into custody: such are the deposit in a hotel (art. 1783 of the Italian Civil Code; arts. 1952-54 of the French Code) and that in general warehouses (arts. 1787-97 of the Italian Civil Code).
A species of deposit is also the conventional sequestration (distinct from the judicial one, ordered by the judge - can. 1672 ff. CIC), which can be defined as the deposit of a disputed thing made by one or more persons with a third party, who binds himself, once the dispute is ended, to return it to whoever turns out to be entitled to it (art. 1798 of the Italian Civil Code). Sequestration, which can also concern immovable goods, generates in the sequestrator obligations, rights and powers, which Italian law leaves to the determination of the parties. In the absence of agreements on the matter, the sequestrator is subject to the rules of deposit; if moreover it is necessary to administer the sequestrated things, the rules of mandate apply (art. 1800 of the Italian Civil Code).
The principal obligation of custody, characteristic of deposit, is also found in other relationships; as, for example, in mandate and in loan for use; however, only in deposit is custody the first and specific object of the obligation. It is not reduced, however, as some would wish, to the simple obligation of returning the thing, but consists above all in an activity of vigilance and preservation, closely connected as by a relationship of means to end, and in substance directed at making possible at all times the availability of the thing ad nutum of the depositor.
The fundamental obligations of the depositary, obligations of justice that undoubtedly bind in conscience, are therefore two: the preservation of the deposited objects, and their restitution as soon as the depositor requests them, unless a term has been agreed in the interest of the depositary or of the depositor or, at the request of one or the other, by the judge (art. 1771 of the Italian Civil Code). Even apart from any term, in certain cases charity will impose on the depositary the duty not to return the deposit, for example, if he foresees that the depositor will make bad use of the thing. Nevertheless, in conformity with the general rule of the virtue of charity, this obligation does not press with grave inconvenience. The depositary, bound to return the objects as they were given, must employ in their preservation the care of a diligent father of a family (art. 1767 of the Italian Civil Code).
The innkeeper, in many civil legislations, has in certain cases responsibility also relatively to the things that the client brings with him into the hotel without delivering them to him (art. 1784 of the Italian Civil Code). Civilists find the foundation of the innkeeper's greater obligation in the fact that he must consider his responsibility a professional risk. This graver obligation, however, does not come from the natural law, but only from positive civil law, nor is it of itself binding in conscience, before the sentence of the judge.
Also with regard to deposit in warehouses, organized for the custody and collection of goods, which are sometimes also subjected to special operations of preservation, packing, customs clearance, etc., a presumption of responsibility is established in Italian law on the part of the management of the warehouses (art. 1787 of the Civil Code).
For his part the depositary has the right to ascertain beforehand the state of the objects declared and delivered; he has moreover the right to be reimbursed for the expenses incurred and for the damages eventually suffered for the preservation of those objects, and to retain the thing until he is satisfied.
As a rule the depositary may not make use of the deposited thing. If the use of the thing is granted to the depositary, the contract takes the form of the contract of loan for use or of loan for consumption, from which it differs only in that the thing can be requested from the depositor ad nutum and the contract is made in the interest of the depositor.
To this category of deposit belongs what the Italian Civil Code calls irregular deposit, which occurs when the object of the contract is a quantity of money or of other fungible things with the faculty for the depositary to make use of them. In that case the ownership of the deposited things passes to the depositary, with the obligation to return an equal quantity of the same kind and quality (art. 1782 of the Italian Civil Code).
Bank deposits constitute the most frequent form of irregular deposit (art. 1834 ff. of the Italian Civil Code), which can also occur in deposit in general warehouses, when goods of the same kind, belonging to different owners, are mixed together indiscriminately.
If the depositary had unlawfully used the deposited thing and had made a gain from it, in order to judge of the obligations of conscience it is necessary to see whether this gain is an industrial, civil or natural fruit of the deposited thing. If it is an industrial fruit he may retain it, otherwise he must return it (ree fructificat domino).
It also seems contrary to a sense of more perfect honesty that one should compensate himself out of the deposited thing; nevertheless a strict prohibition of natural law on this point cannot be demonstrated and Italian law authorizes in certain cases the sale of things deposited in general warehouses in order to recover expenses from the proceeds of the sale (art. 1789 of the Italian Civil Code).
A particular question regarding deposit is raised in the law of religious: namely, whether accepting a deposit injures or not the vow of poverty. While few authors answer negatively, inasmuch as the depositary exercises no act of dominion over the deposited thing, the majority of the others, both ancient and recent, answer affirmatively, inasmuch as the religious in this matter burdens himself with onerous obligations, which are not always compatible with the vow and with the Rule. And in general the religious Rules prohibit the acceptance of a deposit on an individual basis, and the religious who does so unlawfully undoubtedly sins gravely against justice, if he accepts deposit of great value and, not keeping them cautiously, exposes the monastery to dangers of grave damages.
Bibliography5 works
Pietro Palazzini