!!Экзамен зачет 2023 год / The Law of Obligations

concept of relative dolus:173 a careless person, too, acts in breach of good faith (= dolo malo), if he is more careless with regard to the depositor's property than with regard to his own.

Gaius—about one generation later—did not adopt this idea, but expressly excluded liability for culpa. For this he advanced an interesting reason: ". . . qui negligenti amico rem custodiendam committit," he said, "de se queri debet".174 If you deposit your property with a friend, you have to take him as he is. 1fhe is a careless person and duly loses your property, you must blame yourself for having trusted so improvident a person. You should have made your choice more prudently. Gaius used this argument to justify the depositary's dolus liability ("negligentiae vero nomine ideo non tenetur, quia . . ."). It is obvious, however, that the same thought can have an entirely different twist: taking the concept of culpa in abstracto as background and alternative (as it had come to be developed by the time of Justinian), it usually has the effect of restricting (rather than extending) the debtor's liability; and indeed, if we look into Justinian's Institutes, we find, for instance, the following reflections concerning the liability of one partner (socius) as against the others:

". . . praevaluit tamen, etiam culpae nomine teneri eum, culpa autem non ad exactissimam diligentiam dirigenda est: sufficit enim talem diligentiam in communibus rebus adhibere socium, qualem suis rebus adhibere solet. nam qui parum diligentem socium sibi adsumit, de se queri (hoc est sibi imputare) debet."175

This is Gaius' argument, revived under different auspices.

(c) The development of diligentia quam in suis

It is very difficult, if not impossible, to extricate the historical development of the distinction between negligence in abstracto (or diligentia diligentis, determined according to the standard of the diligens paterfamilias) and negligence in concreto (or diligentia quam in suis, determined from the point of view of the individual debtor) from thick layers of real or supposed interpolations and scholarly dispute surrounding the concept of culpa in general. It seems that one started evaluating the debtor's behaviour in relative terms, first of all, in situations where somebody in case of peril had saved his own property, but had left to its fate what had been entrusted to him. Under these circumstances he was made responsible, qua dolus, for not being able to restore his creditor's property.176 Thus the idea gained ground that

173Hausmaninger, Festschrift Kaser, p. 268.

174D. 44, 7, 1, 5. Cf-, in nearly the same terms, Inst. Ill, 14, 3 (which has, incidentally, in turn been adopted nearly verbatim by Bracton, as cited by Lord Holt in Coggs v. Bernard (1703) 2 Ld Raym 909 at 914).

175Inst. Ill, 25, 9. Cf. also Gai. D. 17, 2, 72, usually taken to be interpolated.

176Kaser, RPr II, 355; Franz Wieacker, "Haftungsformen des romischen Gesell schaftsrechts", (1934) 54 ZSS 73 sqq. The same idea, incidentally, prevailed in the old Germanic law: the debtor remained liable, if only the bailor's property and not his own as

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the depositor could expect the person to whom he was about to entrust some objects to display the same degree of diligence with regard to them that he would display in any event, i.e. particularly with regard to his own property. In the course of time, this idea was isolated and conceptualized as a specific standard of liability. As such, it had two significant aspects: if the debtor did not display the same diligence that he was used to displaying with regard to his own property, this could hardly be regarded as consistent with the standards of decent and honest behaviour. He was therefore liable, no matter whether he had in actual fact acted fraudulently or whether his act or omission would, in abstracto, have been qualified as gross negligence. On the other hand, however—and, once culpa liability had become established in contractual relationships, more importantly—there was the fact that diligentia quam in suis might just as well entail a relaxation of liability: for if the debtor was not a diligent person generally, how could he be expected to rise to a standard of utmost care, as far as not his own but somebody else's property was concerned? After all, the creditor chose his debtor, and if he chose a frivolous spendthrift, he had to blame himself for any disappointments.

Justinian did, in certain instances, provide for this type of liability. Diligentia quam in suis applied, for instance, in cases of tutela, dos or communio.177 Whether it applied to the contract of depositum also, at least perhaps in certain individual cases, is a matter of dispute.178 There are many texts from which it is abundantly clear that the depositary was liable for dolus (and culpa lata) only.179 But then, what about Cels. D. 16, 3, 32, which, after all, is also part of the Justinianic compilation? Was that merely an oversight? Or did Justinian only want to stress that not to comply with diligentia quam in suis should be regarded, in the case of depositum, as culpa lata or even dolus? Be that as it may, the idea of requiring the standard of diligentia quam in suis from the depositary has commended itself to a broad variety of authors of the ius commune180 and also to modern legislators.181

well had been affected by (e.g.) a fire that had been raging at his place: cf. Planitz, Grundzuge des Deutschen Privatrechts (3rd ed., 1949), p. 162.

177Cf. Ulp. D. 27, 3, 1 pr., Paul. D. 23, 3, 17 pr., Paul. D. 20, 2, 25, 16. For details, see Hausmaninger, Festschrift Kaser, pp. 276 sqq.

178Cf., on the one hand, Kaser, RPr II, p. 355, on the other, De Robertis, Responsabilita contrattuale, pp. 386 sqq. Further Hausmaninger, Festschrift Kaser, p. 282; Hoffmann,

Fahrlassigkeit, p. 8; MacCormack, (1972) 38 SDHl 176 sqq. 179 Cf. e.g. Inst. Ill, 14, 3.

1! Ю Brunnemann, Corumentarius in Pandectas, Lib. XVI, Tit. Ill, ad L. Quod Nerva. 32; Grotius, Inleiding, III, VII, 9; Domat, Les loix civiles. Lib. I, Tit. VII, Sec. Ill, III; Pothier,

Traite du contrat de depot, n. 23; see, too, Story, Bailments, §§ 63 sqq., Hoffmann, Fahrlassigkeit, pp. 154 sqq.

181 For details, see Hausmaninger, Festschrift Baltl, pp. 283 sqq., 286. 293 sqq. He also points out that the concept of diligentia quam in suis has filtered through into English law (via Lord Holt in Coggs v. Bernard, who refers, in this context, to Bracton) and has been employed, though only occasionally, by some American courts.

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3. The gratuitous nature of depositum

Modern German law recognizes one further situation where an increased responsibility is imposed on the depositary: if a remuneration for the custody has been agreed upon, he is to be liable for dolus and culpa (in abstracto).182 Depositum, then, is no longer regarded as necessarily gratuitous.183 The Roman lawyers thought differently. Throughout the classical period, the element of gratuity was maintained as an essential characteristic of depositum. Justinian, too, subscribed to this view. Thus, we read:

"Si vestimcnta servanda balncatori data pcricrunt, si quidem nullam mercedem servandorum vestimentorum accepit, depositi eum teneri et dolum dumtaxat praestare debere puto: quod si accepit, ex conducto."184

This, incidentally, is one of quite a few texts relating directly or indirectly to the public baths (thermae),185 and it provides an indication of their enormous importance in the daily life of the average Roman.186

"T he baths are one of the fairest creations of the Roman E m pire", write s Carcopino;187 "[they] in fact offered the Romans a microcosm of many of the things that make life attractive . . . [At the height of the Empire] the Roman people had contracted the habit of attending the baths daily and spending the greater part of their leisure there."188

For Rome, the Libellus de regionibus urbis Romae gave a total of 856 thermae; in a little provincial town of 15 000 inhabitants such as Timgad there were twelve.189 The baths were usually run by a balneator, an independent contractor, to whom the owner had leased the bath. He exploited the baths on a commercial basis, but the entrance fee charged was very low.190 At the time of Horace, it was a quadrans,

1K2 Cf. § 688 as opposed to § 690 BGB.

1КЗ This is in accordance with old Germanic law: Planitz, op. cit., note 176, p. 162. The same situation prevails in South African law today: Bester, op. cit., note 169, n. 70; cf. also R.H. Christie, "What is a Contract of Depositum", 1981 Zimbabwe LJ 98 sq.

184Ulp. D. 16, 3, 1, 8.

185Cf. e.g. Alf. D. 19, 2, 30. 1; Scaev. D. 32, 35, 3.

Ulpian mentions, among the criteria by which to establish a person's domicile, the place where he goes to the bath: D. 50, 1, 27, 1.

Daily Life, pp. 277, 279, 280. Cf. also Ralph Jackson, Doctors and Diseases in the Roman Empire (1988), pp. 48 sqq.

Not everybody overindulged to the extent of Emperor Commodus, who was said to have taken up to eight baths a day: Scriptores Historiae Augustae, Commodus, 11, 5. For a comprehensive account of Roman baths, their management, financing and staffing, terms and conditions for users (opening hours, the question of mixed bathing), amenities provided, maintenance (fueland water-supply), etc., see Olivia Robinson, "Baths: An Aspect of Roman Local Government Law", in: Sodalitas, Scritti in onore di Antonio Guarino, vol. HI (1984), pp. 1065 sqq.

189 Cf. Michel, Gratuite, p. 27. For further interesting details and anecdotes, see Carcopino, pp. 277 sqq.; Robinson, Scritti Guarino, vol. Ш, pp. 1065 sqq.

190 Nevertheless, it seems to have been a profitable occupation. Juvenal (Satura, VII, 4 sqq.) warns young poets that without the patronage of the emperor, they might be forced by the threat of imminent starvation to take up some prosaic occupation, such as that of bathkeeping. In the later empire, the costs of running baths rose; fuel was the heaviest charge. The provision of firewood became one of the regular munera civilia (cf. also the

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i.e. a quarter of an as.191 Thus, the baths were accessible even to the poor. Nevertheless, it was a much appreciated and very popular act of liberality if a magistrate marked his term of office by undertaking to pay all entrance fees for a certain period of time,192 or if a wealthy Roman in his will made his private bathing hall available to the general public for free.l93 This might have happened in the case discussed by Ulpianus; and where the entrance was free, it is more than likely that one did not have to pay for leaving one's clothes in the custody of the balneator or his changing-room assistant (the capsarius) either.194 Under these circumstances, the contract could qualify as depositum; liability was confined to dolus (or dolus and culpa lata). If, on the other hand, a fee had been charged, the balneator's liability was increased to custodia (thus, the result is, mutatis mutandis, the same as in modern law), but not under the rules relating to depositum. We would be dealing with a different type of contract, in this case locatio conductio (operis). Whenever a remuneration had been promised, the contract, according to Roman law, could not be depositum.195 This is confirmed by a variety of texts, for instance Ulp. D. 16, 3, 1, 9:

"Si quis servum custodiendum coniecerit forte in pistrinum, si quidem merces intervenu custodiae, puto esse actionem adversus pistrinarium ex conducto: . . . si vero nihil aliud quam cibaria praestabat nee de operis quicquam convenit, depositi actio est."

Somebody had given his slave, probably in order to penalize him, into the custody of a baker (who would make him work in his mill).196 As long as the master of the slave paid for his maintenance only (cibaria), the contract was one of deposit. As soon as he remunerated the miller, however, the contract fell into the category of locatio conductio.

4. "Deposit" of immovables?

If the BGB did not follow Roman law regarding the question of gratuitousness, it took a more traditional stand in another question also concerning the scope of application of depositum. According to Roman

legacy of wood to provide fuel for the baths in Ulp. D. 32, 55, 3), and the contractors were granted an additional income from the salt revenues. Cf. Robinson, Scritti Guarino, vol. Ill, pp. 1070 sqq.

191Horatius, Saturae, I, 3, 137. Entrance for children was freeAccording to the lex metalli Vipascensis, the entrance fee was i as; and double the amount for women. An as was a bronze coin worth a quarter of a sesterce. An average family of three persons, in the second half of the 1st century A.D. could live on about 25 as per day. One as, according to Pompeian graffiti, bought one quart of local wine or a plate, 2 as a small fish. For further details, see Etienne, Pompeji, pp. 215 sqq.

192Cf. e.g. Alf, D. 19, 2, 30, 1,

193Cf. e.g. Scaev. D. 32, 35, 3.

194Cf. Michel, Gratuite, p. 57.

195This was the position in classical law and again under Justinian. In post-classical vulgar

law, the distinctions between the various contracts had become blurred and lucrative deposita were recognized. Cf. Codex Euridanus 278 and Ulp. D. 13, 6, 5, 2; Ulp. D. 47, 5, 2, 23, both interpolated; see Levy, Obligationenrecht, pp. 173 sqq.

196 Michel, Gratuite, p. 58.

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law, this type of transaction was confined to movable property. "Depositum est, quod custodiendum alicui datum est . . ."; and the word "depositum" referred to "[id] quod ponitur".197 In this very literal sense, land can hardly be said to be taken and put into somebody's custody. Based on lexical meaning and etymology, such an argument on its own, of course, carries only a limited degree of persuasiveness. It has therefore been suggested that the Roman lawyers did not recognize the "deposit" of immovables, because there was no need for it: if I ask a friend to look after and watch over my house while I am away, our relationship can be classified, according to the individual circumstances of the case, as precarium, commodatum or habitatio gratuita (if the friend is actually staying in the house); or else as a mandate (mandatum).198 Be that as it may, the question was disputed in the ius commune,199 and the opinion that immovable property can be "deposited" even found its way into some codifications200 and into South African law.201 Yet, the BGB has codified the pandectist doctrine when it says: "By a contract of deposit

the depositary is bound to keep in his custody a movable delivered to him by the depositor."202

5.The depositum irregulare

(a)The problem of the deposit of money

"Praeterea et is, apud quern res aliqua deponitur, re obligatur et actione depositi, qui et ipse de ea re quam accepit restituenda tenetur":203 just like the commodatary, but unlike the borrower under a contract of mutuum, the depositary had to restore the very same object(s) that had been entrusted to him. In this form, depositum can be found among the earliest institutions not only of Roman but of most of the ancient

197Ulp. D. 16, 3, 1 pr. In layman's language the word "commendare" was used (cf. e.g. Ulp. D. 50, 16, 186: "Commendare nihil aliud est quam deponere"). In post-classical times, this term totally superseded classical terminology: cf. Levy, Obligationenrecht, pp. 166 sqq. Justinian reintroduced the classical technical term. On the institution of commendatio in the Middle Ages and its Greek (and Roman) antecedents, see Paolo Frezza, "Commendatio nelle carte notarili dell'alto Medio Evo", (1969) 20 Iura 177 sqq.

198Michel, Gratuite, pp. 71 sq.; also "Motive", in: Mugdan, vol. II, p. 319; Gluck,

vol. 15, pp. 146 sqq.

199 Cf. Voet, Commentarius ad Pandectas, Lib. XVI, Tit. Ill, III ("Deponi possunt res omnes, . . . sive mobiles sive immobiles; cum et immobilium custodia alten tradi queat; et commendari, quae commendatio depositio est"); Van Leeuwen, Censura Forensis, Pars I, Lib. IV, Cap. VI, 3; on the other hand, Grotius, Inleiding, III, VII, 5; Gluck, vol. 15, pp. 146 sqq. Cf. further Vinnius, Institutiones, Lib. Ill, Tit. XV (sub de deposito), 1; Pothier, Traite du contrat de depot, n. 3; Story, Bailments, § 51.

200§§ 90, 91 I 14 PrALR; § 960 ABGB.

201Bester, op. cit., note 169, n. 69.

202§ 688 BGB and Windscheid/Kipp, § 377.

203inst. III, 14, 3.

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laws.204 At all times, and particularly in less refined and rather insecure societies, people have felt the need to leave their valuables with a trustworthy friend in times of emergency, when marching out for war, and in similar situations.205 Of course, they did not want to deposit only jewellery or valuable pieces of equipment and the like, but also fungible objects, especially money. This they could do and did by somehow individualizing the specific sum that was to be the object of the deposit: for instance, by depositing "viginti nummorum saccum"206 or "pecuniam signatam".207 Under these circumstances, as in all other cases of deposit, the depositor remained the owner;208 the depositary committed theft if he used the money. However, in the case of money, the depositor does not normally have a special interest in getting back the very same coins. The specific characteristic of money is that it represents a certain value and hence one could argue that it is not really a corpus but a quantitas that has been deposited.204 Relying not so much on the honesty and trustworthiness, but on the solvency of the depositary, the depositor is primarily interested in getting back eadem quantitas or "tantundem",210 i.e. a sum of money of the same (nominal) value that he has given. The depositary would then be allowed to use the money; he would become owner, and as such he would naturally carry the risk of the money getting lost,21' One might ask whether he should not possibly be required to pay some interest in return for being allowed to use the money.

(b) Depositum and mutuum

It is obvious, on the one hand, that such a transaction would go beyond the normal scope and framework of depositum: it would be a contractus "[qui] egreditur . . . depositi notissimos terminos".212 However, there is a definite resemblance to mutuum. In both cases we are dealing with the handing over of a sum of money, involving both a transfer of ownership and an undertaking on the part of the recipient to return the same sum. Thus, one might be inclined to apply the rules pertaining to mutuum to this kind of deposit and to allow the "depositary" to avail himself of the condictio. The condictio being

204 Cf., for example, §§ 120-126 Codex Hammurabi; Exodus 22, 9. For an interesting analysis of the ancient Mesopotamian law and practice, see Raymond Bogaert, Les origines antiques de la banque de depot (1966). pp. 41 sqq.

Cf. e . g. the story re late d by He rodotus, H isio riae , Lib. VI , Cap. 86.

206Paul . D . 47, 2, 21, 1.

207Af r. D . 46, 3, 3 9.

208As to the vindicatio nummorum, se e Hannu T apani Klami, Mu tua ma gis vid etu r quam

deposita (1969), pp. 174 sqq.; M ax Kase r, "D as Ge ld im romische n Sache nre cht", ( 1961) 29

TR 173 sqq.

209 Cf. e.g. Gluck, vol. 15, p. 157. 21(1 Pap. D. 16, 3, 25, 1.

21^Cf. e.g. Paul. Coll. X, VII, 9.

2li Pap. D. 16, 3, 24. Cf. also Paul. D. 16 3, 26, 1 (". . . eum contractum de quo quaeritur depositae pecuniae modum excedere").

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stricti iuris, a practical disadvantage would then appear to be that the judge would not be empowered to award interest to the depositor (unless, of course, a special stipulation had been entered into).

On the other hand, there was one marked difference between the two transactions, relating, as it were, not so much to (legal) technicalities but to the fundamental balance of interest involved: a contract of mutuum was made in the interest of the borrower, whereas even in this irregular kind of deposit, it was primarily the depositor who was interested in entrusting his capital to another person. The advantage the depositary derived from the transaction was only incidental and did not motivate the contract. Hence, one could argue that if this type of transaction was to be accommodated within the contractual scheme of Roman law, it should have been squeezed into the niche of depositum. The actio depositi would have offered the flexibility (on account of its bona fide clause) to award interest in appropriate cases — for instance, where there had been an agreement between the parties to this effect.

(c) From condictio to actio depositi

What exactly the attitude of the Roman lawyers was to this question is not at all easy to make out. No clear picture emerges from the texts contained in the Digest: some of them contain contradictions,213 and suspicions of interpolations abound.214 This kind of irregular deposit has been called one of the most controversial institutions in the science of Roman law215—and it may well be asked whether one can, in fact, speak of an "institution", as this term suggests that it was more clearly defined than it actually seems to have been at any time in the development of Roman law.216 Only a few things are reasonably clear. It was from the Hellenistic East that this type of transaction made its way into Roman business life.217 There the 77сфакатаФт|кті contract provided for the restoration of deposited things in genere218 and was a convenient legal tool to accommodate the flourishing business of deposit banking.219 Whatever banking business there was in the Roman Republic seems to have been mostly run by Greeks,220 and the Greek

213Cf. e.g. Paul. D. 16, 3, 26, 1.

214For a very radical view, see Carlo Longo, "Appunti sul deposito irregolare", (1906) 18 BIDR 121 sqq.'; Schulz, CRL, pp. 519 sqq.

215Wieslaw Litewski, "Le depot irregulier", (1974) 21 RIDA 215.

216William M. Gordon, "Observations on 'depositum irregulare'", in: Studi in onore di Amaido Biscardi, vol. III (1982). pp. 363 sqq.

217Cf., for example, Paolo Frczza, Паракатаотікті, in: Symbolae Raphaeli Taubenschlag, vol. I (1956), pp. 139 sqq.; Hannu Tapani Klami, Depositum und Параката-&тікті, in: Iuris Professio, Festgabe fur Max Kaser (1986), pp. 89 sqq. Cf. also, generally, Wieacker, RR, pp. 347 sqq.

318Arnold Ehrhardt, "Parakatatheke", (1958) 75 ZSS 32 sqq.; Dieter Simon, "Quasi-

ПАРАКАТАѲНКН", (1965) 82 ZSS 39 sqq.

2 i g Raymond Bogaert, Banque et banquiers dans les cites grecques (Leiden, 1968).

220 Fritz Pringshcim, "Zum romischen Bankwesen", in: Gesammelte Abhandlungen, vol. II (1961), pp. 114 sqq.; Laum, Bankwesen, RE Suppl., vol. IV, pp. 68 sqq.

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word "trapezitae" was used, at least occasionally, for the money dealers on the Forum Romanum.221 Large-scale banking institutions, however, whose function it could have been to collect deposits in order to be able to finance investments, do not seem to have existed in Rome.222 Hence, it appears not to have been perceived, either here, or in other spheres,223 as an economic necessity to receive and incorporate into Roman law a transaction along the lines of the тгарако:тайтікіг|. Conservative and possibly slightly supercilious as far as the value of legal institutions from the provinces was concerned,224 the classical Roman lawyers were content, at first, to make available the standard remedy of condictio and thus to accommodate the new practice within the framework of the established rules of mutuum.225 Justinian, on the other hand, was prepared to grant the actio depositi and to oblige the depositary,

according to the requirements of bona fides, to compensate the depositor for the use that he was allowed to make of his money.226 As

to when and how this transition occurred, one reads many divergent accounts.227 It is not unlikely, though, that the recognition of this special contract of deposit goes back to certain jurists of the late classical period.228 The continental ius commune has retained this institution

221Cf. e.g. C. 12, 57, 12, 3 and Ludwig Mitteis, "Trapezitika", (1898) 19 ZSS 198 sqq. Tp<xffe?a was the word for the table on which the money was spread out. On the activities and the social status of the Roman nummularu and argentarii (and on the difference between these two professions), see the detailed analysis by Alfons Burge, "Fiktion und Wirklichkeit: Soziale und rechtliche Strukturen des romischen Bankwesens", (1987) 104 ZSS 467 sqq., 476 sqq.; cf. also Frier, Romati Jurists, pp. 7 sqq. ("A gentleman did not willingly pursue banking as a profession").

222De Martino, Wirtschaftsgeschichte, pp. 174 sqq.; Burge, (1987) 104 ZSS 465 sqq., 509 sqq. Unlike their Greek counterparts, the Roman temples did not fulfil the function of banking or credit institutions. Cf. e.g. Benjamin Bromberg, "Temple Banking in Rome", (1939-40) 10 The Economic History Review 128 sqq. For an instructive example of the business of an average "banker" in the 1st century A.D. (L. Caecilius Iucundus), see Etienne, Pompeji, pp. 172 sqq.; for further details Burge, (1987) 104 ZSS Alb sqq.

323Many but not all the cases of depositum irregulare discussed in the Digest concern

banking relationships; cf. Litewski, (1974) 21 RIDA 224, but also Gordon, Studi Biscardi, vol. HI, pp. 364 sqq.

224 Roger Vigneron, "Resistance du Droit romain aux influences hellenistiques: le cas du depot irregulier", (1984) 31 RIDA 307 sqq.

225Ulp. D. 12, 1, 10; Ulp. D. 16, 3, 1, 34; Ulp. D. 12, 1, 9, 9; Paul. Coll. X, VII, 9; on these texts, see, most recently, Burge, (1987) 104 ZSS 548 sqq.

226Especially where the parties had agreed on interest by way of a formless pactum (cf. Pap. D. 16, 3, 24 in fine; Paul. D. 16, 3. 26, 1), but also in other cases (cf. Scaev. D. 16, 3,

28:"respondi deberi ex bonae fidei iudicio usuras, sive percepit sive pecunia in re sua usus est") Cf. further Klami, op. cit., note 208, pp. 118 sqq.; Litewski, (1975) 22 RIDA 304 sqq.; Gordon, Studi Biscardi, vol. III, pp. 369 sqq. ; Honsell/Mayer-Maly/Selb, pp. 303 sq. ; Burge, (1987) 104 ZSS 536 sqq., 542 sqq. As to the law of Justinian in general, see Maschi, Contratti reali, pp. 390 sqq.

227The first modern (critical) monograph was that of Theodor Niemeyer, Depositum irregulare (1898). For an overview and critical discussion of the quite formidable amount of literature, see Klami, Mutua magis i/idetur quam deposita (1969); Gandolfi, op. cit., note 135, pp. 149 sqq.; Litewski, (1974) 21 RIDA 215 sqq. and (1975) 22 RIDA 279 sqq.

228Cf. e.g. Kaser, RPr I, p. 536; Vigneron, (1984) 32 RIDA 307 sqq.; Burge, (1987) 104 ZSS 536 sqq., 552 sqq.; contra: Klami, Festgabe Kaser, pp. 89 sqq.

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under the name of "depositum irregulare".229 Usually, at least in more modern times, the rules of deposit are applied;230 and, indeed, in most European languages money given to a bank is to this day called a

deposit. The irregular deposit has found its way into the codifications, as for instance § 700 BGB,231 and provides the legal basis for the

modern current or giro account.232

6. Conventional sequestration

"Licet deponere tarn plures quam unus possunt, attamen apud sequestrem non nisi plures deponere possunt",233 we are informed by Florentinus: in any deposit there can be one or several depositors. But there was one special situation where the depositary necessarily kept the object for two {or more) parties: the depositum in sequestre.234 In D. 50, 16, 110 we find the following definition: "'Sequester' dicitur, apud quem plures eandem rem, de qua controversia est deposuerunt."235 Etymologically, a sequester is a person who has no interest, one who stands aside (secus) and hence is impartial.236 His position differed from that of a normal depositary in one important respect:

229Coined, apparently, by the commentator Jason de Mayno (1435-1519): cf. Niemeyer, op. cit., note 227, p. 110.

230Cf., for example, Gluck, vol. 15, pp. 139, 157 sqq.; Vangerow, Pandekten, § 630; Windscheid/Kipp, § 379. For a contrary view, see e.g. Ex parte Smith 1940 OPD 120 at 126 sq.

231The fathers of the BGB, however, deviated from what they perceived to be the Roman law (and thus, in reality, returned to the position in classical Roman law) by treating the transaction as a loan: "if fungibles are deposited in such manner that the ownership is to pass to the depositary, and he is to be bound to return things of the same kind, quality and quantity, the provisions relating to loan for consumption apply. . . . " Cf. also §§ 83, 84 I 14 PrALR; differently, artt. 484, 445 OR. The code civil is silent on this point (adopting, probably, the opinion of Pothier, Traite du contrat de depot, n. 83, that Іп modem law there is no practical difference between the two views).

232On the renaissance of deposit banking in the 12th century, see A.P. Usher, "The Origins of Banking: the Primitive Bank of Deposit, 1200-1600", (1932-34) 4 The Economic History Review 399 sqq.; on the relationship between medieval banking and banking practice in antiquity, see Raymond Bogaert, Les origines antiques de la banque de depot (1966), pp. 159 sqq. On the history of deposit banking in general, see Endemann, Studien, vol. I, pp. 423

sqq.

233D. 16, 3, 17 pr.

234For details, see Pothier, Traite du contrat de depot, nn. 90 sqq. ; Vincenzo Arangio-Ruiz, "Studi sulla dottrina romana del sequescro", in: Scritti di diritto romano, vol. I (1974), pp. 59 sqq., 89 sqq.; Gerardo Broggini, "Introduction au sequester", in: Melanges Philippe Meylan, vol. I (1963), pp. 43 sqq.; Litewski, Studien, op. cit., note 141, pp. 47 sqq. Cf. also Maschi, Contratti reali, pp. 408 sqq. (according to whom only Justinian regarded the conventional sequestration as a case of deposit. This view is based on excessive textual criticism).

5 Cf. also Paul. D. 16, 3, 6: "Proprie autem in sequestre est depositum, quod a pluribus in solidum certa condicione custodiendum reddendumque traditur."

236 Cf. Heumann/Seckel, p. 535; Windscheid/Kipp, § 380, n. 2. For the Romans, the word was derived from "sequi" (cf. e.g. Mod. D. 50, 16, 110 and Broggini, Melanges Meylan, p. 54).

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"Rci depositae proprietas apud deponcntem manet: sed et possessio, nisi apud sequestrem deposita esc: nam turn demum sequester possidet: id enim agitur ea depositione, ut neutrius possessioni id tempus procedat."237

It is not difficult to see the reason for this distinction. Where two parties had a dispute over a particular object, there was always the danger that, in the course of the dispute, one of the parties (the one in possession of the disputed object) might acquire ownership by usucapio. The period for usucaption was short in Roman law, and not even the commencement of legal proceedings had any influence on its running. Bona fides was required only at the time of obtaining possession—mala fides superveniens non nocet. Hence it was imperative that the object be given to a third party, not involved in the dispute, until the issue had been settled. It would, however, have frustrated the whole object of this exercise if this third party had not been considered as the possessor; otherwise the period of usucaption would still have run in favour of one of the parties. The sequester was bound to return the thing to the person in whose favour the dispute had been decided; the latter could avail himself of a special actio (depositi) sequestraria.238

Today, this type of conventional sequestration has largely sunk into oblivion; the German Code does not even mention it any more,239 The period of usucaption is ten years; judicial enforcement of a claim averring title over the thing interrupts this period, and mala fides superveniens non nocet has (under the influence of canon law) long since been converted into its opposite.

III. PIGNUS

1. The nature of pignus

"Creditor quoque, qui pignus accepit, re tenetur: qui et ipse de ea ipsa re quam accepit restituenda tenetur."240 The fourth of the real contracts was pignus and it entailed the handing over of a thing in order to secure a debt. Obviously the very same thing had to be restored by the creditor/pledgee to the pledgor once this underlying debt had been discharged (or otherwise extinguished). We can be fairly brief in our discussion; for the most important aspect of pignus was that it gave rise to a ius in rem, a (limited) real right in the property owned by the pledgor. Pignus was (and is) the paradigm of real security and as such it falls outside the ambit of our investigation.241 In the present context

237 Flor. D. 16, 3, 17, 1; Litewski, Studien, op. cit., note 141, pp. 71 sqq. 23Я Cf., for example, Ulp. D. 16,3,5, l;Pomp. D. 16,3, 12, 2; Litewski, Studien, op. cit., note 141, pp. 78 sqq.

romischen Rechts, 2 vols. (1860, 1864); Rabel, Grundzuge, pp. 157 sqq.; Rodger J. Goebel,

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