Other
Important Matters Concerning a Depositary
1.
If permission to use is
given, which is not presumed but must be proved, the effects are:
a.
non-consumable - the contract loses the character of a deposit and
acquires that of a commodatum UNLESS safekeeping is still the principal purpose
of the contract;
b.
money or consumable - the contract is converted to a simple loan or
mutuum.
BUT if safekeeping is still the principal purpose of the contract, it is an irregular deposit
Irregular Deposit
|
Mutuum
|
May be demanded at will by the
irregular depositor for whose benefit the deposit has been constituted
|
Lender is bound by the provision
of the contract and cannot seek restitution until the time for payment, as
provided in the contract has arisen
|
Only benefit is that which accrues
to the depositor
|
If with interest, benefit if both parties
|
Depositor has preference over
other creditors
|
No preference
|
2.
Instances when
depositary is liable for the loss of the thing through a fortuitous event:
a.
if it so stipulated
b.
if he uses the thing
without the depositor’s permission
c.
if he delays its return
d.
if he allows others to
use it, even though he himself may have been authorized to use the same
3.
Fixed, savings and
current deposits of money in banks and similar institutions shall be governed
by the provisions concerning simple loan.
4.
Depositor need not prove
his ownership of the thing deposited.
5.
If a 3rd person
appears to be the owner of a thing:
a.
depositary must advise
the 3rd person of the deposit if he knows the true owner;
b.
if the owner, in spite
of such information, does not claim it within 1 month, the depositary shall be
relieved of all responsibility by returning the thing to the depositor;
c.
if depositary has
reasonable ground to believe that the depositor is not the owner of the thing,
the former may return the same
6.
Right of two (2) or more
depositors:
a.
Divisible thing and
depositors are not solidar:
- Each one can demand only his proportionate share
b.
Indivisible thing and
depositors are solidary
- Each one of the solidary depositors may do whatever may be useful
to the others but not anything which may be prejudicial to the latter
- Depositary may return the thing to any of the solidary depositors
unless a demand, judicial or extrajudicial, for its return has been made by one
of them in which case delivery should be made to him.
7.
To whom must the return
be made
a.
depositors, heirs,
successors, or person who may have been designated in the contract
b.
if depositor was
incapacitated or becomes incapacitated, the thing must be returned to his legal
representative
8.
Where to return
a.
at the place agreed upon
by the parties, with the depositor bearing the transportation expenses;
b.
in the absence of
stipulation, at the place where the thing deposited might be even if it should
not be the same place where the original deposit was made provided the transfer
was accomplished without malice on the depositary’s part.
9.
Time to return
GR: upon demand of the
depositor, even though a period has been fixed; BUT if the deposit is
for compensation, the depositary is entitled to the compensation
corresponding to the entire period.
EXCEPTION:
· attachment - when the
thing is judicially attached
· opposition -
should the depositary have been notified of the opposition of a 3rd person
to the return or removal of the thing
10.
Right of depositary to
return the thing deposited notwithstanding a fixed period
(does NOT apply if the deposit is for valuable
consideration in which case, the depositary is bound by the period:
a.
when the deposit is
gratuitous
b.
when there are
justifiable reasons
NOTE: If the depositor
refuses to receive the thing, the depositary may deposit the thing at the
disposal of judicial authority.)
11.
If the thing is lost by
force majeure or government order and money or another thing is received in its
place, the depositary shall deliver the sum of thing
to the depositor.
12.
Alienation by
depositary’s heir (depositary dies
and the object of the deposit is left with his heir who sells it):
a.
Good faith:
a.1 return of the price received
a.2 assign the right to collect the same if it has not
been paid
NOTE: If purchaser was
in bad faith, the depositor may bring an action for recovery against him.
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