Contract of deposit
The contract of deposit is a act by which one receives the thing of others, with the responsibility to keep it of and restore it in kind. It is regulated by articles 1915 to 1963 of the Civil code. There are a common right but also a special right of the contract of deposit.
Right commun run of the deposit
The deposit of common right is a contract where a part (the depositor) request with another part (the agent) to preserve the thing so that it can be to him restored later on.
Elements characteristic of the contract of deposit of common right
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the thing of the contract of deposit must be a personal property: the contracts having for object the conservation of a building are thus not “deposits” (they are for example contracts of company such as guarding). The personal property in the contract of deposit must be a material, tangible property: jurisprudence excludes from the contract of deposit the goods immaterial, intangible, the things of kind.
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the contract of deposit includes/understands an obligation of conservation: there cannot be contract of deposit without such an obligation, consisting to take care of the thing and to maintain it. The principal obligation of the contract of deposit goes sometimes further that simple conservation: for example, the deposit of an animal obliges not only with its “conservation”, but also with its raising; the deposit of a car in a garage implies its maintenance or its repair (however, this type of contract is in theory a contract of company since the obligation of conservation is generally not the principal obligation).
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the contract of deposit includes/understands an obligation of restitution: this obligation rises from the temporary character of the deposit, which is a contract operating a provision of the good, therefore temporary (the contract of deposit does not transfer the property). Exception: the contract of “deposit-sale”, made up of a deposit and a mandate.
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the contract of deposit is a primarily free contract: the free character is not any more one element necessary of the contract of deposit, but if nothing is expressly envisaged, the exemption from payment is supposed. The expenses engaged for the deposit must be refunded.
The contract of deposit is distinguished from close contracts such as the loan with use or from the contract of lease insofar as, in the contract of deposit, there are not use of the thing but conservation.
Formation of the contract of deposit of common right
There are three basic conditions with the formation of the contract of deposit of common right:
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the assent of the parts: article 1921 of the Civil code imposes a free and enlightened assent parts with the contract of deposit. The deposit of common right voluntary (with the difference of the deposit necessary such as the conservation of a lost ring, or any other “accidental” conservation or “of breakdown service”), is voluntarily and reciprocally agreed.
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the assent of the owner: the deposit can be carried out only with the assent of the owner of the thing; thus the deposit of a stolen thing is null.
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capacity of the parts: article 1925 of the Civil code imposes the capacity of the parts to the contract of deposit - which is a contract of administration of the thing under penalty of nullity.
There is a formal requirement to the formation of the contract of deposit of common right: effective handing-over of the thing (the contract of deposit is a real contract, the assent of the parts is not enough to form the contract). The writing is not obligatory with the formation of the contract of deposit; in the absence of writing, the agent will have to bring the proof of the deposit by declaration under oath in justice (article 1924 of the Civil code) if there is a dispute.
Effects of the contract of deposit
Obligations of the agent
article 1915 of the Civil code imposes two obligations to the agent: conservation and restitution.
the agent must preserve the thing without using it more than necessary to the conservation. The obligation of conservation is not a purely passive obligation: the agent must make so that the thing is maintained, does not worsen. If the thing worsened, the agent is responsible provided that it did not behave with the thing deposited as it usually deals with his business. It is thus an extraordinary mode. This extraordinary mode of responsibility applies only to the contract of deposit “according to the spirit of the Civil code”, i.e. with the free deposit: if the deposit is expensive, the agent is responsible since it did not behave as a good father of family; in the same way, nothing prevents the parts from envisaging with the contract a more or less severe mode of responsibility for the agent. There are thus 3 types of responsibility in the contract for deposit:
The agent with the obligation to restore the thing of the deposit in the state like its possible fruits, except case of major force, with the depositor. It is exonerated from this obligation if it knows that the thing was stolen and knows the true owner (in this case, the agent must to beforehand ask him whether it wishes to recover his good). The restitution is carried out at the end extinctif or at the request of the depositor (except if the agent has legitimate reasons to be opposed to the anticipated restitution), instead of the deposit.
The thing must be restored in the state (such as it was deposited to him), except case of major force. If the thing created fruits during the time of the deposit, the depositor must “restore them” with the agent. The obligation of conservation and that of restitution are not clearly distinguished by jurisprudence on this point:
- if deterioration comes from a case of major force, there is always exemption.
- if deterioration comes from a negligence of the agent, it is responsible for this one there.
- if deterioration comes from an unknown cause, it is responsible for the agent there (this jurisprudence is very contestable).
If the thing were damaged and thus that the restitution cannot be done in the state, there are violation of the obligation of conservation (obligation of means), but also violation of the obligation of restitution (obligation of result). This contradiction poses a problem in the legal reasoning; jurisprudence considers that there is a presumption of fault of the agent in the event of degradation: to exonerate its responsibility, this one must prove that it behaved well.
Obligations of the depositor
article 1947 of the Civil code imposes 2 obligations on the depositor: the refunding of the possible expenditure and the compensation for the possible losses.
Obligation to refund the possible expenditure: the depositor must refund the agent of the possible expenditure generated by the deposit.
The compensation for the possible losses: the depositor must compensate the agent for the possible losses caused by the deposit (for example in the event of latent defect of the thing: the agent sees his apples contaminated by rotted apples of the depositor).
The agent has a guarantee with respect to the depositor which does not carry out its obligations: he has a right of lien of the thing deposited. If the depositor persists in its refusal to pay the which had sums, the agent can sell the thing deposited.
Special deposits
The deposit necessary
The deposit necessary is a deposit “forced by some accident”: the lapse of memory, the shipwreck, plundering, ruin, the fire… or any other involuntary event. It is a very particular contract: there is not agreement of will between the parts (there is on the contrary “violence”, absence of assent), jurisprudence does not qualify besides always the deposit necessary of “contract”. The purpose of the deposit necessary is to save the thing of the danger which threatens it. The Code provides that, whatever the value of the deposit necessary, the proof can be done by testimony.
The hotel deposit
Definition
The hotel deposit is a deposit between a depositor traveller (that which places temporarily and passenger) and an agent making it sleep (what excludes the restaurants, bars, nightclubs, hospitals - which profit from a special diet: they are held to compensate only the “useful” things). Article 1952 of the Civil code defines the hotel deposit as a contract and a deposit necessary, which is contestable: there does not seem logical to qualify the fact of leaving various luggage and objects in a hotel room of “contract” (it is no really assent), nor of “deposit” (the mode of the hotel deposit is very derogatory with that of the deposit of common right, for example it did not give there of the thing between the hands of the hotel one: the hotel deposit is not a real contract), nor of “necessary” (the hotel deposit is not accidental, involuntary).
Mode
A full responsibility weighs on the hotel one: this one is responsible even if it did not make negligence; only the case of major force exonerates. It is thus a mode very favorable to the depositor, more especially as the Court of appeal is severe in the appreciation of the major force: even the violent robbery is not always exonératoire for the hotel agent. The fault of the customer can involve a division of responsibility.
The Civil code distinguishes three situations different of hotel deposit and envisages for each one of it a compensation:
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When the customer deposits the objects between the hands of hotel, the compensation is integral (derogatory mode).
- When the customer deposits the objects in his room, the compensation cannot exceed hundred times the price of the room.
- When the customer deposits the objects in his car on the carpark of the hotel, the compensation cannot exceed fifty times the price of the room; limiting clauses of compensation its valid.
In these two last situations (deposit in the room or the car), the fault of hotel involves the integral compensation.
The deposit of sequestration
The deposit of conventional sequestration (different from the legal sequestration, which is not a contract) is a deposit of a contentious thing, i.e. on which a problem of right rests, between a depositor and an agent.
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