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

The Legal Nature of the Monetary Irregular-Deposit Contract 35title 15, book 3) the distinction is made between the deposit“of some counted money or raw silver or gold,” received from“another, by weight,” in which case “the goods may be usedand goods of the same quantity and quality as those receivedmay be returned;” and the deposit “which is sealed and notcounted or measured by weight,” in which case “it is not to beused, but if it is used, it must be paid back double.” 46 Thesemedieval codes contain a clear distinction between the regulardeposit of a specific good and the irregular deposit of money,and they indicate that in the latter case ownership is transferred.However, the codes do not include the important clarificationsmade in the Corpus Juris Civilis to the effect that,though ownership is “transferred,” the safekeeping obligationremains, along with the responsibility to keep continuallyavailable to the depositor the equivalent in quantity andquality (tantundem) of the original deposit. Perhaps the reasonfor this omission lies in the increasing prevalence of the depositumconfessatum.In conclusion, Roman legal tradition correctly defined theinstitution of monetary irregular deposit and the principlesgoverning it, along with the essential differences between thiscontract and other legal institutions or contracts, such as theloan or mutuum. In chapter 2 we will consider ways in whichthe essential principles regulating human interactions in themonetary irregular deposit (and more specifically, the rightsof availability and ownership implied by the contract) weregradually corrupted over the centuries as a result of the combinedactions of bankers and politicians. We will analyze thecircumstances which made these events possible, as well as thereasons behind them. In chapter 3 we will study the differentattempts made by the legal profession to justify contractsThis topic is covered with the utmost eloquence and clarity in Las Partidas.See Las Siete Partidas, annotated by the university graduate GregorioLópez; facsimile edition published by the Boletín Oficial del Estado[official gazette] (Madrid, 1985), vol. 3, 5th Partida, title 3, law 2, pp. 7–8.46 See the reference made by Juan Roca Juan to the Fuero Real in his articleon “El depósito de dinero,” in Comentarios al Código Civil y CompilacionesForales, vol. 1, tome 22, p. 249.