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

The Legal Nature of the Monetary Irregular-Deposit Contract 31is today called the crime of misappropriation was includedunder the definition of theft in Roman law. Ulpian, in referenceto Julianus, also concluded:if someone receives money from me to pay a creditor ofmine, and, himself owing the same amount to the creditor,pays him in his own name, he commits theft. (Digest, book47, title 2, number 52, paragraph 16) 39In number 3, title 34 (on “the act of deposit”), book 4 of theCodex Constitutionum of the Corpus Juris Civilis, which includesthe constitution established under the consulship of Gordianusand Aviola in the year 239, the obligation to maintainthe total availability of the tantundem is even clearer, as is thecommission of theft when the tantundem is not kept available.In this constitution, the emperor Gordianus indicates toAusterus,if you make a deposit, you will with reason ask to be paidinterest, since the depositary should thank you for not holdinghim responsible for theft, because he who knowingly and willinglyuses a deposited good for his own benefit, against the willof the owner, also commits the crime of theft. 40Section 8 of the same source deals expressly with depositarieswho loan money received on deposit, thus using it fortheir own benefit. It is emphasized that such an action violatesthe principle of safekeeping, obligates depositaries to payinterest, and makes them guilty of theft, as we have just seenin the constitution of Gordianus. In this section we read:If a person who has received money from you on depositloans it in his own name, or in the name of any other person,39 Ibid., p. 663.40 Si depositi experiaris, non immerito etiam usuras tibi restituiflagitabis, quum tibi debeat gratulari, quod furti eum actionenon facias obnoxium, siquidem qui rem depositam invitodomino sciens prudensque in usus suus converterit, etiam furtidelicto succedit. (Ibid., vol. 4, p. 490)