When is a contract of deposit constituted?

A deposit is constituted from the moment a person receives a thing belonging to another, with the obligation of safely keeping it and of returning the same.(Art. 1962) Nature of a contract of deposit A contract of deposit is a gratuitous contract. Exceptions: 1.when there is agreement to the contrary 2.when depositary is engaged in the business of storing goods(Art.1965) Deposit is necessary When it is made in compliance with a legal obligation When it takes place on the occasion of any calamity, such as fire, storm, flood, pillage, shipwrecks or other similar events (Art. 1996) Deposit is voluntary It is voluntary when the delivery is made by the will of the depositor. A deposit may also be made by two or more persons each of whom believes himself entitled to the thing deposited with a third person, who shall deliver it in a proper case to the one to whom it belongs (Art. 1968) Basic duties of depositary The depositary is obliged to keep the thing safely and to return it, when required, to the depositor, or to his heirs and successors, or to the person who may have been designated in the contract. (Art 1972) Contract of deposit perfected A contract of deposit is perfected by the delivery of the thing (Art. 1963) Depositary capacitated person accepts a deposit from incapacitated person If a person having capacity to contract accepts a deposit made by one who is incapacitated, the following can demand its return: 1.depositor 2.depositors guardian 3.administrator of the depositor (At. 1970) Depositary deposit the thing with a third person As a general rule, depositary may not deposit the thing with third person, unless there is a stipulation to the contrary (Art. 1973) Depositary is liable for the thing lost if allowed to deposit to third person but the depositary deposited it with a manifestly careless or unfit person (Art. 1973) Use of the thing deposited As a rule no Except: 1.there is express permission of the depositor 2.the preservation of the thing deposited requires its use, but it must be used only for the purpose intended (Art. 1977) If the depositary uses it, the comtract may no longer be a contract of deposit, but it may be different one like loan. (Art 1962, 1978), but this rule is not absolute, because if safekeeping is still the principal purpose of the contract, it is still a contract of deposit (Art 1978) Depositary is liable in case of loss of the thing deposited even in case of fortuitous event If it is so stipulated He uses the thing without the depositors permission Delays its return

 Allows other to use it even though he himself may have been authorized to use the same (Art 1979) Contractual relation between bank and depositor Art. 1980 Proof of ownership Depositary cannot demand that the depositor prove his ownership of the thing deposited (Art 1984) Duties of depositary if he learns that the thing deposited is not owned by depositor Depositary should advise the owner of the deposit (Art 1984). If the owner, in spite of such information, does not claim it within the period of one month, the depositary shall be relieved of all responsibility by returning the thing to the depositor. If the depositary has reasonable grounds to believe that the thing has not been lawfully acquired by the depositor, the former may return the same. Extinguishment of deposit Upon the loss or destruction of the thing deposited In case of gratuitous deposit, upon the death of either the depositor or depositary (Art 1995) Obligations of depositor If gratuitous, to reimburse the depositary for the expenses he may have incurred for the preservation of the thing (Art 1992) Reimburse the depositary for any loss arising from the character of the thing thing deposited, unless: 1.At the time of constitution the former was not aware of, or was not expected to know the dangerous character of the thing; or 2.He notified the depositary of the same, or the latter was aware of it without advice from the depositor. (Art 1993) Necessary Deposit The following conditions must be present in order that hotel-keeper may be liable: He must notify the hotel-keeper of the said effects or valuables Take the precautions which said hotel-keeper or their substitutes advised relative t the care and vigilance over the same (Art 1998) Liability of hotel-keeper Liable for the vehicle which has been introduced or placed in the annexes of the hotel (Art 1999) The act of a thief or robber, who entered a hotel is deemed force majeure if it is done with the use of arms or through irresistible force (Art 2001) Hotel not liable: 1.loss is due to the acts of the guest, his family, servants or visitors 2.arises from the character of the things brought into the hotel (Art 2002) Hotel keeper cannot free himself from responsibility by posting notices to the effect that he is not liable for the article brought by guests, the stipulation is void (Art 2003) Judicial deposit It shall be constituted when an attachment or seizure of property in litigation is entered (Art 2005) Depositary of the sequestered property is relieved when: 1.controversy has ended 2.order of the court (Art 2007)

Guaranty When a person, called the guarantor binds himself to the creditor to fulfill the obligation of the principal debtor in case the latter should fail to pay the same. If the person binds himself solidarily with the principal debtor, the conract is surety (Art 2047) Continuing guaranty Not limited to single transaction, but which contemplates a future course of dealing covering a series of transactions, generally for an indefinite time or until revoked. It is prospective in its operation and is generally intended to provide security with respect to future transactions within certain limits and contemplates a succession of liabilities for which, as they accrue, the guarantor becomes liable. Guarantor may not bind himself more than the principal debtor A guarantor may bind himself for less, but not for more than the principal debtor, both as regards the amount and the onerous nature of the conditions. Should he have bound himself for more, his obligations shall be reduced to the limits of that of the debtor (Art 2054) Obligations to be secured by guaranty Performance of voidable, unenforceable, natural obligations(Art 2052) Future obligations (Art 2053) Conditional obligations (Art 2053) Form of guaranty Not presumed must be express and cannot extend more than what is stipulated theein (Art 2055) Liability of guarantor Guarantor liable to debtors obligation only after judgment has been obtained against the principal debtor and the latter is unable to pay for obviously the exhaustion of the principals property, the benefit of which the guarantor claims cannot begin to take place before judgment has been obtained (art 2062) Rights of guarantor May set up the defense of excussion granted him by law which shall remain unimpaired even if judgment is rendered against principal debtor (Art 2062) Effects of guaranty Guarantor cannot be compelled to pay the creditor unless the latter has exhausted all the properties and has resorted to all the legal remedies against the debtor (Art 2058) Exceptions: Art. 2059 Compromise between creditor and principal debtor, shall benefit the guarantor, but does not prejudice him (Art 2063) Compromise between creditor and guarantor, shall always benefit the debtor, but does not prejudice him. (Art 2063) Guarantor must use the benefit of excussion (Art 2060) Several guarantors Obligation to answer for the obligation shall be divided among all Creditor cannot claim from guarantors except the shares they are respectively bund to pay, unless solidarity has been expressly stipulated. (Art 2065) Effect of payment made by the guarantor for the debt of the debtor The guarantor who pays for a debtor must be indemnified by the latter Indemnity comprises: 1.1.total amount of debt

2.legal interests 3.expenses in curred by the guarantor after having notified the debtor that payment had been demanded of him 4.damages if they are due (Art 2066) Guarantor who pays is subrogated by virtue thereof to all the rights which the creditor had against the debtor (Art 2067) If there is compromise between the guarantor and creditor, he can demand from the debtor only to the extent of what he has paid (Art 2067) As a rule guarantor cannot proceed against the debtor before the guarantor has paid the amount of the obligation, except those instances enumerated under Art 2071. 1.when he is sued for the payment 2.insolvency of the principal debtor 3.debtor bound himself to relieve him from the guaranty within specified period, and this period has expired 4.debt has become due and demandable, by reason of the expiration of the period of payment 5.after the lapse of 10 years, when the principal obligation has no fixed period for its maturity, unless it be of such nature that it cannot be extinguished except within a period longer than 10 years 6.Reasonable grounds to fear that the principal debtor intends to abscond 7.principal debtor is in imminent danger of becoming insolvent ANTICHRESIS By the contract of antichresis the creditor acquires the right to receive the fruits of an immovable of his debtor, with the obligation to apply them to the payment of the interest, if owing, and thereafter to the principal of his credit (Art 2132) Obligations of the creditor in a contract of antichresis Pay taxes and charges on the estate, unless there is stipulation to the contrary. He is also bound to bear the expenses necessary for its preservation and repair (Art 2135) Antichresis vs real mortgage In antichresis, property is delivered to the creditor in real mortgage the debtor usually retains possession of the property In antichresis the creditor acquires only the right to receive fruits of the property in real mortgage the creditor-mortgagee does not have the right to receive the fruits but a mortgage creates a real right over the property which is enforceable against the whole world In antichresis it is expressly agreed that the creditor shall apply the fruits to the payment of interest if owing and thereafter to the principal of the credit in real mortgage no such obligation on the part of the mortgagee PLEDGE AND MORTGAGE Requisites: 1.constituted to secure the fulfillment of a principal obligation 2.pledgor or mortgagor be the absolute owner of the thing pledged or mortgaged 3.persons constituting the pledge or mortgage have the free disposal of their property and in the absence thereof, they be legally authorized for the purpose (Art 2085) 4.thing pledged be placed in the possession of the creditor or a third person by common agreement (Art 2093) 5.Description of the thing and the date of pledge appear in a public instrument (Art 2096) 6.Document in which it appears be recorded in the registry of property (Art 2125) Pledge vs real mortgage Pledge constituted on movables real mortgage on immovables

 Pledge the property is delivered to the pledge or by common consent to third person in real mortgage delivery is not necessary Pledge not valid against third person unless the description of the thing and date of pledge appear in a public instrument in mortgage not valid against third person if not registered Pactum commissorium The creditor cannot appropriate the things given by way of pledge or mortgage or dispose of them. Any stipulation to the contrary is void (art 2088) Remedy of the creditor to satisfy the credit is not to appropriate to himself but the thing pledged or mortgaged be alienated to satisfy the payment of the obligation (Art 2087) If creditor cannot alienate or appropriate, he can appropriate it if after the conduct of a public auction there is no bidder, another public auction should be conducted if there is still no bidder he can now appropriate the object of the pledge or mortgage (Art 2112) Return of the thing pledged Pledgor can as for the return only after payment of the debt and its interest, with expenses in proper case (Art 2099). This has to be so because the thing pledged was delivered to secure the payment of the pledgors obligation Use of the thing pledged As a rule it cannot be used, unless there is the authority of the pledgor (Art 2104) Remedy of the pledgor if the pledge uses the thing without authority is to ask the thing to be deposited to thir person (Art 2104) Effect of return of the thing pledged If the thing okledged is returnes by the pledge to the pledgor the pledge is extinguish. Any stipulation to the contraru shall be void (Art 2110) Statement of renouncing or abandoning the pledge is sufficient to extinguish the pledge (Art 2111) Chattel mortgage not registered It is valid between the parties, purpose of registration is only to give constructive notice to third person. (Art 2125) Affidavit of good faith in chattel mortgage It is required only for the purpose of transforming an already valid mortgage into preferred ,mortgage. It is no necessary for the validity of the chattel mortgage itself but only to give it a preferred status.