Aspects regarding the deposit contract in the current Romanian Civil Code regulation.
Regulated by the Articles 2103-2143 of the new Civil Code, the deposit contract is defined by the law, as the contract under which the depositary receives from the depositor a movable asset, under the obligation to keep it for a period of time and to return it in nature, the restitution of the property being a condition for the valid conclusion of the contract (Article 2103 Civ. C.). The legislator followed several models when drawing the institution of deposit, such as the Civil Code of Quebec (Articles 2280-2311), the French Civil Code (Articles 1915-1963), the Italian Civil Code (Articles 1766-1802), retaining certain solutions of the Civil Code of 1940 (Mitu, 2012: 2105).
The former Civil Code regulated the deposit contract under Articles 1591 to 1634, in the Title XII--"Regarding deposit and seizure"--from Book III "Regarding different modes of obtaining property" (for a comparative approach of the two regulations correspondence regarding the deposit agreement, see Pivniceru, 2012: 435-443).
Regarding the relation between the deposit institutions and those of seizure, in terms of legislative techniques, one may observe that the former legislator understood to separate the two institutions by naming them distinctly in the Title XII, while the new regulation opts for including formally the seizure in the deposit institution, which results from the introduction of a section (the fourth) dedicated to the conventional seizure, in the Chapter regarding the contract deposit. Besides the articles 1626-1634 from the Civil Code of 1864 (and for the period 01.10.2011-15.02.2013, along with the articles 2138-2143 Civ. C. 2009) the seizure-deposit, in its judiciary form, was regulated until February 15, 2013, by the Article 598-601 Civ. Proc. C. of 1865. (For comprehensive approaches, see: Deleanu, 2005: 374; Les, 2002: 163-165; Ciobanu, 1997: 61-66; Les, 2005: 1271-1278.)
The specific, distinctive element of the deposit contract is the purpose of its conclusion, namely the preservation and the conservation of a good for a period of time until refunded. But if the main purpose of the contract is not the conservation of a good, even if the holder has such an obligation, we do not find ourselves in the situation of a deposit agreement, the parties have another type of relations, as may be the case, lease, loan (Stanciulescu, 2012: 416-418), sell, contractor agreement or even relations arising from an unnamed (Deak, 2001: 373) contract.
2. Legal Characteristics
The deposit agreement has two parties, the depositor and depository, that are included in the named contracts in the new civil Code, trough legal characteristics.
1) The deposit is a named contract that benefits from an express regulation in the current Civil Code, as in the 1864 Code.
2) Another essential element of the deposit contract is its real characteristics. In the Civil Code of 2009, the real character is conferred by the Article 2103 par. 2. Under the former regulation, similar in this respect, it was held that the Article 1595 of 1864 Civil Code cannot be interpreted apart, thus leading to the conclusion that the deposit contract is consensual, but in conjunction with the Article 1593 Civil Code 1864 par. 2 according to which, for the valid contract conclusion the transmission of the good is needed (Deak, 1998: 318). It also has been said that without the transmission of the good, the simple agreement of the parties has only the value of a precontract deposit (Deak, 1993: 188).
3) In our opinion, the deposit is a contract of which we can say that it can be gratuitous or onerous, as agreed or not, resulting or not from the usage or from the Depositary's profession that a remuneration must be paid in return for the deposit. The opinions expressed in the doctrine, published under the rule of the new Civil Code, are divided: in a point of view that the deposit is considered, in principle, gratuitous, presenting a disinterested (Motiu, 2012: 167) feature selfless and only as an exception, onerous, in terms of the Article 2106 (Comanita and Comanita, 2013: 268; Motiu, 2012: 167), Civil Code and another point of view considers that the deposit can be, if it the case, onerous or gratuitous, concluding that the deposit is gratuitous by its nature, not by its essence (Florescu, 2012: 294, Stanciulescu, 2012: 416).
Even if it can be held that the Article 2106 the new Civil Code establishes a rebuttable presumption that the deposit is gratuitous, the presumption can be easily rebutted if it is proved that remuneration is to be paid (for example, depositary' customs or profession rebut this presumption by establishing one contrary).
In the previous regulation, the allegedly gratuitous character of the deposit was even more underlined, being expressly provided in the Article 1593 par. 1 in 1864 Civil Code its essentially gratuitous nature. However, important authors opined that legal provision was "erroneous" and was contradicted by the Article 1600 pt. 2 and 1633 para. 4 of the same law (Deak, 1998: 319; Chirica, 1997: 224).
In those circumstances where, unlike the previous Code, the new Civil Code does not expressly provide the essentially gratuitous character of the deposit contract, we think moreover that we cannot retain a preeminence of the gratuitous character in the new regulation, conclusion resulting from the marginal title gave to the Article 2106, "The depositary's remuneration," which does not confirm this character.
4) The deposit can be unilateral, when it is gratuitous, as it rises obligations to a single party, the depositor having only a lender quality (not a debtor one) or bilateral (synallagmatic) when it is onerous, characterized by reciprocal obligations incumbent to all parties and by the interdependence of these mutual obligations (Boroi, 2012: 79). We note that the Article 1171 Civil Code clearly defines the spheres of the unilateral contract and that of the bilateral contract, the legislator understanding to emphasize the preeminence of mutually interdependent characters of the obligations arising from the bilateral contracts, by stating expressly that even if the performance of the contract entails obligations for both parties, if the obligations arising from it are not mutual and interdependent, the contract is unilateral even if its execution assumes obligations on both sides. The doctrine noted that the text of the Article 1171 of the new Civil Code is improved comparing to the provisions of the Articles 943 and 944 of 1864 Civil Code, by emphasizing the interdependence of mutual obligations within the mutually binding contract and by the fact that a contract can be unilateral even when each party has certain obligations, not only when only one party undertakes obligations (Turcu, 2011: 106).
5) The deposit contract has basically an intuitu personae character, conferred by the Article 2112 Civil Code, wherein the subdepository is subject to the consent of the depositor, unless the depositary "is forced by circumstances to do so." We underline the fact that the old Civil Code does not have such an approach, the doctrine upheld only in isolated cases (Toader, 2005: 264) the intuitu personae character of the deposit contract (Deak, 2001: 373-375; Chirica, 1997: 224).
6) The deposit is, in principle, not transferable of property. By concluding the contract, one does not transfer the ownership of the deposited good, not even the possession of it (lacking animus), but only the precarious detention, the depositary does not hold the good with the intention to act as it owner or holder of any other real right, but with the intention to possess (corpus) on behalf of the depositor.
Regarding this legal character, despite the fact that there are no major differences of opinion, some authors mention it (Comanita and Comanita, 2013: 268; Motiu, 2012: 167), others rephrase it, stating that the deposit is "creative of obligations relationships and not transferable of real rights," others have no opinion in this regard (Stanciulescu, 2012: 416-418), while others think that the deposit is, in certain circumstances, transferrable of property (Prescure, 2012: 268).
3. Types of the Deposit
Regarding the forms of the deposit contracts, under lex lata, there are:
* the usual deposit, also called voluntary, where the depositor's option regarding the choice of the depositary is unhampered and unrestricted;
* the required deposit, where the property has been entrusted to a person under a compulsion fortuity;
* the hotel deposit, which has an object of receiving customers' goods by the hoteliers;
* deposit of monetary funds or other fungible goods and consumable by their nature, also called as irregular deposit;
* seizure deposit, conventional, in which case a disputed good is deposited at a third party, until the dispute is solved, the third party having the obligation to return the good to the entitled person at that point, or judiciary, when it is ordered by the court (whereupon the provisions of the Articles 2138-2143 Civil Code were completed until February 15, 2013 with the Articles 598-601 of 1865 Civil Procedure Code and are completed since February 15, 2013 with the Articles 971-976 of 2010 Civil Procedure Code).
The doctrine, especially the previous to the new Civil Code (Deak, 2001: 375; Chirica, 1997: 224; Toader, 2005: 264) was highlighted the difference between the seizure and the deposit itself (which includes all other forms of deposit). If within the earlier legislation there was a text argument to make that distinction (The Title XII of the Book III was called "Regarding the deposit and the seizure"), under the new Code regulation the distinction was abandoned and the chapter's title is "Regarding deposit contract," the section "The conventional seizure" is included in this chapter.
Therefore, lex lata, we believe that the distinction between the deposit itself and the seizure is no longer appropriate, the latter being only a species of the first. In recent texts, some authors still keep the delimitation (Stanciulescu, 2012: 418, Comanita and Comanita, 2013: 269; Motiu, 2012: 167) but others do not (Florescu, 2012: 295).
In conclusion, the deposit contract institution did not undergo substantial changes comparing to the former regulation, that of the Civil Code of 1864. We would emphasize the more complete approach of the legal institution of the deposit contract, in terms of legal regulation and of the underlying the belonging of the seizure institution to that of the deposit, as its subspecies.
Spiru Haret University
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