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

The Legal Nature of the Monetary Irregular-Deposit Contract 5main element is the complete availability of the depositedgoods in favor of the depositor, as well as the obligation on thepart of the depositary to conscientiously guard and protect thegoods. The only difference between the deposit of fungiblegoods and the regular deposit, or deposit of specific goods, isthat when the former takes place, the goods deposited becomeindiscernibly mixed with others of the same type and quality(as is the case, for example, in a warehouse holding grain orwheat, in an oil tank or oil refinery, or in the banker’s safe).Due to this indistinguishable mixture of different depositedunits of the same type and quality, one might consider that the“ownership” of the deposited good is transferred in the caseof the deposit of fungible goods. Indeed, when the depositorgoes to withdraw his deposit, he will have to settle, as is logical,for receiving the exact equivalent in terms of quantity andquality of what he originally deposited. In no case will hereceive the same specific units he handed over, since thegoods’ fungible nature makes them impossible to treat individually,because they have become indistinguishably mixedwith the rest of the goods held by the depositary. The depositof fungible goods, which possesses the fundamental ingredientsof the deposit contract, is called an “irregular deposit,” 5as one of its characteristic elements is different. (In the case ofthe contract of regular deposit, or deposit of a specific good,5 Our student César Martínez Meseguer argues convincingly thatanother adequate solution to our problem is to consider that in the irregulardeposit there is no true transference of ownership, but rather thatthe concept of ownership refers abstractly to the tantundem or quantityof goods deposited and as such always remains in favor of the depositorand is not transferred. This solution is the one offered, for example,in the case of commixture covered in article 381 of the Spanish CivilCode, which admits that “each owner will acquire rights in proportionto the part corresponding to him.” Though the irregular deposit has traditionallybeen viewed differently (as involving the actual transfer ofownership of physical units), it appears more correct to define ownershipin the more abstract terms of article 381 of the Spanish Civil Code,in which case we may consider there to be no transference of ownershipin an irregular deposit. Moreover, this seems to be the view of Luis Díez-Picazo and Antonio Gullón, Sistema de derecho civil, 6th ed. (Madrid: EditorialTecnos, 1989), vol. 2, pp. 469–70.