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Deposit in the Roman law

This post is also available in: Polish (polski)

Forum Romanum
Forum Romanum | Photo: Tomasz Podkowa

Apart from loan for consumption (mutuum) there were other real contracts – deposit (depositum), loan for use (commodatum) and pledge (pignus). Originally there was only the loan but with time the group of real contracts expanded and several different types of contracts were specified.

Depositum or deposit was a contract which meant placing a specified non-consumable thing by the depositor with the depositary for safekeeping. Such a contract was free of chargé and the deposited thing was supposed to be returned upon demand, even if the contract was intended for a specified period of time. The ownership of the thing was not transferred to the depositary and moreover the depositor could deposit a thing that was not his own.

The depositary did not get any profits from such a contract because he could not use the deposited thing or get any benefits from it. He could be held responsible for bad intentions (dolus) as well as serious negligence (culpa lata) and furthermore such a verdict would additionally cause infamy because actio depositi directa which the depositor could use against him belonged to actiones famosae (actions resulting in infamy). He could be also accused of the theft of use (furtum usus), if he used the deposited thing, or standard theft (furtum rei) in case of the usurpation of the thing. The depositor on the other hand could be accused of recklessly depositing a dangerous thing (omnis culpa). The depositary could also use actio depositi contraria against him, if the incurred some expenditures or a loss caused by the deposit – in this case the depositor became a debtor, however it did not result in his infamy.

There were several types of deposit. A necessary deposit (depositum miserabile, necessarium) took place if a thing was deposited in the face of danger. Another type was an incorrect deposit (depositum irregulare) which happened if the deposited thing was specified with respect to its type and not an individual thing, e.g. money. It was different from the loan because it was in the interest of the depositor (while the loan was for the benefit of the borrower) and it was a bilateral contract (loan was unilateral). What is more, it was a contract in good faith (bonae fidei) as opposed to the loan which belonged to the strict law contracts (strictii iuris). Just as in the case of the loan there could be interest set but it was agreed upon with the use of a standard agreement (pactum), not a stipulation, which was used for loans. The last type of deposit was the sequestration deposit (depositum sequestre) which meant placing the subject of a dispute (res litigiosa) with a third party for the duration of the trial.

Author: Jakub Ernt
  • Agnieszka Kacprzak, Jerzy Krzynówek, Prawo Rzymskie - Repetytoria, Warszawa, 2002, C. H. Beck
  • Kazimierz Kolańczyk, Prawo Rzymskie, wydanie 5 zmienione, Warszawa, 2007, LexisNexis
  • Witold Wołodkiewicz, Maria Zabłocka, Prawo Rzymskie - Instytucje, Warszawa, 2014, C. H. Beck
  • Wojciech Dajczak, Tomasz Giaro, Franciszek Longchamps de Beriere, Prawo Rzymskie - u podstaw prawa prywatnego, Warszawa, 2014, Wydawnictwo Naukowe PWN

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