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

128 Money, Bank Credit, and Economic Cyclesis one thing, but in light of whether or not the tantundem is constantlykept fully available to the depositor, it is quite another.To the extent that Article 1768 is only intended to distinguishwhether or not the tantundem is kept continuously available tothe depositor, it would be perfectly possible under Spanish positivelaw to recognize the existence of an irregular deposit contractthat is radically distinct from the loan contract. In fact Article1770 of the very Civil Code seems to suggest this secondinterpretation. Indeed, this article stipulates thatthe deposited good shall be returned along with all of itsproceeds and accessions. Should the deposit consist ofmoney, the same provisions established in Article 1724regarding the representative apply to the depositary.In other words, it seems the Civil Code itself allows for atype of monetary deposit which is not a loan. As José LuisAlbácar and Jaime Santos Briz correctly point out,When faced with such a discrepancy—we may even call itan antinomy—between conflicting statutory provisions [the“classical” and the “modern”], we should note that nowadaysthe more common idea seems to be that the mutuumand the irregular deposit are different, to the extent thatsome people believe that in these cases we are dealing witha type of deposit, an atypical and complex concept: theirregular deposit. 12The treatment the monetary irregular deposit receives inthe Spanish Commercial Code could also appear contradictoryand lend itself to both interpretations. In fact Article 309stipulates that12 José Luis Albácar López and Jaime Santos Briz, Código Civil: doctrina yjurisprudencia (Madrid: Editorial Trivium, 1991), vol. 6, p. 1770.Navarra’s civil code, in law 554 at the end of title 12, also makes referenceto the irregular deposit:When in the deposit of a fungible good the depositary iseither expressly or tacitly granted the power to use the good,the provisions established for the monetary loan in laws 532,534 and 535 shall be applied.As we see, the content of Article 1768 of the Spanish Civil Code isrepeated here almost literally.