Deposit Contract
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ScribdTranslationsDeposit Contract
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ScribdTranslationsDEPOSIT CONTRACT
Concept: Contract by virtue of which one person (depositor) receives
from another (depositor) a thing, with the obligation to keep it and return it. The
The deposit contract is real, as it is perfected by the delivery of the thing;
unilateral, as it only generates obligations for the depositary, except for the
exceptional cases of onerous deposit, which some legislations do not
they recognize.
Legal Definition Art. 1974 Civil Code: By the deposit contract,
a person receives from another something for their safekeeping and preservation, with the
obligation to return it when requested by the depositor or the person in whose favor
it was done or when ordered by the judge.
Characteristics:
Real Contract: Art. 1974, in order for the deposit contract to be perfected,
it is necessary for a person to have received from another a thing for its custody,
guard and reward, so it is concluded that the deposit is a real contract
which is perfected with the delivery of the thing (art. 1588 C.C.)
(see articles 1810 and 1975 of the Civil Code)
Costly Contract: The depository has the right to demand remuneration for
the deposit, unless otherwise agreed (art. 1977 C.C.). By virtue of that, the deposit is
usually a onerous contract, although exceptionally, there is an agreement
expressed between the parties, it can be free of charge.
The ordinary onerousness of the deposit is the consequence of the
commercialization of Civil Law and the fact that there are fewer and fewer
civil deposits are common and deposits are used more frequently
mercantile contracts that are fundamentally onerous.
Bilateral Contract: Given that the deposit is normally costly and only
occasionally free, one is in the presence of a substantially binding contract
bilateral and exceptionally unilateral, since the onerous deposit derives from
benefits borne by both parties. In the case of free deposit and given
that the depositor would have already fulfilled their obligation upon the completion of the
contract, the deposit only generates obligations and benefits on the part of
depositor, thus becoming unilateral (art. 1587 C.C.).
Main or Accessory Contract: The deposit normally exists by itself.
independent of any other legal relationship between the parties and, for this reason, has the quality of
main contract; but it is also possible and usual for the deposit contract to be
accessory of another contract that would have the quality of principal.
But also, it must be taken into account that in many cases, without there being
a true deposit contract, things are handed over for their safekeeping and custody and
Those who receive them assume the rights and obligations of the depositaries. No
there exists in these cases a main or accessory deposit contract, but the
attributes and responsibilities that derive for the depositaries from the contract of
deposit, are applicable to those persons (guardian, tutor, executors,
interveners, etc.)
Trust Contract: (intuito personae). Traditionally, given the
free of charge for the deposit and the non-transferability of rights and obligations of the
the depository, it was considered a contract of trust, as it was
unthinkable that something would be given to a third party for safekeeping, conservation
and restitution, if I did not have full confidence in his honesty and maturity.
Custody Agreement: Here is the essence of the agreement, since its
the purpose is the provision to the depositor of the custody service by the
Depository. This custody service aims to assure the depositor of the return.
or restitution of the deposited item, in the same condition in which it was delivered, with its
fruits and accessories.
Classes of Deposits
Voluntary or Contractual Deposit: It originates from the will
free from the parties and where the depositor voluntarily delivers the thing to
depositor. It is the true contract of deposit. The voluntary deposit or
contractual can be presented in two ways: regular deposit and the deposit
irregular.
Regular Deposit: It is established by delivering things.
individualized and the custodian only has possession of the things, not
cannot use, nor dispose of them and is obliged to return them exactly
same things that he received.
Irregular Deposit: It is characterized by the fact that it is delivered to the depositary.
money or fungible things not individualized, whose ownership is acquired by the
depositor or receiver, who assumes the obligation to return the same amount of the
same species and quality. It is not the fungibility of things that generates the
irregular deposit, but the fact that they have not been individualized,
since if things are identified, we are facing a regular deposit.
Necessary Deposit: It is presented in those situations of force.
major or fortuitous case in which a person is forced to deposit goods in a
third. The typical cases that generate the necessary deposit are fire,
earthquake, the flood, etc.
Judicial Deposit or Seizure: It is one that is created by virtue of a
judicial resolution and the custodian retains, safeguards, and delivers the item, according to
with the instructions given by the judge. (art. 529 CPCyM = the seizure will be carried out
through the dispossession of the thing from the hands of the debtor, to be
delivered in custody to a private individual or to a legally recognized institution.
(see arts. 1997 and 1998 C.C.)
Deposit in General Warehouses: The general warehouses of
Deposits are private companies that have the nature of auxiliary institutions.
of credit, established in the form of a Guatemalan corporation, whose purpose
it is the deposit, the conservation and custody, the handling and distribution, the purchase and
sale on behalf of another of goods or products of national or foreign origin
and the issuance of securities or credit titles. (see arts. 585 and 586 Commercial Code).
Escrow Deposit: Rodolfo Batiza refers to the
establishment of the conditional deposit (escrow), whereby two people who have
opposing interests deliver something to the custodian, who is obliged to safeguard it
guardianship, with the special obligation that once the conditions have been met
foreseen in the corresponding agreement, delivers to whoever has the right to
Hello.
Elements:
Personal Elements: The deposit contract requires consent.
of two people: the depositor and the depository, who must have capacity
legal and express their will without flaws.
The depositary must expressly accept the deposit through the receipt.
of things, in the capacity of deposit. The representatives of minors and incapacitated individuals
They can deposit the assets of their wards without the need for authorization.
judicial, since regular deposit does not transfer ownership, nor normally
it poses any risk to the owner, given the serious and severe responsibility of
restore what weighs on the depository. (arts. 264, 265, 322 C.C. require
judicial authorization
Real Elements: Art. 1974 C.C. is limited to stating that through the
deposit a person receives from another something for their safekeeping and custody, without
mention if that thing should have any characteristic or be of a special type. The
the previous standard can be broadly interpreted in the sense that: a)
the obligation of the custodian is to return it, which implies that it must be restored.
precisely the same asset that was deposited and this prevents the assets
fungibles cannot be the subject of regular deposit, unless they are individualized and
identify; b) given the purpose of the contract, the possibility of is also eliminated.
deposit of incorporeal goods, as these cannot be possessed
physically and the obligations of the depositor could not be fulfilled correctly
regarding these; c) article 1999 of the Civil Code declares the deposit of money null and void
constituted by a person not authorized by law, unless proven otherwise.
Obligations of the custodian
a) obligation to take care of the thing (art. 1974 C.C.)
b) the item must be kept in a suitable place (art. 1978 para 4 and 1938,
1645, 1423, 1426 C.C.)
c) prohibition of moving the thing outside the agreed place (art 1993)
d) prohibition of using the thing (art. 1978 inc. 1, 1884 C.C.
e) the thing must be personally kept and guarded by the
depositor and cannot delegate their task.
f) Provide the necessary funds for proper safekeeping and custody (art.
1981, 1982 A.D.
g) Legal maintenance of the thing (art. 887 and 1979 C.C.)
h) Not registering the things that have been deposited in a chest, box, bundle or
package, closed or sealed (art. 1978 inc. 2)
i) Obligation of return or restitution (art. 1974 C.C.)
j) To 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 para. 3 C.C.)
k) Obligation to compensate for damages and losses caused by their fraud or fault
the depositor suffers (art. 1978 inc 4)
Obligations of the Depositor:
a) payment of the depositary's compensation (art. 1977 C.C.)
b) Reimbursement of expenses for custody and preservation of the thing (art. 1981
C.C.)
c) Compensate for the damages and losses that the deposit causes to the depositary
(art. 1977 C.c.)
d) Run the risk of the thing (art. 1983 C.C.)
e) Exonerate the depositary from the deposit when they can no longer keep it.
with security or without prejudice to him (art. 1996 C.C.)
Termination:
a) For the delivery of the item from the depositor, as soon as he requests it.
(art. 1994 C.C.)
b) Death or incapacity of the depositor (art. 1990 C.C.)
c) The judicial deposit (seizure) ends by judicial resolution that so
declare (arts. 1997 and 1998 C.C.)
d) Finally, the loss of the deposited item also ends the
deposit, although this may give rise to extracontractual liability of the
depositor (art. 1983 C.C.), who would be exempt from it by proving that the thing was
destroyed by fortuitous event or force majeure.