!!Экзамен зачет 2023 год / The Law of Obligations

imperfectly bilateral contract;104 the writers of the ius commune spoke of a contractus bilateralis inaequalis.105

(b) Reimbursement of expenses

What were these specific prerequisites for the actio commodati contraria?106 On the one hand, the borrower could claim reimbursement of expenses that he had incurred in connection with the borrowed object: the costs involved in retrieving a borrowed slave who had run away, or in curing his rather less adventurous companion who had fallen ill.107 However, it was only for such extraordinary incidents that an action could be brought. The ordinary expenses of the preservation of the thing lent had to be borne by the borrower, as a matter of course.108 This applied, for instance in the case of the loan of an animal or of a slave, to the cost of fodder or food respectively.109 After all, it was his contractual duty to preserve and look after the thing properly, and this of necessity involved some expenditure. Only if something had happened that lay beyond the boundaries of his obligation of custodiam praestare could he ask the lender/owner for reimbursement of his impensae necessariae.

On account of such impensae, incidentally, the borrower also had a ius retentionis which enabled him effectively to bar the lender's claim until he had been reimbursed.no If the lender tried to frustrate this right of retention111 by simply taking back his object without further ado, the borrower could bring an actio furti against him—a remedy that was otherwise not available to the borrower against the lender:

"[Ejrgo si ob aliquas impensas, quas in rem commodatam fccisti, retentionem eius habueris, etiam cum ipso domino, si earn subripiat, habebis furti actionem, quia eo casu quasi pignoris loco ea res fuit."112

way of a counterclaim stricto sensu, i.e. only when the actio directs had already been instituted by the lender. For details, see Giuseppe Provera, Contribua alla teoria dei iudicia contraria (1951), pp. 20 sqq.; Fritz Schwarz, "Die Kontrarklagen", (1954) 71 ZSS 189 sqq.

104Kaser, RPr I, p. 528.

105Cf. e.g. Gluck, vol. 4, pp. 285 sqq.

106For details, see Provera, loc. cit., passim and Schwarz, (1954) 71 ZSS 111 sqq.; Pothier, Traite du pret a usage et du precaire, nn. 81 sqq.; Story, Bailments, §§ 273 sqq.

107Gai. D. 13, 6, 18, 2: "Possuni iustae causae intervening ex quibus cum eo qui commodasset agi deberet: veluti de impensis in valetudinem servi factis quaeve post fugam

requirendi reducendique eius causa faetae essent . , ."; Mod. Coll. X, II. 5.

nR Gai. D. 13, 6, 18, 2: ". . . nam cibariorum impensae naturali scilicet ratione ad eum

pertinent, qui utendum accepisset"; Mod. Coll. X, II, 5 in fine. Reason: qui habet commoda ferre debet onera; cf. infra, pp. 290 sq.

109 Cf. also Pothier, Traite du pret a usage et du precaire, n. 81, Story, Bailments, § 256, and, today, § 601 BGB.

Schwarz, (1954) 71 ZSS 127; Alfons Burge, Retentio in romischen Sachenund Obligationenrecht (1979), pp. 176 sqq.

On the ius retentionis in general, see Kaser, RPr 1, pp. 521 sq.; Burge, loc. cit., passim. 112 Paul. D. 47, 2, 15, 2. On this text cf. Rosenthal, (1951) 68 ZSS 251 sq.; Schwarz, (1954) 71 ZSS 124 sq.

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(c) Recovery of damages

On the other hand, the actio commodati contraria could be used to claim damages. Well known is the following example given by Gaius: "Item qui sciens vasa vitiosa commodavit, si ibi infusum vinum vel oleum corruptum effusumve est, condemnandus eo nomine est."113 The vessels that had been lent proved to be defective, so that the wine or oil contained in them was spoilt or spilt. Another case in point is

Paul. D. 13, 6, 17, 3; this text concerns the loan of decayed timber which was to be used for propping up a block of flats.114 It is to be

noted that the lender was liable only if he had known about the defects in the article lent ("sciens"). As it was the borrower and not the lender who was interested in and gained the advantage from the contract, it would have been unreasonable to subject the latter to strict and extensive liabilities. The standard of diligence required of the lender thus stood in a relationship of inverse reciprocity to that of the borrower: entirely in accordance with the principle of utility. The scientia requirement is stressed in other texts too, for example in Paul. D. 13, 6, 22. Here a slave had been handed over by way of loan and had subsequently stolen something from the borrower. Of course, the

owner of the slave was under noxal liability—he could either pay what was due under the actio furti or surrender the slave.115 But did the

borrower in addition have a contractual action against the lender? Only if the latter had known that this particular slave had long fingers.

Later centuries tended to extend the lender's responsibility to gross negligence,116 but apart from that his position remains unchanged in modern law. This has given rise to one particular problem. Where the lender has deliberately handed over a defective object and thus caused damage, the borrower will normally not only have a contractual but also a delictual action. The delictual action, however (based on the lex Aquilia) is not confined to cases of dolus but also lies against the negligent lender. Thus it is clear that to admit a delictual remedy in these cases would seriously undermine the lender's privileged position and make any restriction on his contractual liability more or less meaningless. Thus one could argue that the contractual degree of diligence expected in this situation should be applied to the delictual action too. But then: is it really acceptable to assume generally that what is not forbidden by contract is permitted under the law of delict?

113Gai. D. 13, 6, 18, 3.

114For a discussion of these and further texts, see Schwarz, (1954) 71 ZSS 129 sqq.;

cf. also Provera, op. cit., note 103, pp. 103 sqq.

115Cf infra, pp. 916 sq., 1118.

116Cf. e.g. Vinnius, Institutions, Lib. Ill, Tit. XV, 11 (sub "commodatum"); Pothier, Traite du pret a usage et du precaire, nn. 80, 84; cf. also § 599 BGB ("The lender is responsible only for wilful conduct and gross negligence"). But see § 600: "If the lender fraudulently conceals a defect in title or in quality in the thing lent, he is bound to compensate the borrower for any damage arising therefrom." Cf. further the "melancholy case" (Erie CJ)

of Bldkemore v. Bristol and Exeter Railway Co. (1858) 8 El & Bl 1035 (obiter).

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The law of delict sanctions general duties of behaviour which have to be observed, irrespective of whether a special (contractual) relationship exists in an individual case. Which of these two views the Roman lawyers took cannot be determined from the sources.117 The authors of the ius commune were divided on this point.118 Modern German lawyers tend to adopt the former approach and argue that the subjective

requirements of § 823 I BGB must be modified by the standard set in §599.119

Finally, it must be pointed out that the borrower could not only claim under the actio commodati contraria where the damage had been caused by the defective object of the loan. A case in point is Afr. D.13, 6, 21 pr.:

"Rem mihi commodasti: eandem subripuisti: deinde cum commodati ageres nee a te scirem esse subreptam, iudex me condemnavit et solvi: postea comperi a te esse subreptam: quaesitum est, quae mihi tecum actio sit."

As we have seen, the actio furti was not available to the borrower. However, the lender was liable under the actio commodati contraria.

". . . adiuvari quippe nos, non decipi beneficio oportet," as Paulus put it;120 when we lend we ought to confer a benefit and not to do a

mischief, and this reasoning underlies all other cases in which the borrower was allowed to claim damages too.121

6. Loan for use today

Throughout the centuries, the law relating to commodatum has seen little change. Certain marginal adjustments have been made: according to the German code, for instance, the lender is as a rule responsible not only for wilful conduct but also for gross negligence; the borrower is liable for dolus and culpa only (custodia having been transformed into and superseded by culpa liability already in post-classical Roman law); and the handing over of the object is now regarded as involving transfer of (direct) possession to the borrower.122 By and large, though, Paulus or Gaius would find their way through the modern law of commodatum with ease. This applies not only to the European continental systems and South African law, but even to the English common law.

117 For a review of the relevant texts, see Norman S. Marsh, "The Liability of the Gratuitous Transferor: A Comparative Study", (1950) 66 LQR 51 sqq.

na Cf. e.g. Gluck, vol. 10, pp. 310 sqq.; Vangerow, Pandekten, § 681, Anm. 3, n. II; Windscheid/Kipp, § 455, n. 12.

119 Cf. e.g. BGH, 1974 Neue Juristische Wochenschrift 234 (235); KoUhosser, op. cit., note 76, § 599, n. 4. For a full analysis of this and similar problems arising from the concurrence of delictual and contractual liability, see Peter Schlechtriem, Vertragsordnung und ausserver-

traglkhe Ha?ung (1972), pp. 27 sqq. Cf. also infra, pp. 904 sqq. ?20 D. 13, 6, 17, 3.

121Especially in cases of an "importune repetere" of the object lent. Cf. e.g. Paul. D. 13, 6, 17, 3 {". . . si ad fuiciendam insulam tigna commodasti, deinde protraxisti . . ."). For a discussion of this and further cases, see Schwarz, (1954) 71 ZSS 157 sqq.

122This is different in South African law, where the borrower is still regarded as detentor.

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In medieval English law—which had "but a meagre stock of words that can be used to describe dealings with movable goods"123—a host of legal relationships were lumped together under the title of bailment.124 This term is derived from the French bailler, "to deliver"; originally it even covered cases where the transferor (bailor) was parting with ownership. In more modern times, however, it has been restricted to the "delivery of goods on a condition, expressed or implied, that they shall be restored by the bailee to the bailor",125 that is, to the temporary transfer of possession of a chattel which must ultimately be returned. Even in this limited form, therefore, it ranges from hire to mandate, from deposit to pledge, and it also includes gratuitous loans. To this day, bailment is a somewhat labyrinthine concept. It appears at various disjointed places in textbooks on personal property, torts and contracts. Bailment is often, or even generally, a contract, but it may also be independent of a contract. If it is a contract, how can the gratuitous bailment be reconciled with the doctrine of consideration? Various attempts to do so are puzzling and rather unconvincing.126 Does bailment therefore have to be regarded as a relationship sui generis?127 We cannot pursue these questions. To a certain extent, however, the law of bailment has been set, since the great and celebrated case of Coggs v, Bernard (decided in 1703),128 "upon a much more rational footing".129 In an elaborate judgment, Sir John Holt isolated and distinguished six sorts of bailment and determined the liability of the bailee according to his benefit derived from the individual type of transaction.130 This analysis is squarely based on Roman law;131 it is through Coggs v. Bernard (and the subsequent

123Pollock and Maitland, vol. II, p. 169.

124Cf. Pollock and Maitland, vol. II, pp. 169 sqq.

125Joncs, Bailments, p. 1; cf. also Blackstone, vol. II, p. 452 ("a delivery of goods in trust,

upon a contract expressed or implied, that the trust shall be faithfully executed on the part of the bailee").

126This is how Lord Holt {Coggs v. Bernard (1703) 2 Ld Raym 909 at 919) argued: "But secondly it is objected, that there is no consideration to ground this promise upon, and therefore the undertaking is but nudum pactum. But to this I answer, that the owner's trusting hi m with the goods is a sufficient consideration to oblige hi m to a careful management." But the borrower has not given his promise because the lender was parting with his goods; the delivery cannot be regarded as the "price" for the promise. Cf. Aliyah, Rise and Fall, pp. 177, 186 sq., who tries to expose the fallacy of reading the decision ahistorically in the light of modern doctrine.

127Cf. M.P. Furmston, in: Cheshire, Fifoot and Furmston, Law of Contract (11th ed.

1986). p. 83.

12f*(1703)2LdRaym909.

129Blackstone, vol. II, p. 453.

130(1703) 2 Ld Raym 909 at 912 sqq. On the influence of civilian jurisprudence on Sir John Holt, see Daniel R. Coquillette, The Civilian Writers of Doctors' Commons (London, 1988), pp 271 sqq.

And Bracton, who has in turn drawn from Roman law.

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elegant and comprehensive treatises of Jones and Story,132 building on this cornerstone) that (the Roman) commodatum, depositum and pignus entered into English law.

II.DEPOSITUM

1.The nature of depositum; depositum miserabile

Depositum was similar to commodatum in many ways. It was a contract re,133 it was a gratuitous transaction and, like the commodatary, the depositary did not have the possessory interdicts, but was a mere detentor.134 The most significant difference, however, was that the object was handed over not to be used but to be kept in safe custody.135 If a depositary used what had been given to him, he committed furtum usus and was liable to the depositor under the penal actio furti.136 It is clear, therefore, that the balance of benefit and interest in depositum was entirely different from that in commodatum: it was only the bailor and not the bailee who could normally have an interest in and derive an advantage from this type of transaction.137 This was bound to find its reflection in the standard of diligence that could be expected from the bailee. It would not have been reasonable to impose custodia liability on an altruistic holder such as the depositary, who kept the object not for his own but for the depositor's benefit. In fact, his liability was restricted to dolus and that, of course, could easily be (and actually was) rationalized on the basis of utility considerations: ". . . nam quia nulla utilitas eius versatur apud quern deponitur, merito dolus praestatur solus."138 A further consequence flowed from this: if the deposited object was stolen, the depositor had to bring the actio furti against the thief.139 Unlike the commodatary, the depositary was not eligible to do so: seeing that he was not liable towards the owner for this incident, and in this sense did not have a specific interest in the

Cf. further Winfield, Province, pp. 92 sqq. Story and especially Jones, however, do not find much favour with modern common-law writers such as Tyler and Palmer, Crossley Vaines on Personal Property (5th ed., 1973), pp. 70, 86.

133Gai. D. 44, 7, 1, 5. A mere pactum de deponendo (unlike today) was unenforceable.

134Flor. D. 16, 3, 17, 1.

135Ulp. D. 16, 3, 1 pr.: "Depositum est, quod custodiendum alicui datum est." Ulpian carries on to provide an etymological explanation: "dictum ex eo quod ponitur: praepositio enim 'de' auget positum . . ."; but cf. also Paul. Sent. II, XII, 2 ("depositum est quasi diu positum") and Giuseppe Gandolfi, // deposito nella problematical della giurisprtidenza romana

(1971), pp. 107 sqq.

116 Cf. Gai. Ill, 196; Inst. IV, 1, 6.

137 Vinnius, Institutions, Lib. Ill, Tit. XV (sub de deposito), 2: ". . . totum hoc negotium

ex utilitate deponentis aestimetur"; 3: "In deposito nullum commodum est depositarii." 138 Ulp. D. 13, 6, 5, 2; cf. also Ulp. D. 50, 17, 23 and Tafaro, Regula, pp. 242 sqq., 259

sqq.

Gai. Ill, 207: "Sed is apud quern res deposita est custodiam non praestai, tantumque in eo obnoxius est, si quid ipse dolo malo fecerit. qua de causa si res ei subrepta fuerit, quia restituendae eius nomine depositi non tenetur nee ob id eius interest rem salvam esse, furti agere non potest, sed ea actio domino competit"; Mod. Coll. X, II, 6.

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safety of the thing (custodia), the situation did not require a deviation from the normal rule, namely that it is up to the owner to sue for theft.

As in the case of commodatum, we find an actio directa (the actio depositi)140 of which the bailor could avail himself if the bailee did not duly return the thing deposited,141 and also a contrarium iudicium (the actio depositi contraria) which the bailee could bring for reimbursement of expenses and compensation for damages.142 Again, of course, the latter action lay only where expenses had been incurred or damages caused; like commodatum, depositum was an imperfectly bilateral contract with the obligation of the depositary being the principal while that of the depositor was merely incidental. Unlike the lender in commodatum, the depositor must have been strictly liable to the depositary for damage caused by the object deposited; after all, it was he who benefited from the latter's kindness.143

Like the actio commodati, the (contractual) remedy of the depositor had its historical origin in delict;144 even before the formula in factum

140Again, there was a praetorian action with a formula in factum concepta (". . . [rem] doto malo N1 N1 A° A° redditam non esse", introduced in the days of ehe early Republic) to which a formula in ius concepta (". . . quidquid ob earn rem Num Num A° A° dare facere oportet ex fide bona") was later added. Cf. Gai. IV, 47 for the full formulae. For a discussion of both formulae cf. e.g. Gandolfi, op. cit., note 135, pp. 69 sqq.; on the characteristic features of the actio in factum, see, however, more recently, Robin Evans-Jones, "The penal characteristics of the 'actio depositi in factum'", (1986) 52 SDHl 105 sqq.

141The depositor could claim his object back at any time, even if he had originally deposited it for a specific time. Cf. e.g. Ulp. D. 16, 3, 1, 46: "Proinde et si sic deposuero, ut post mortem meam reddatur, potero et ego et heres meus agere depositi, ego mutata voiuntate", and Gluck, vol. 15, pp. 188 sqq. (Could the depositary hand back the deposit at any time and thus terminate the—for him often burdensome—contractual relationship? On this question, see Wieslaw Litewski, Studien zur Verwahrung im romischen Recht (1978), pp. 31 sqq.) If the depositary did not hand the thing back at the depositor's request, he normally acted in bad faith. Cf, however, Marcellus (Ulp. D. 16, 3, 1, 22), who rhetorically asks: ". . . quid enim si in provincia res sit vel in horreis, quorum aperiendorum condemnationis tempore non sit facultas?" Answer: "[N]on semper videri posse dolo facere eum, qui reposcenti non reddat." The actio in ius, of course, was available for the recovery of id quod interest (i.e. the actual damage suffered by the plaintiff). As far as the measure of damages in the actio in factum was concerned, cf. the discussion by Robin Evans-Jones, "The Measure of Damages in the actio depositi in factum", (1987) 55 TR 267 sqq. He argues that, in spite of the "quanti ea res erit" clause, condemnation was not confined to vera aestimatio rei but involved his id quod interest. This was advantageous for the plaintiff, where the action was brought because the deposit had not been returned at all, for the plaintiff could claim certain categories of consequential loss over and above the value of the object. Where the property was, however, returned in a deteriorated state (for this extension of the ambit of the actio, see e.g. Ulp. D. 16, 3, 1, 16: "Si res deposita deterior reddatur, quasi non reddita agi depositi potest: cum enim deterior redditur, potest dici dolo malo redditam non esse"),

the plaintiff's loss was usually less than the full value of the object.

14i Mod. D. 16, 3, 23; Schwarz, "Die Kontrarklagen", (1954) 71 ZSS § 121; Story, Bailments, § 121; Windscheid/Kipp, § 378, 2.

143 Cf. today § 694 BGB: "The depositor shall compensate the depositary for any damage caused by the nature of the thing deposited, unless at the time of the deposit he neither knew nor should have known of the dangerous nature of the thing . . . " (reversal of onus of proof!).

According to the prevailing opinion, the (earlier) actio depositi in factum was a penal remedy, whereas the (later) actio in ius concepta performed a purely reipersecutory function;

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concepta had been developed by the praetors, the XII Tables had granted a penal action for duplum in case of embezzlement.145 Once, of course, the actio depositi had been introduced, it normally lay for simplum. One case always remained, though, where double the value of the object deposited was owed, and that was where the deposit had to be made suddenly and in a situation of emergency: tumultus, incendii, ruinae or naufragii causa.146 Here the depositor did not have the time to approach a friend or to select a trustworthy person with whom to deposit the property and was more or less forced into this transaction. The Roman lawyers apparently regarded it as particularly perfidious if the depositary tried to take advantage of the depositor's predicament in such a situation. Even under normal circumstances, however, they looked at the depositary's breach of trust with such disgust147 that he was taken to be famosus. Condemnation under the actio depositi, in other words, involved infamia,148 that is, a diminution of the estimation of a person among his fellow citizens and also certain legal disabilities—for instance, concerning the right to hold public office.149 The actio depositi was one of a number of actiones famosae based on contractual relationships to which the idea of honest behaviour was so fundamental that any violation was regarded as a particularly offensive breach of confidence. The institution of infamia (iuris) has lost its place in modern private law, but lives on as an ancillary penalty in criminal law.150 The iudicium in duplum in case of the above-mentioned necessary deposit (which came to be called depositum miserabile) was also not received in France and Holland.151 In Germany it survived until the 19th century,152 but was

the history of depositum is therefore seen, essentially, as a development from delict to contract. This view has recently been challenged by Evans-Jones, (1986) 52 SDHI 105 sqq., tying in with the ideas developed by Geoffrey MacCormack. "Gift, Debt, Obligation and the Real Contracts", (1985) 31 Labeo 131 sqq'

145 Tab. 8, 19; d. Paul. Coll. X, VII, 11; von Lubtow, Condictio, pp. 91 sq.; Watson, Evolution, pp. 10 sqq.; MacCormack, (1985) 3I Labeo 145 sq.; Robin Evans-Jones, "The

Action of the XII Tables 'ex causa depositi'", (1988) 34 Labeo 188 sqq. 146 Ulp. D. 16. 3, 1, 1.

Ct. e.g. Seneca, De beneficiis. Lib. IV, X. 1: "Depositum reddere, per se expetenda est." Cf. also Plinius, Epistulae, Lib. X, 97. 7. praising the Christians of his time in the following way: ". . . se sacramento non in scelus aliquod obstringere, sed ne furta, ne

latrocinium, ne adulteria committerent. ne fidem fallerent. tie depositum арреіШі abneqarent." 14* Gai. IV, 182; lui. D. 3, 2, 1.

І4 У On infamia in general, see Kaser, RPr I, pp. 274 sq.; idem, "Infamie und ignominia in den romischen Rechtsquelten", (1956) 73 ZSS 220 sqq.; Peter Garnsey, Social Status and Legal Privilege in the Roman Empire (1970). pp. 185 sqq.

50 Cf. Savigny, System, vol. II, § 83; Windscheid/Kipp, § 56 and, today, for instance

§§45 sqq. StGB.'

Cf. Pothicr, Traite du contrat de depot, n. 76; Groenewegen, De legibus abrogeais, Digest. Lib. XVI, Tit. III. 1. 1. '

152 Cf. Stryk, Usus modernus pandeaarum. Lib. XVI. Tit. Ill, § 1; Windscheid/Kipp, § 378, 1 (in fine); §§ 43, 58 I 14 PrALR.

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not taken over into the BGB.153 Penal elements are alien to modern private law.

2.The liability of the depositary

(a)Dolus, culpa lata (and exceptions)

It has been said above that the depositary was liable only for dolus. This statement still needs some qualification. The formula in ius concepta with its "ex bona fide" clause was flexible enough to accommodate special contractual arrangements by the parties. Thus, depositor and depositary were free to agree to make the latter responsible for culpa or even custodia.154 The liability of the depositary was increased ex lege, where the depositum was in his own interest. Such cases are rare, yet we find an example in the Digest:

"Si qiiis ncc causam nee propositum faenerandi habuerit et tu emprurus praedia desideraveris mutuam pecuniam nee volueris creditae nomine antequam emisses suscipere atque ita creditor, quia necessitatem forte profkiscendi habebat, deposuerit apud te hanc eandem pecuniam, ut, si emisses, crediti nomine obligatus esses, hoc depositum periculo est aus qui suscepit."155

Here the only reason why the friend deposited his money before embarking on his voyage was to enable the depositary to pay the purchase price for a tract of land, when required to do so. Closely related was another situation.

"[S]ed et si sc quis deposito obtulit, idem Iulianus scribit periculo se depositi illigasse, ita tarnen, ut non solum dolum, sed etiam culpam et custodiam praestet, non tamen casus fortuitos."156

Why the depositary was so keen to have the object for safekeeping we do not know; but the fact that he spontaneously and officiously urged the depositor to give it to him was enough to render him liable for custodia. But for such importunity on the part of the depositary, it has been argued, the depositor might well have chosen "a person of more approved vigilance".157 This argument is not necessarily convincing, as the depositary's offer may just as well have been the result not of selfinterest but "of strong affection, and a desire to oblige, and often a sense of duty, especially in cases of imminent peril or sudden

153 The French code civil (artt. 1924, 1950) still grants a special privilege to depositaries in case of deposita miserabilia: oral proof by witnesses is admitted, whatever the value of the deposited objects; otherwise contracts involving a value of 5 000 Francs or more can be proved only by formal documents. On the depositum miserabile in general, see Voet,

Commentarius adPandectas, Lib. XVI, Tit. Ill, XI; Pothier, Traite du contrat de depot, nn. 75 sq.; Gluck, vol. 15, pp. 208 sqq; Story, Bailments, § 44; and, most recently, Wieslaw Litewski,

"Studien zum sogenannten 'depositum necessarium1 ", (1977) 43 SDHI 188 sqq.

154 Cf. Ulp. D. 16, 3, 1, 6; Ulp. D. 13, 6, 5, 2; C. 4, 34, 1 (Alex.): ". . . si non aliud specialiter convenit . . ."); Erich Sachers, "Die Verschuldenshaftung des Depositars", in:

Festschrift fur Paul Koschaker, vol. II (1939), pp. 100 sqq.

155 Ulp. D. 12, 1, 4 pr. Cf. Pothier, Traite du contrat de depot, n. 32; Gluck, pp. 179 sqq.;

Jones, Bailments, p. 49.

156 Ulp. D . 16, 3, 1, 35. Cf. furthe r Gluck, vol . 15, p. 177; Pothie r, Tra ite du con tra t d e depot, n. 30.

157 Jones, Bailments, p. 47; cf. also Domat, Les loix civiles, Lib. I, Tit. VII, Sec. Ill, ѴШ.

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emergency".158 Nevertheless, reminiscences of lui. D. 16, 3, 1, 35 can still be found in both the French159 and the Louisiana Civil Code160—not, however, in modern German law.

Then there was one case where the depositary was even liable for vis maior: if he used the object that had been deposited with him and thus committed furtum usus, he could not expect any sympathy and had to bear the consequences, no matter what happened.161

Most importantly, though, "quidquid ob earn rem Num Num A° A° dare facere oportet ex fide bona" was probably, already in classical times, taken to apply to cases where the depositary had not been guilty of intentional breach of contract, but where he had blatantly disregarded the most obvious and elementary standards of good and diligent behaviour; in other words, where his lack of care had been such as to be inconsistent with good faith and honest intention. The depositary's liability was thus extended to cases of culpa lata162 (gross negligence), at first merely under the formula in ius concepta.163 It was only in post-classical times, however, that this type of liability was conceptualized and generally placed on a par with dolus: "[M]agnam tarnen neglegentiam placuit in doli crimine cadere",164 as Justinian interpolated Gaius' discussion of the actio depositi, "dissoluta enim neglegentia prope dolum est",165 or "lata culpa plane dolo comparabitur"166 as we read at other places.167 Thus, the rule in Justinian's time seems to have been: ". . . qui depositum accepit . . .

dolum solum et latam culpam, si non aliud specialiter convenit,

1SH Story, Bailments, § 82.

159 Am.' 1927, 1928.

16(1 Am. 2908, 2909.

161 Cf. De Robertis, Responsabilite contrattuale, p. 396; Gluck, vol. 15, p. 178. The same applied, of course, if the depositary had sold the object: "Si rem depositam vendidisti eamque postea redemisti in causam depositi, ctiamsi sine dolo malo postea penerit, tenen te depositi, quia semel dolo fecisti, cum venderes" (Ulp. D. 16, 3, 1, 25). Again, the idea of versari in re illicita; cf. supra, p. 197.

6 For a Roman definition, see Ulp. D. 50, 16, 213, 2 ("Lata culpa est nimia neglegentia, id est non intellegere quod omnes intellegunt").

163 Kaser, RPr I, p. 535, n. 10; Buckland/Stein, p. 468. Dolus did not yet have a fixed, technical meaning (evil intention), but was merely the opposite of bona fides. Under the bonae fidei iudicia, the judge was instructed to condemn, if the defendant's behaviour had infringed the standards of good faith. Such a breach of good faith was called dolus malus. In the course of time, a more and more refined interpretation and application of the precepts of good faith and honest behaviour was bound to lead to an extension of the debtor's liability to cases of (as we would describe it) negligent behaviour. To a large extent, this development was, however, i mpeded by the fact that quite a few bonac fidei iudicia were actiones famosae. The Romans were highly sensitive in questions of honour and social reputation, and thus the sanction of infamia was not to be imposed too lightly.

164D. 44, 7, 1, 5.

165Ulp. D. 17, 1, 29 pr.

166Ulp. D. 11, 6, 1, 1.

167Cf. further De Robertis, Responsabilita contrattuale, pp. 58 sq.; Arangio-Ruiz,

Responsabilita contrattuale, pp. 251 sqq.; Hoffmann, Fahrlassigkeit, pp. 4 sqq.; Geoffrey MacCormack, "Culpa", in: (1972) 38 SDHI 176 sqq.; Cannata, Responsabilita contrattuale, pp. 5 sq.

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praestare debuit."168 We still find this rule in some of the codifications of the 19th century.169

(b) Diligentia quam in suis

Usually, however, another standard of liability was advocated in the literature and laid down in the codes. § 690 BGB is an example: ". . .

the depositary shall be responsible only for such care as he is accustomed to exercise in his own affairs."170 Here, liability is not determined according to the abstract standard of the diligens paterfamilias, but according to a concrete, subjective criterion (hence, in nonRoman parlance, culpa in concreto): the diligence expected of the debtor is diligentia quam suis rebus adhibere solet. This type of liability (and with it the distinction between diligentia diligentis and diligentia quam in suis) was largely developed in post-classical Roman law, but it was not entirely without classical antecedents.171 As far as depositum is concerned, we have to go back to a very interesting but much disputed text by Celsus:

"Quod Nerva diceret latiorcm culpam dolum esse, Proculo displiccbat, mihi verissimum videtur. nam et si quis non ad cum modum quem hominum natura desiderat diligens est, nisi tarnen ad suum modum curam in deposito praestat, fraude non caret: ncc enim salva fidc minorem is quam suis rebus diligentiam pracstabit. "172

We are dealing here with a controversy among the classical lawyers (more precisely, in fact, between members of one and the same—the Proculian—school). Liability of the depositary was originally restricted, as we have seen, to dolus. Nerva advocated extension to what he called culpa latior; we would say cases of gross negligence. This, according to Proculus, was going too far: where the depositary is a very careless person generally, one cannot regard it as breach of good faith (= dolus) if he also handles the depositor's property carelessly. Celsus, however, sided with Nerva and introduced what one might call the

168 C. 4, 34, 1 (Alex.); but cf. also Paul. Coll. X, VII, 6. Cf. further Dc Robertis, Responsabilite contrattuale, pp. 373 sqq.; Maschi, Contratti reali, pp. 376 sqq.; Francesco Sitzia, "Sulla responsabilita del depositario in diritto bizantino", (1971) 13 BIDR 189 sqq.; Vinnius, InstitHtiones, Lib. Ill, Tit. XV (sub de deposito), 3 ("Qui autem dolum dick, latam culpam non excludk"); Gluck, vol. 15, pp. 171 sqq.; Arndts, Pandekten, § 285: Brinz, Pandekten,

§ 137, 2.

1(19 Cf. e.g. §§ 1266 SachsBGB; for South African law. see Bester, in: Joubert (ed.), The Law of South Africa, vol. 8 (1979), n, 74.

170Cf. further, for example, § 11 I MPrALR; art. 1927 code civil; Herbert Hausmamnger. "Rcchtsvergleichende Notizen zur diligentia quam in suis", in: Festchri? fur Hennann Bait! (1978), pp. 283 sqq.

171Cf. Bernhard Kubier. "Die Haftung fur Verschulden bei kontraktsahnlichen und

deliktsahnlichen Schuldverhaltnissen", (1918) 39 ZSS 179 sqq.: Arangio-Ruiz, Responsabilita contrattuale, pp. 257 sqq.; De Robertis, Responsabilita contrattuale, pp. 65 sqq.; Herbert Hausmamnger, "D ilige ntia quam in suis ", in: Festschrift fur Max Ka ser (1976), pp. 265 sqq.

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