DEPOSIT. — From Lat. depositus (deponere), that is, “laid down”; then “the act of laying down.” It is the contract by which a thing in peaceful possession is given for safekeeping and accepted with the undertaking to return it intact whenever the depositor wishes.
The deposit, which concerns movable things only, is a real contract, because it is perfected by delivery of the thing that will be the object of custody. It is presumed to be gratuitous, unless the parties have expressed a different intention.
The deposit may 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. The tacit deposit may be reduced to the latter category; by this name is understood the delivery of a thing to persons who implicitly and by reason of their office undertake to safeguard it: such are the deposit in a hotel (art. 1783 Italian Civil Code; arts. 1952–54 French Code) and that in general warehouses (arts. 1787–97 Italian Civil Code).
A form of deposit is also conventional sequestration (distinct from judicial sequestration, ordered by the judge — can. 1672 et seq. CIC), which may be defined as the deposit of a disputed thing made by one or more persons with a third party, who undertakes, once the dispute has ended, to return it to whoever proves to have the right to it (art. 1798 Italian Civil Code). Sequestration, which may also concern immovable property, gives rise for the sequestrator to 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 governing deposits; if it is then necessary to administer the sequestered things, the rules governing agency apply (art. 1800 Italian Civil Code).
The principal obligation of safekeeping, characteristic of the deposit, is also found in other relationships, such as, for example, agency and commodatum; but only in the deposit is safekeeping the primary and specific object of the obligation. It does not, however, consist, as some would have it, merely in the obligation to return the thing, but above all in an activity of vigilance and preservation, closely connected as means to an end, and essentially directed toward making the thing available at all times at the depositor’s pleasure.
The depositary’s fundamental obligations, obligations of justice that unquestionably bind in conscience, are therefore two: the preservation of the deposited objects, and their return as soon as the depositor requests them, unless a period has been agreed upon in the interest of the depositary or the depositor, or has been set by the judge at the request of either one (art. 1771 Italian Civil Code). Even apart from any fixed period, in certain cases charity will impose upon 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 accordance with the general rule concerning the virtue of charity, this obligation does not bind under grave inconvenience. The depositary, who is obliged to return the objects as they were delivered, must exercise in preserving them the care of a diligent head of a household (art. 1767 Italian Civil Code).
In many civil-law systems, the hotelkeeper is in certain cases also liable for things that the guest brings into the hotel without delivering them to him (art. 1784 Italian Civil Code). Civil-law scholars find the basis of the hotelkeeper’s greater obligation in the fact that he must regard his liability as a professional risk. This more serious obligation, however, does not derive from natural law, but only from positive civil law, nor is it in itself binding in conscience before the judge’s ruling.
With regard also to deposits in warehouses, organized for the safekeeping and collection of goods, which are sometimes subjected to special operations of preservation, packing, customs clearance, etc., Italian law establishes a presumption of liability on the part of the warehouse management (art. 1787 Civil Code).
For his part, the depositary has the right to ascertain in advance the condition of the declared and delivered objects; he also has the right to reimbursement of the expenses incurred and of any damage suffered in preserving the objects themselves, and to retain the thing until he has been satisfied.
As a rule, the depositary may not use the deposited thing. If the depositary is granted use of the thing, the contract takes the form of a contract of commodatum or mutuum, from which it differs only in that the thing may be requested from the depositor ad nutum and the contract is made in the depositor’s interest.
To this category of deposits belongs what the Italian Civil Code calls an irregular deposit, which exists when the object of the contract is a quantity of money or of other fungible things, with the depositary being permitted to use them. In this case ownership of the deposited things passes to the depositary, who is obliged to return an equal quantity of things of the same kind and quality (art. 1782 Italian Civil Code).
Bank deposits constitute the most frequent form of irregular deposit (art. 1834 et seq. Italian Civil Code), which may also occur in deposits 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 gained a profit from it, in order to determine his obligations in 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 more perfect sense of honesty for someone to compensate himself from the deposited thing; nevertheless, a strict prohibition of natural law in this regard 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 Italian Civil Code).
A particular question concerning the deposit arises in the law governing religious: namely, whether accepting a deposit violates the vow of poverty. While a few authors answer in the negative, insofar as the depositary exercises no act of dominion over the deposited thing, the majority of the others, both ancient and recent, answer affirmatively, insofar as in this matter the religious assumes onerous obligations that are not always compatible with the vow and the Rule. In general, religious Rules prohibit the acceptance of deposits in an individual capacity, and there is no doubt that a religious who illicitly does so sins gravely against justice when he accepts deposits of great value and, by failing to safeguard them carefully, exposes the monastery to the danger of serious losses.