Money, Bank Credit, and Economic Cycles - The Ludwig von Mises ...

120 Money, Bank Credit, and Economic Cyclespurpose of safekeeping or custody predominate. Accordingly,although we might in theory consider that ownership istransferred, in practice such a transference is negligible, sincethe safekeeping or custody of the fungible good requires theconstant availability of the tantundem to the depositor. Therefore,even if ownership were transferred in the same sense inboth institutions, an essential legal difference would still existbetween them: the contrast in availability.It may come as a surprise that the jurists who have chosento equate the deposit contract with the mutuum or loan contracthave overlooked such an obvious difference. The associationbetween the contracts is so forced and the arguments soweak that it is amazing that a certain group of theorists havetried to defend them. However, their attempt has a historical,theoretical explanation: the depositum confessatum, a legal artificewhich arose in the Middle Ages from attempts to avoidthe canonical ban on interest. Although we have alreadyshown that the canonical prohibition on interest and thedevelopment of fractional-reserve banking shared very littledirect connection, the depositum confessatum acted as a strong,indirect link between them. We already know that from thetime of Roman law, if a depositary violated the essence of thedeposit contract, based on safekeeping, and appropriateddeposits and was not able to immediately return the fundswhen the depositor demanded them, then the depositary wasobliged to pay interest. Then, irrespective of any other foreseeablecivil or criminal actions (the actio depositi and the actio furti),as is logical, an additional suit was filed to obtain interest forlate payment and the loss of availability to the depositor up tothe point when the depositary returned his funds. 3 Thus, it iseasy to understand how convenient it was in the Middle Ages3 As we know, the fact that the monetary irregular deposit is a depositcontract means the actio depositi directa applies to it. Roman jurists developedthis concept, which leaves it to the depositor to decide at anymoment when his deposit is to be returned to him. This availability is sopronounced that the depositor’s claim is considered equivalent to theownership of the money deposited (since the tantundem of the deposit isfully and immediately available to him).