Personal elements

The custodian who will safeguard the asset.

The depositor who is the owner of the asset to be safeguarded,

It should be mentioned that the depositor will deliver the item, and that

deposit can be extrajudicial.

Essential elements

The consent that is the manifestation of the will of

to keep or safeguard the assets.

The object that consists of the items given in custody.

Elements of validity.

It is the legality of the object, the capacity of the parties to be

subjects of rights and obligations and the way it will be expressed

the contract shall be in accordance with what the law requires, and there must exist the

absence of defects in consent.

htp://bufetejuridicoyasociados.com.gt/elementtos-del-contratof-the-depositto/
Personal:
Depositor who delivers the item and depository who receives and safeguards it. No requirement is asked.

a special ability to enter into the contract nor does one want to be the owner of the thing
deposited. Minors can celebrate it. Art. 1976 c.c.
Real estate: the objects of that contract can be things, tangible assets, rights.
They are not subject to custody, in terms of tangible matters. If it concerns goods and real estate,
It is a contract for custody and surveillance.

Formalities: the law does not require any special formalities for its celebration.

Chapter 20:
The deposit
Concept: Contract by which one person (depositor) receives from another
(depositor) one thing, with the obligation to preserve it and return it. The contract of
the deposit is real, as it is perfected by the delivery of the thing; unilateral, as it
There are obligations arising only for the depositary, except in exceptional cases of
onerous deposit, which some legislations do not recognize.

By the deposit contract, one person receives from another something for their
storage and conservation, with the obligation to return it when requested by the depositor or the
person in whose favor it was made or when ordered by the judge.

Sánchez Medal defines the deposit contract as the contract by which the depositary
is obliged to the depositor to receive a movable or immovable thing that they entrust
to keep it for return individually when requested by the depositor.

Characteristics:
Real Contract: Art. 1974, for the deposit contract to be perfected, it is necessary
that a person has received from another a thing for its custody, protection, and compensation,
so it is concluded that the deposit is a real contract that is perfected with the
delivery of the thing (art. 1588 C.C.)

(see arts. 1810 and 1975 C.C.)

Gratuitous Contract: The depositor has the right to demand compensation for the deposit.
unless otherwise agreed (art. 1977 C.C.). By virtue of that, the deposit is normally a
onerous contract, although exceptionally, there being an express agreement between the parties,
it can be free.

The ordinary onerousness of the deposit is a consequence of the commercialization of Law.

Civil and the fact that civil deposits are becoming less common and are used
more frequently the commercial deposits that are fundamentally onerous.

Bilateral Contract: Given that the deposit is normally onerous and only occasionally
free, if it is in the presence of a substantially bilateral contract and
exceptionally unilateral, as the onerous deposit derives obligations to be fulfilled by
both parties. In the case of the free deposit and given that the depositor would have already
fulfilled with its provision upon the contract being perfected, the deposit only generates
obligations and benefits of the depositor, hence it becomes unilateral (art.
1587 A.D.

Main or Accessory Contract: The deposit normally exists independently of

another legal relationship between the parties and, for that reason, it is considered a main contract; but it is
It is also possible and common for the deposit contract to be accessory to another contract that
it would have the quality of being the main one.

But also, it must be taken into account that in many cases, without there being a true
deposit contract, items are handed over for safekeeping and custody, and those who receive them
they assume the rights and obligations of the depositors. There are no cases of this nature.
main or accessory deposit contract, but the attributions and responsibilities that to
Depositaries derive from the deposit contract, they are applicable to those people.
(guardian, tutor, executors, supervisors, etc.).

Trust Contract: (intuito persona). Traditionally, given the gratuity of

deposit and the non-transferability of the rights and obligations of the depository, it
I considered it a contract of trust, as it was unthinkable that one would be delivered a
what to a third party, for their custody, conservation, and restitution, if there was no full trust
in their honesty and maturity.

Custody Contract: Here is the essence of the contract, as its purpose is the
service provided to the depositor of custody by the custodian. That service
the custodian intends to ensure the return or restitution of the thing to the depositor
deposited, in the same state in which it was delivered, with its fruits and accessories.

Types of Deposits

Voluntary or Contractual Deposit: It originates from the free will of the parties and
where the depositor voluntarily gives the thing to the depositary. It is the true
deposit contract. The voluntary or contractual deposit can be presented in two
regular deposit and irregular deposit.

Regular Deposit: It is constituted by the delivery of identified items and the

The depositary only has possession of the things, cannot use them, nor dispose of them.
and is obligated to return exactly the same things that were received.

Irregular Deposit: It is characterized by the delivery to the depositary of money or things.

fungible items that are not individualized, whose ownership is acquired by the depositor or receiver, who

assume the obligation to restore another of the same kind and quality. It is not the
fungibility of things that generates the irregular deposit, but the fact that the
the same have not been individualized, since if things are identified, we are facing
a regular deposit.
Necessary Deposit: It is presented in situations of force majeure or fortuitous event.
in which a person is forced to deposit assets with a third party. The typical cases
the necessary deposit is generated by fire, earthquake, flood, etc.

Judicial Deposit or Seizure: It is the one created by virtue of a judicial resolution and
the depositary retains, safeguards, and delivers the thing, in accordance with the instructions given to him

by the judge. (art. 529 CPCyM = the seizure will be carried out by the dispossession of
the thing in the hands of the debtor, to be delivered in deposit to an individual or to a
legally recognized institution.

(see arts. 1997 and 1998 C.C.)

Warehouse Deposits: General deposit warehouses are companies

private, which have the nature of auxiliary credit institutions, established in the form
of a Guatemalan corporation, whose purpose is the deposit, conservation and
custody, the handling and distribution, the buying and selling on behalf of others of goods or
products of national or foreign origin and the issuance of securities or credit titles.
(see arts. 585 and 586 of the Civil Code).

Conditional Deposit (escrow): Rodolfo Batiza refers to the institution of the deposit
escrow, by which two people with opposing interests deliver
one thing to the custodian, who undertakes the safekeeping and custody, with the special obligation
that once the conditions set forth in the corresponding agreement are met, it makes
delivered to whoever is entitled to it.

Elements:

Personal Elements: The deposit contract requires the consent of two

parties: the depositor and the depository, who must have legal capacity and express their
will without vices.

The depository must expressly accept the deposit by receiving the items.
in the capacity of a deposit. Representatives of minors and incapacitated individuals can give in

deposit of the assets of their wards, without the need for judicial authorization, since the deposit
Regular is not a transfer of domain, nor does it usually involve any risk for the
owner, given the serious and grave responsibility of restitution that weighs on him/her
depository. (arts. 264, 265, 322 C.C. require judicial authorization)

Real Elements: Art. 1974 C.C. merely indicates that through the deposit a
a person receives from another something for its custody and care, without mentioning whether that thing

it must have some characteristic or be of a special type. The previous standard can be
broadly interpreted in the sense that: a) the obligation of the depositary is to return it
which implies that it must restore precisely the same item that was deposited and this
prevents fungible goods from being subject to regular deposit, unless they
individualize and identify; b) given the purpose of the contract, the also eliminated
possibility of depositing incorporeal goods, as they cannot be possessed
physically and the obligations of the depositor could not be fulfilled correctly in
Regarding these; c) article 1999 of the Civil Code declares null the deposit of money established in

unauthorized person by law, unless proven otherwise.

Obligations of the depositary

a) obligation to guard the thing (art. 1974 C.C.)

b) the thing must be kept in a suitable place (art. 1978 inc 4 and 1938, 1645, 1423, 1426
C.C.)

c) prohibition of transferring the thing outside the agreed place (art 1993)

d) prohibition of using the thing (art. 1978 para. 1, 1884 C.C.

e) the item must be kept and personally guarded by the depositary and cannot
delegate your task.

f) Provide the necessary funds for proper safeguarding and custody (art. 1981, 1982 C.C.)

g) Legal maintenance of the thing (art. 887 and 1979 C.C.)

h) Not to register the items that have been deposited in a box, chest, bundle or package,
closed or sealed (art. 1978 inc. 2)

i) Obligation to return or restitution (art. 1974 Civil Code)

j) Immediately notify the depositor or, if applicable, the judge, of the danger of loss or
deterioration of the deposited item and the measures that must be taken to avoid it (art.
1978 inc. 3 C.C.

k) Obligation to compensate for damages and losses that are suffered due to their wrongdoing or negligence.

depositor (art. 1978 inc 4)

Obligations of the Depositor:

a) payment of the depositary's remuneration (art. 1977 C.C.)

b) Reimbursement of expenses for the custody and preservation of the thing (art. 1981 C.C.)

c) Compensate for the damages and losses that the deposit may cause to the depository (art. 1977 C.c.)

d) To run the risk of the thing (art. 1983 C.C.)

e) Exempt the depositary from the deposit when he can no longer keep it safely
without prejudice to him (art. 1996 C.C.)

Termination:

a) For the delivery of the thing from the depositor, as soon as he requests it (art. 1994 C.C.)

b) Death or incapacity of the depositary (art. 1990 C.C.)

c) The judicial deposit (seizure) ends by a court resolution that declares it so (arts.
1997 and 1998 C.E.
d) Finally, the loss of the deposited item also ends the deposit, although of
there can be extracontractual liability of the depositary (art. 1983 C.C.), who
they would be exonerated from it by proving that the thing was destroyed by an act of God or force majeure.