Deposit contract: what it is and what obligations it creates (articles 1758 to 1786 of the Civil Code)

The deposit is the contract by which one person receives a thing belonging to another with the obligation to keep it safe and to return it. Its regime in Spain is found in articles 1758 to 1786 of the Civil Code, within the book on obligations and contracts, and its structure revolves around two twin duties of the depositary: custody and return.

The legal definition is given by article 1758, in a short and precise formula:

"A deposit is constituted from the moment one receives a thing belonging to another with the obligation to keep it and to return it."

Three features follow from that definition. First, the deposit is a real contract: it is perfected by delivery of the thing, not by mere consent. Second, the depositary acquires neither ownership nor use, but custody. And third, restitution is inherent: the deposit is made in order to return, not to transfer.

Gratuitousness and object

Article 1760 adds the rule of gratuitousness: "The deposit is a gratuitous contract, unless there is an agreement to the contrary." If consideration is agreed for the safekeeping (as with paid left-luggage or professional custody), the contract remains a deposit, but an onerous one, with the consequences that has for the diligence required and for the depositor's obligations. Article 1761 further limits the object: "Only movable things may be the object of a deposit." Immovables therefore fall outside the extrajudicial deposit, although judicial attachment (secuestro) may cover both movable and immovable property (article 1786) and other custody arrangements exist for them.

Voluntary, necessary and judicial deposit

The Code distinguishes three kinds of deposit. The first division is that of article 1762: "The extrajudicial deposit is necessary or voluntary." The voluntary deposit, defined in article 1763, is "that in which delivery is made by the will of the depositor", and the same provision covers the case of the deposit of a disputed thing: two or more persons who believe themselves entitled to the thing may deposit it with a third party, who will deliver it to whom it belongs when the dispute is resolved. It is the figure that orders neutral custody while ownership is decided.

The necessary deposit, regulated in article 1781, arises outside the parties' negotiating will: it is the one made "in compliance with a legal obligation" and the one that takes place "on the occasion of some calamity, such as fire, collapse, looting, shipwreck or other similar events". The necessary depositary cannot escape the burden on the terms the Code provides, and its regime reinforces the protection of the depositor in emergency situations. And the judicial deposit or sequestration, defined by article 1785, "takes place when the attachment or securing of disputed goods is decreed": it is custody ordered by a court within proceedings.

The depositary's obligations

The obligatory core is in article 1766: "The depositary is obliged to keep the thing and to return it, when required, to the depositor, or to his successors, or to the person designated in the contract." Liability for safekeeping and loss is governed by the general rules of obligations, which in practice means the depositary is liable for wilful misconduct and negligence, and that the custody must be of another's thing: with the diligence of a prudent administrator, modulated by whether the contract is gratuitous or onerous.

The prohibition of use is the other capital rule. Article 1767 provides that "the depositary may not make use of the thing deposited without the express permission of the depositor", under penalty of liability for damages. And article 1768 draws the systematic consequence: "When the depositary has permission to make use of the thing deposited, the contract loses the character of a deposit and becomes a loan or commodatum", with the warning that "the permission is not presumed, and its existence must be proven". If the thing may be used, we are no longer before a deposit: the boundary between deposit and commodatum lies precisely in authorised use.

Restitution also has its discipline. Article 1770 orders that "the thing deposited shall be returned with all its products and accessions", and provides a special rule for the deposit of money, to which the provisions on agency in article 1724 apply. Where there are several depositors, article 1772 orders that, if they are not joint creditors and the thing admits division, each may only claim their part; in case of joint credit or indivisibility, articles 1141 and 1142 of the Code govern. And article 1777 resolves a subtle case: "The depositary who through force majeure has lost the thing deposited and received another in its place shall be obliged to deliver the latter to the depositor" (the real subrogation rule that prevents the custodian's enrichment).

Special cases: sealed things, place and time of restitution

The Code regulates practical cases in detail. If the thing is delivered closed and sealed, article 1769 obliges the depositary to return it "in the same condition"; he is liable for damage if the seal or lock was forced through his fault (fault that is presumed, absent proof to the contrary) and, in valuing what was deposited, the depositor's declaration prevails when the forcing is attributable to the depositary and there is no proof to the contrary. It is an evidentiary rule of great force for left-luggage and custody of closed objects.

On the place, article 1774 requires the thing to be taken to the place designated for the return, with the transport costs borne by the depositor; failing designation, the return is made where the thing is located, even if that is not where the deposit was made, provided there was no malice on the depositary's part. On the timing, article 1775 protects the depositor with a mandatory rule: "The deposit must be returned to the depositor upon his demand, even if a period or fixed time for the return has been set in the contract", unless the deposit has been judicially attached in the depositary's possession or he has been notified of a third party's opposition to the restitution or transfer.

Deposit and persons with support measures

The reform carried out by Law 8/2021, of 2 June, reforming civil and procedural legislation for the support of persons with disabilities in the exercise of their legal capacity, left its mark on this contract. Article 1764 provides that "a deposit made by a minor or by a person with a disability without the support measure provided for shall bind the depositary to all the obligations arising from the deposit contract": the lack of support does not free the custodian. Conversely, article 1765 limits the action of one who deposited with a minor (or, in certain cases, with a person with a disability) to the recovery of the thing while it remains in the depositary's possession, or to payment of the amount by which he was enriched.

The necessary deposit in inns

The Code preserves one of its oldest and most graphic figures: article 1783 deems a necessary deposit "that of the effects introduced by travellers in inns and taverns", so that innkeepers and tavern keepers "are liable for them as depositaries" if they were given notice of the effects and the traveller observed the precautions on care and vigilance. Article 1784 extends liability to damage caused by servants, employees or even strangers, with the exception of armed robbery or another force majeure event. The rule, conceived for the nineteenth century, remains the matrix of hoteliers' liability for guests' effects.

The depositor's obligations

The deposit is not a unilateral contract in its burden. Article 1779 obliges the depositor "to reimburse the depositary for the expenses incurred in the preservation of the thing deposited and to indemnify him for all the damages arising from the deposit". To that credit of the depositary corresponds a specific guarantee in article 1780: "The depositary may retain the thing deposited as a pledge until full payment of what is owed to him by reason of the deposit." It is a legal right of retention that shields the custodian's position against the depositor who fails to reimburse.

In practice

The deposit lies behind everyday operations and sophisticated businesses: luggage left-luggage, document custody, the deposit of merchandise, the delivery of a disputed thing to a third party while litigation proceeds, the judicial sequestration of attached assets. The questions the lawyer must ask in a custody case are the ones the Code answers: is there an obligation of safekeeping and restitution, or is use authorised (and then commodatum)? Is it gratuitous or onerous? What happens to the fruits and accessions? And who bears the preservation costs? The answers have been the same since 1889.

Frequently asked questions

What is the difference between deposit and commodatum?

In a deposit, the depositary only keeps and returns; in a commodatum, the borrower may use the thing. If use is authorised, the deposit becomes a loan or commodatum (art. 1768 CC).

Is the deposit gratuitous?

Yes, unless agreed otherwise (art. 1760 CC). If remuneration is agreed, the deposit is onerous and the reciprocal requirements are stricter.

What is a judicial deposit?

The custody of disputed goods decreed by a court, also called sequestration (art. 1785 CC).

Sources

• Civil Code, articles 1758 to 1786 (consolidated text, BOE)