Custody contract
The custody contract is a contract under the law of obligations by which the custodian undertakes to keep a movable item handed over to him by the depositor . While the custody contract is regulated in the civil code , the provisions of the storage contract , which are regulated in the commercial code , apply to merchants .
General
In economic life there are situations where a person has had his to property belonging thing neither sell wants, nor their immediate possession by rental or hire would give up to their use to let the tenant or borrower. This possibility is offered by safekeeping , in which the depositor retains the property and (indirect) possession, but the depositary himself, as the immediate owner, is not allowed to use or consume the thing . The depositor can even lose ownership of the custody item, but in return receives items of the same type, quality and quantity. The Civil Law has these opportunities created by the custody agreement.
Legal bases
By means of the safekeeping agreement , the custodian assumes the obligation to keep a movable item handed over to him by the depositor ( § 688 BGB ). The custody contract, like the loan, is an imperfect bilateral contract because the depositor's claim to return is the primary obligation . According to the prevailing opinion , the custody contract is a consensual contract through which the custodian gains direct possession of the thing ( § 868 BGB) and the depositor becomes at least an indirect owner or even remains the owner and becomes an indirect owner.
According to Section 689 of the German Civil Code (BGB), the custody contract can be concluded for a fee or free of charge, whereby remuneration for storage is tacitly agreed if, under the circumstances, storage can only be expected in return for remuneration. In the case of free storage, the custodian is only responsible for the care that he usually applies in his own affairs ( Latin diligentia quam in suis ; § 690 BGB). The custodian is not immediately entitled to deposit with third parties ( Section 691 BGB) or to change the type of storage ( Section 692 BGB). In the case of a permissible deposit with a third party, liability is only assumed for fault in the deposit, i.e. in the case of fault in selection with regard to the third party ( § 691 BGB). The custodian has to pay interest on deposited money from the time it is used ( § 698 BGB, § 246 BGB). The custodian can terminate the contract at any time if it was concluded for an indefinite period, otherwise only for good cause ( Section 696 BGB). For incurred expenses of the depositary of the depositor reimbursement of expenses to pay ( § 693 BGB), the right to reclaim the depositor results from § 695 BGB, the Drop the repository is ( § 697 BGB). An agreed remuneration is to be paid at the end of the storage ( § 699 BGB).
In the case of regular custody , the custodian must return the same item upon termination of the custody contract . In the case of irregular custody in accordance with Section 700 of the German Civil Code (BGB), only justifiable items may be kept because the custodian acquires ownership of them and is allowed to use or consume them and is therefore only able to return items of the same type, quality and quantity to the depositor. The loan law applies to money (only cash ) as an item to be kept in safekeeping ; the loan agreement in kind applies to other justifiable items (Section 700 (1) BGB).
International
In Switzerland , the custody contract is called the " deposit agreement " and is regulated in Art. 472 OR , which allows both free and paid deposits. The custodian (“custodian”) may not use the deposited item ( Art. 474 OR) and must return it to the depositor at any time ( Art. 475 OR).
In Austria , according to Section 957 of the Austrian Civil Code, it is a safekeeping contract if someone takes care of someone else's property . The custodian neither becomes the owner nor the owner, nor does he receive a right of use; he is the mere owner with the obligation to secure the thing entrusted to him from damage ( § 958 ABGB). Is the depositary of the use of custody thing permitted, then the custody agreement transformed according to § 959 Civil Code in consumable things into a loan agreement and non-consumable things into a lending agreement . The main duty of the custodian is to carefully keep the thing entrusted to him for a certain period of time and, after the same, to return it to the depositor in the condition in which he took it over ( § 961 ABGB).
The custody agreement in common law ( English custody agreement ) is regulated in the law of bailment ( German custody act ), which provides for free custody ( English deposit ) and paid custody ( English hire of custody ), the main obligation of which is the custody of a third party Thing exists. According to French law, the deposit ( French dépôt ) of movable property (Art. 1918 Code civil , CC) is essentially a free contract (Art. 1917 CC) which, as a consensual agreement, only becomes legally effective when it is handed over (Art. 1919 CC).
See also
Individual evidence
- ↑ Otto Palandt / Hartwig Sprau, BGB commentary , 73rd edition, 2014, § 688 Rn. 3
