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

30 Money, Bank Credit, and Economic CyclesThe essential obligation of depositaries is to maintain thetantundem constantly available to depositors. If for some reasonthe depositary goes bankrupt, the depositors have absoluteprivilege over any other claimants, as Ulpian skillfully explains(paragraph 2, number 7, title 3, book 16 of the Digest):Whenever bankers are declared bankrupt, usuallyaddressed first are the concerns of the depositors; that is,those with money on deposit, not those earning interest onmoney left with the bankers. So, once the goods have beensold, the depositors have priority over those with privileges,and those who received interest are not taken into account—it is as if they had relinquished the deposit. 37Here Ulpian indicates as well that interest was consideredincompatible with the monetary irregular deposit and thatwhen bankers paid interest, it was in connection with a totallydifferent contract (in this case, a mutuum contract or loan to abanker, which is better known today as a time “deposit” contract).As for the depositary’s obligations, it is expressly stated inthe Digest (book 47, title 2, number 78) that he who receives agood on deposit and uses it for a purpose other than that forwhich it was received is guilty of theft. Celsus also tells us inthe same title (book 47, title 2, number 67) that taking adeposit with an intent to deceive constitutes theft. Pauldefines theft as “the fraudulent appropriation of a good togain a profit, either from the good itself or from its use orpossession; this is forbidden by natural law.” 38 As we see, what37 Quoties foro cedunt numularii, solet primo loco ratio haberidepositariorum, hoc est eorum, qui depositas pecuniashabuerunt, non quas foenore apud numularios, vel cumnumulariis, vel per ipsos exercebant; et ante privilegia igitur,si bona venierint, depositariorum ratio habetur, dummodoeorum, qui vel postea usuras acceperunt, ratio non habeatur,quasi renuntiaverint deposito. (García del Corral, ed., Cuerpode derecho civil romano, vol. 1, p. 837)38 Furtum est contrectatio rei fraudulosa, lucri faciendi gratia,vel ipsius rei, vel etiam usus eius possessionisve; quod legenaturali prohibitum est admittere. (Ibid., vol. 3, p. 645)