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TITLE X.

OF DEPOSIT (DEPOSITO), AND LOAN (PRESTAMO).

[167] CAP. 1. THE second contract, useful or advantageous (util) to one party only, is deposit, by which the person who receives does an act of kindness and affection to the person who makes the deposit, Prol. tit. 3. P. 5., and thus every person may deposit what belongs to him with whomsoever he pleases, L. 3. tit. 3. P. 5., [L. 3. tit. 3. P. 5.] but not things stolen, even though the deposit be made with an escribano, L. 22.1 tit. 1. lib. 2. Rec., and L. 2. tit. 21. lib. 2. Rec. [L. 2. tit. 25. lib. 5. Nov. Rec.] It is called by the laws of the Partida, condesijo, from the old verb condesar, to guard or preserve, L. 1. tit. 3. P. 5.. [L. 1. tit. 3. P. 5.] Deposit is when one man confides his property to the custody of another, L. 1. tit. 3 P. 5. [L. 1. tit. 3. P. 5.] It is of three sorts, 1st, When a person voluntarily and without necessity deposits the thing. 2d, When he does it through urgent necessity, in order to save the thing or property from any fire, shipwreck, &c. 3d, When the thing is deposited by the possessor to abide the event of a law suit, L. 1. tit. 3. P. 5. The first is called simple deposit; the second, miserable; and the third, sequestration.

The simple and miserable deposit, 1st, Should be kept carefully, faithfully, and without any remuneration (sin interes alguno). The depositary (depositario) ought to restore at its time3 the same thing received to the person who deposited it (al deponente), L. 5. tit. 3. P. 5. [L. 5. tit. 3. P. 5.] 3d, If this fidelity (lealtad) be wanting by the faults of the depositario, he is obliged to pay double the amount of the thing in the case of a miserable, and the same price or value in that of a simple deposit. From the first principle it follows, 1st, That deposit from its nature is gratuitous, L. 2. tit. 3. P. 5., [L. 2. tit. 3. P. 5.] therefore it must not bear interest even on account of gain ceasing (por razon del lucro cesante), L. 15. tit. 18. lib. 5. Rec. [L. 21. tit. 1. lib. 10. Nov. Rec.] 2d, That a deposit made of any

1 Palacios says, there is an error in the quotation of this law, (which is not in the Nov. Rec. and that L. 2. of tit. 21. of the same, which is L. 2. tit. 25. lib. 5. Nov. Rec. prohibits escribanos from receiving, in deposit, things stolen. It is presumed they would, so receiving knowingly, be punishable criminally.

2 See L. 2. tit. 3. P. 5.

3 That is, when it shall be demanded. Sce L. 5. cited, and L 10. tit. 3. P. 5.

4 The words of the text are, en la misma especie.

5 That is, gross fault, or by fraud. See L. 2. tit. 3. P. 5. and Gr. Lop. Gl. 7. on ditto. also L. 8. tit. 3. P. 5.

6 Lucro cesante, is the gain or interest which it is calculated money might produce during the time for which it is lent or unemployed. See Curia Philipica, lib. 2. Com. Ter. ch. 2: n. 3. tit. Intereses, p. 353, ed. 1797.

of those things which are measured, weighed, &c., on interest, is a contract which partakes more of the nature of mutuo' than that of deposit, L. 2. tit. 3. P. 5. [L. 2. tit. 3. P. 5.] 3d, That the depositario must be paid for the expenses which he shall incur for the [168] benefit (en ultilidad) of the thing deposited, L. 10. tit. 3. P. 5. [L. 10. tit. 3. P. 5.] 4th, That the depositario neither acquires dominion nor possession in the thing deposited, L. 2. tit. 3. P. 5. [L 2. tit. 3. P. 5.] From the second principle it follows, 1st, That the depositario is obliged to return the thing whenever the person who deposited it, or his heirs, may require it, together with the fruits, rents, and improvements, without being able to retain it under pretence of set-off (compensacion), or for expenses or charges" (expensas), &c., Ll. 5. and 10. tit. 3. P. 5., [Ll. 5. and 10. tit. 3. P. 5.] excepting in the four cases adduced by L. 6. tit. 3. P. 5. [L. 6. tit. 3. P. 5.] 2d, That the judicial depositary must not return the thing until sentence shall have been given, and the suit terminated,12 L. 5. tit. 3. P. 5. [L. 5. tit. 3. P. 5.] 3d, That if a thing be deposited in a church, monastery, &c., with the consent of the superior, the whole body remains bound to restore the deposit, L. 7. tit. 3. P. 5. [L. 7. tit. 3. P. 5.]

10

Cap. 2. In order to understand the third principle, and every thing relating to the obligation arising from damage or injury (daño), in other contracts we have thought fit to explain in this place the various species of fault (culpa) whence this damage may result.

Damage or injury may be caused through malice13 (malicia), or through negligence1 and little care1s (poco cuidado), or finally, by a supernatural event which we cannot prevent. To the first, the laws of the Partidas give the appellation of fraud (engaño), Prol. del. tit. 16. P. 7., to the second that of fault (culpa), L. 3. tit. 3. P. 5. [L. 3. tit. 3. P. 5.]; and to the third, accident (ocasion),16 L. 11. tit. 33. P. 7. vide Prol. tit. 15. P. 7. [L. 11. tit. 33. P. 7.] In all contracts, parties are first responsible for all damage caused to the thing, through

• Palacios observes, that L. 2. tit. 3. P. 5. does not compare nor give the title of mutuo, to a deposit, in which the depositario might receive any reward for the custody of the property, but that of letting loguero or locacion.

But he cannot retain the deposit as a pledge or security, for the payment of such expenses. See L. 10. tit. 3. P. 5. cited, and what follows in the text.

Unless the deposit should be of things which may be counted, weighed, or measured, and should be delivered by reckoning, weight, or measure; for, in this case, the dominion would pass to the depositary; but he would be obliged to return the money, coin, &c. deposited, or the like quantity, &c. In other words, that he would not be obliged to return the identical pieces of money, or particles of corn, but their equivalent; but it seems it would be otherwise, if the money and other things were delivered, sealed, or locked up, which would amount to a tacit prohibition of its use, and a direction to preserve it unmixed with the depositary's property, L. 2. tit. 3. P. 5. and Greg. Lop. Gl. 4. on said law. The doctrine in this law might give rise to important questions and the considerations it suggests are worthy of attention. See 7 tom. Feb. Adic. P. 2. lib. 3. ch. 3. § 2. p. 101, n. 200. and 201.

10 For a debt, &c. due to him by the person who deposited.

11 See note 8.

12 Or the parties may have agreed. See L. 5. tit. 3. P. 5., cited. 13 That is fraud.

14 Lata culpa.

15 Levis culpa.

16 Casus fortuitus.

malice or fraud (maliciosamente), it not being allowed to covenant to the contrary. 2d, In those contracts in which we look principally for integrity of intention (la lealtad del animo), this fraud ought to be visited with the punishment of infamy," L. 8. tit. 3. P. 5. [L. 8. tit. 3. P. 5.]

Accident (ocasion) or caso fortuitó, which might cause any damage (daño), does not produce any obligation to pay or make good the damage, unless an agreement should have been made to the contrary, 18 L. 3. tit. 2. P. 5., ad fin.; and L. 4. tit. 3. P. 5. [L. 3. tit. 2. and L. 4. tit. 3. P. 5.]

Fault or negligence (culpa) is most small (levissima), small (levis), or great (lata): culpa levissima, means that a person did not observe that care in keeping (aliñur), and preserving the thing which another of good sense or understanding (buen seso) would have taken if he had charge of it, L. 11. tit. 33. P. 7. [L. 11. tit. 33. P. 7.] We [169] say that the thing is lost or injured through culpa leve when the person who has it in custody does not take all that care of it which an attentive and discreet person would, L. 3. tit. 3. P. 5. [L. 3. tit. 3. P. 5.] Culpa lata, as it consists of a gross and as it were inexcusable negligence, for which reason it is called in L. 11. tit. 33. P. 7. [L. 11. tit. 33. P. 4.], great and manifest fault, is compared to fraud; and thus much is to be understood from L. 2. tit. 2. P. 5. ad fin. [L. 2. tit. 2. P. 5.], when it makes use of these words, "unless it were allowed to be injured through fraud (enganosamente),"'19

In order to determine and estimate the obligation which arises from each of these kinds of fault, regard must be had to the advantage (utilidad) or injury (perjuicio) which each of the contracting parties receives from the thing by reason of the contract; which doctrine is founded on these two rules, 1st, That by the contract advantageous only to one party, the person to whom it is so advantageous, is liable or bound for "culpa levissima," the other for only "culpa lata, 6 engaño." 2d, That if the advantage is equal to both parties, both are liable or bound for " dolo y culpa leve."20

17 See in what case, by L. 8. tit. 3. P. 5. cited.

18 Sce the other excepted cases mentioned in L. 4. tit. 3. P. 5., which are, if the depositario should have delayed or refused, on request, &c. is understood, to deliver the thing deposited; or should have, by his conduct, contributed to, or given cause for, the loss; or if the deposit should have been principally beneficial to the depositario. And see also L. 3. tit. 2. P. 5., cited; which last, however, is not applicable to the case of loan (commodatum).

19 See Greg. Lop. Gl. 9. L. 2. tit. 2. P. 5.

20 Palacios observes on this, that fraud (dolo) is extended to all contracts; and also, culpa lata; when the advantage is only with him who gives or deposits the thing, the receiver is answerable for culpa lata; when the advantage is only with the receiver, he is answerable for culpa levissima; and when the advantage is mutual, the party blameable is answerable for culpa leve, and he refers to L. 2. tit. 6. P. 5., which does not apply; but it is supposed this law is erroneously cited for L. 2. tit. 2. P. 5. He adds that, accident or unforeseen events, commonly called casos fortuitos, do not extend to, or induce liability in, any contract. This general position, laid down by the learned Professor, does not exclude a party from protecting himself against the consequences of such accidents by special covenant, as mentioned in L. 4. tit. 3. P. 5., and as in the contract of

Taking this for granted, we deduce from the third principle, 1st, That, as the fidelity or integrity (leallad) of the depositario, consists in his taking care (guardur) of the thing from which he derives no advantage, he is not liable to pay the damage if it should be lost or injured through "culpa leve" except the contrary was agreed on, or it was deposited at his own instance or request, or that he receives interest or remuneration" for the custody or care of it, L. 3. tit. 3. P. 5. [L. 3. tit. 3. P. 5.] 2d, That much less will he be obliged to pay or make good the injury caused by caso fortuito, unless he should have fallen into delay or demurrage, by deferring or withholding the delivery of the thing, L. 4. tit. 3. P. 5. [L. 4. tit. 3. P. 5.] 3d, That if a person to whose charge a thing should be committed by way of miserable deposit, should refuse to keep it, he must pay double its amount or value, upon the truth being proved; and the depositario of a simple deposit will be rendered infamous, and shall be obliged to restore the deposit, and make good the loss (perjuicios), damage (daños) &c. to be estimated by the oath of the person depositing, and settled by the authority of the judge, L. 8. tit. 3. P. 5. [L. 8. tit. 3. P. 5.]

As to what relates to judicial deposit, it is to be observed, 1st, That in the audiencias and courts of justice, (juzgados,) there ought to be kept a book, in which deposits are to be enrolled, Lib. 23. tit. 2. lib. 2. Rec 23 2d, That the depositario should render accounts annually to the judges, Aut. 21. tit. 14. lib. 2. Rec. [Nota 8. tit. 14. lib. 4. Nov. Rec.]

Sequestration (el sequestro) belongs to the subject of suits [170] or actions, (al tratado de juicios,) as appears from Tit. 9. P. 3. [Tit. 9. P. 3.]

Cap. 3. The third contract advantageous to only one party is loan, (prestamo,) which is a sort of contract that men make with one another, some lending to others their property when they have occasion or necessity for it, L. 1. tit. 1. P. 5. [L. 1. tit. 1. P. 5.] This loan is either made gratuitously, or on the condition of a certain price being paid for its use.25 That which is gratuitous, is either of things which are weighed, measured, or counted, which is called mutuo; or it is of things which cannot be weighed nor counted, for a certain use, and then it is called "commodato," or of things to be

insurance. On the subject and degrees of culpa or neglect, by the civil law, corresponding with what has been said in the text, and observed upon in this note by the learned Professor cited, see Wood's Inst. Civ. Law, book 1. ch. 1. P. 106, 107.

21 See Greg. Lop. Gl. 12. L. 3. tit. 3. P. 5.

22 The Daños here understood, observes Palacios, according to the same law cited in the text, are those which have arisen because the deposit was not returned when demanded, but not on account of what might have been gained by the thing or property deposited. See Gl. 9. Greg. Lop. on L. 8. tit. 3. P. 5., cited.

23 Not in the Nov. Rec.

24 Mutuum. Sce Wood's Inst. Civ. Law, book 3. ch. 1. p. 212. and 213.

25 Palacios says, that loan (prestamo) is by its nature gratuitous, and if a price should' be introduced, it would not be a loan, but some other kind of contract; and refers to L. 1. tit. 2. P. 5.; and § 2. Inst. quib. mod. re cont. oblig.

VOL. I.-23

used at the will or discretion (al arbitrio) of the person who lends, and then it is called precarious loan (precario).

§ 1. Commodato26 is a sort of loan that men make to one another, by which the receiver or borrower is to be benefited for a certain time, L. 1. tit. 2. P. 5. [L. 1. tit. 2. P. 5.] "Commodato" may be made, 1st, Gratuitously, and for the advantage only of the receiver, as when a horse is lent, &c. 2d, For the utility or advantage equally of the lender, which will be always the case when the thing lent serves also the lender. 3d, When the thing is lent more for the honor and satisfaction of the lender than of the borrower, of which kind is the loan of a person's clothes or jewels to the wife, in order to appear more elegant, L. 2. tit. 2. P. 5. [L. 2. tit. 2. P. 5.]

Hence are deduced these three axioms, 1st, That "commodato" is made for a certain and determinate use. 2d, That the same thing which is lent must be returned." 3d, That this contract is, from its nature, advantageous to the borrower. From the first axiom it results, 1st, That until the use or the time appointed for which it was lent be completed, the thing cannot be demanded; because until then the borrower is not obliged to return it, L. 9. tit. 2. P. 5. [L. 9. tit. 2. P. 5.] 2d, That the time or the use for which it was intended having been completed, it ought to be restored to the owner or heir of the lender, without its being allowed to be retained by way of set off, (compensacion,) or on account of debt, L. 4.28 tit. 2. P. 5. [L. 4. tit. 2. P. 5.] 3d, That if it is not restored to the owner, the borrower is liable for the expenses, damages, and prejudices which he occasioned by the delay, L. 9. tit. 2. P. 5. [L. 9. tit. 2. P. 5.]

[171] From the second axiom it arises, 1st, That every thing corporeal or incorporeal, personal or real, belonging to another,29 or to one's self, may be lent, L. 2. tit. 2. P. 5. ad fin. [L. 2. tit. 2. P. 5.] 2d, That the things which are consumed by use are only lent for pomp and luxury, of which kind L. 2. tit. 2. P. 5. [L. 2. tit. 2. P. 5.] makes mention. 3d, That the borrower ought to take more care of the thing lent than of his own, which is called being liable for all

26 See Wood's Inst. Civ. Law, book 3. ch. 1. p. 215.

27 The text says, the thing lent must be returned "en la misme especie :" but it is thus translated, to convey what is thought to be the meaning of the text; for one of the differences between a commodatum and a mutuum, is, it is apprehended, that with regard to commodatum, the same thing is to be returned, and not the same quantity or quality as in a mutuum. See L. 2. tit. 1. P. 5.; and L. 9. tit. 2., ibid. See also the following title in the text; and such is the case by the civil law. See Wood's Inst. C. L., p. 215., cited in the preceding n. 26.

28 It is supposed this law is erroneously cited for L. 9. ibid., before quoted, which con. tains an exception to the general position in the text, in the case of the debt having been contracted for the benefit of the commodatum, after it was lent, and the expense laid out on it was necessary.

29 With such person's authority, must be understood, it is presumed. See L. 2. tit. 1. P. 5. Palacios, in a note on this, observes that, I.. 2. tit. 1. P. 5. only permits the loan by a person of a thing which is his own; and that L. 2. tit. 2. P. 5., does not permit the loan by one of another's property. It is conceived, that the text meant to convey by the expression used, no more than is stated in the first part of this note.

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