DEPOSIT. — From the Latin *depositus* (deponere), meaning “deposited”; later “the act of depositing.” It is the contract by which a thing held in peaceful possession is given over for safekeeping and accepted with the obligation to restore it intact when the depositor so wishes.
The deposit, which concerns only movable goods, is a real contract, since it is perfected by the delivery of the thing to be held in custody. It is presumed to be gratuitous, unless the parties agree otherwise.
The deposit may be voluntary, if it is perfected by the consent of both parties, or necessary, if it occurs without such mutual consent in cases of force majeure: fire, riot, shipwreck, etc. To the latter category may be reduced tacit deposit, under which name is understood the handing over of a thing to those who, by virtue of their office, implicitly take it into custody: such are deposit in hotels (Italian Civil Code, arts. 1783; French Civil Code, arts. 1952–54) and deposit in public warehouses (Italian Civil Code, arts. 1787–97).
A species of deposit is also conventional sequestration (distinct from judicial sequestration, ordered by a judge — *can.* 1672 and following, 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 is settled, to restore it to the party found to be entitled thereto (Italian Civil Code, art. 1798). Sequestration, which may also concern immovable property, creates in the sequestrator obligations, rights, and powers that Italian law leaves to the determination of the parties. In the absence of specific agreements, the sequestrator is subject to the rules of deposit; if, moreover, it is necessary to administer the sequestered goods, the rules of mandate apply (Italian Civil Code, art. 1800).
The principal obligation of custody, characteristic of deposit, is also found in other relationships, such as, for example, in mandate and in commodate; yet only in deposit is custody the primary and specific object of the obligation. This obligation, however, is not, as some would have it, reducible to the mere duty of returning the thing, but consists above all in an activity of vigilance and preservation, strictly linked as means to end, and in substance directed to ensuring at all times the availability of the thing at the depositor’s pleasure.
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 upon in the interest of either party or, upon request of either, by the judge (Italian Civil Code, art. 1771). Even outside any agreed term, 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 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 exercise in their preservation the care of a diligent head of a household (Italian Civil Code, art. 1767).
In many civil legislations, the innkeeper is in certain cases liable even for things that the guest brings into the hotel without handing them over (Italian Civil Code, art. 1784). Civilists find the basis of the innkeeper’s greater obligation in the fact that he must regard his liability as a professional risk. This more stringent obligation, however, does not arise from natural law but only from positive civil law, nor is it in itself binding in conscience prior to a judicial decision.
Similarly, in the case of deposit in warehouses, organized for the custody and collection of goods—some of which may be subjected to special operations of preservation, packing, customs clearance, etc.—Italian law establishes a presumption of liability against the warehouse management (Italian Civil Code, art. 1787).
The depositary, for his part, has the right to inspect beforehand the condition of the objects declared and delivered; he also has the right to be reimbursed for expenses incurred and for damages possibly suffered in preserving the objects, and to retain the thing until he is satisfied.
As a rule, the depositary may not use the deposited thing. If the depositary is granted the use of the thing, the contract takes the form of a contract of commodate or loan, from which it differs only in that the thing may be reclaimed at will by the depositor and the contract is made in the interest of the depositor.
To this category of deposit belongs that which the Italian Civil Code calls irregular deposit, which occurs when the object of the contract is a quantity of money or other fungible goods with the depositary having the faculty to use them. In such a case, ownership of the deposited goods passes to the depositary, who is bound to return an equivalent quantity of the same kind and quality (Italian Civil Code, art. 1782). Bank deposits constitute the most frequent form of irregular deposit (Italian Civil Code, arts. 1834 and following), which may also occur in deposit in public warehouses when goods of the same kind belonging to different owners are mixed together.
If the depositary has illicitly used the deposited thing and thereby made a profit, to judge the obligations of conscience it is necessary to determine whether this profit is an industrial, civil, or natural fruit of the deposited thing. If it is an industrial fruit, he may retain it; otherwise, he must restore it (*res fructificat domino*).
It also seems contrary to a more perfect sense of honesty that one should compensate himself from the deposited thing; yet a strict prohibition of natural law in this regard cannot be demonstrated, and Italian law in some cases authorizes the sale of deposited goods in public warehouses to recover expenses from the proceeds (Italian Civil Code, art. 1789).
A particular question regarding deposit arises in the law of religious: namely, whether accepting a deposit is compatible with the vow of poverty. While few authors answer in the negative, on the grounds that the depositary exercises no act of dominion over the deposited thing, the majority of others, both ancient and modern, answer affirmatively, on the grounds that the religious in this matter assumes onerous obligations that are not always compatible with the vow and the Rule. Generally, religious Rules forbid the acceptance of deposits in an individual capacity, and a religious who does so illicitly undoubtedly commits a grave sin against justice if he accepts deposits of great value and, by not guarding them carefully, exposes the monastery to the risk of serious harm.