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

12 Money, Bank Credit, and Economic CyclesSpain, Barcelona’s northern court of original jurisdiction, inresponse to protests of checking-account holders demandingrecognition as depositors, pronounced a judgment acknowledgingthem as such and identifying their consequent preferentialstatus as creditors of a bankruptcy claiming title to some of theassets. The decision was based on the fact that the right ofbanks to use cash from checking accounts is necessarilyrestricted by the obligation to maintain the uninterruptedavailability of these account funds to the checking-accountholder. As a result, this legal restriction on availability ruledout the possibility that the bank could consider itself exclusiveowner of funds deposited in a checking account. 12 Though theSpanish Supreme Court did not have the opportunity to ruleon the failure of the Bank of Barcelona, a decision pronouncedby it on June 21, 1928 led to a very similar conclusion:According to the commercial practices and customs recognizedby jurisprudence, the monetary deposit contract consistsof the deposit of money with a person who, though hedoes not contract the obligation to retain for the depositorthe same cash or assets handed over, must maintain possessionof the amount deposited, with the purpose of returning it, partiallyor in its entirety, the moment the depositor should claim it;the depositary does not acquire the right to use the deposit for hisown purposes, since, as he is obliged to return the deposit themoment it is requested of him, he must maintain constant possessionof sufficient cash to do so. 1312 “Dictamen de Antonio Goicoechea,” in La Cuenta corriente de efectos ovalores de un sector de la banca catalana y el mercado libre de valores deBarcelona (Madrid: Imprenta Delgado Sáez, 1936), pp. 233–89, esp. pp.263–64. Garrigues also refers to this ruling in Contratos bancarios, p.368.13 José Luis García-Pita y Lastres cites this decision in his paper, “Losdepósitos bancarios de dinero y su documentación,” which appeared inLa revista de derecho bancario y bursátil (Centro de Documentación Bancariay Bursátil, October–December 1993), pp. 919–1008, esp. p. 991.Garrigues also makes reference to this ruling in Contratos bancarios, p.387.