Deposit agreement

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The deposit agreement obliges the depositor to take over a movable item entrusted to him by the depositor and to keep it in a safe place.

General

Like the guarantee, it is part of the security agreements and is regulated in the Swiss Code of Obligations (OR) in Art. 472 ff. OR. The purpose of the deposit agreement is the secure storage of a movable item. The German equivalent of the deposit agreement is the custody agreement .

Legal issues

With every type of deposit agreement, the custodian undertakes to the depositor to take over a movable item and to keep it safe ( Art. 472, Paragraph 1 OR), but can only demand remuneration for it if such was to be expected or had been agreed (Art. 472 para. 2 OR). After all, the depositor has to take on the expenses necessary for the storage ( Art. 473 Paragraph 1 OR) and is also liable for the damage caused by the deposit (Art. 473 Paragraph 2 OR). Normally, he is not liable for chance (cf. Art. 474 Paragraph 2 OR).

The custodian may not use the item without the consent of the depositor (Art. 474, Paragraph 1 OR) and must treat it carefully, which follows from the principle of good faith . If he uses the thing without consent, he owes the depositor a corresponding remuneration and is also liable for any accidental damage to the thing, unless he can prove that this would also have occurred had the contract been fulfilled (Art. 474, Paragraph 2 OR).

The custodian must also surrender the deposited item at any time ( Art. 475 Paragraph 1 OR). However, he can only return them at any time if no specific duration has been contractually agreed ( Art. 476 Para. 2 OR). This means that the claim is due at any time , but can only be fulfilled at the end of the contractually specified contract period . An early return is only possible in the case of a contractually specified contract period if the keeper was unable to keep the item longer in accordance with the contract due to unforeseen circumstances (Art. 472 Paragraph 1 OR). The surrender obligation always applies to the depositor, even if third parties can prove property rights. Only if the property claim (vindication, Art. 641 641 para. 2 OR) has been pending or judicial seizure has been taken, does he not have to surrender the thing ( Art. 479 para. 1 OR).

If a deposit agreement for money is concluded and it is agreed that only the same amount but not the same items are to be returned, the benefit and risk are transferred to the custodian ( Art. 481 para. 1 OR). If cash is handed over for deposit unsealed and unlocked, the law establishes a presumption in favor of the transfer of benefit and risk (Art. 481 Paragraph 2 OR). Such a presumption does not apply to anything other than money, so there must be an express agreement (Art. 481, Paragraph 3 OR).

Storage contract

In Art. 482 OR to Art. 486 OR, specific regulations are set up as a special form of deposit for commercial warehouse transactions .

Innkeepers and stable owners

The Art. 487 et seq. CO treat the special case of restaurant owners that receive people for lodging. Thus, restaurants and the like do not fall under this rule, but only hotels, guest houses and the like. The landlords are liable for the property of the guest, unless the guest is responsible for the damage himself. Only in the event that the innkeeper is not at fault - for example in the event of a break-in at the hotel - the maximum liability amount is limited to CHF 1,000. However, the guest must hand over particularly valuable objects or large amounts of money that he is carrying to the landlord for safekeeping. The landlord cannot evade his liability by providing appropriate information ( Art. 489 OR).

The special case of the stable keeper ( Art. 490 OR), who takes animals for shelter, is no longer of practical relevance today.

Importance in banking

The deposit agreement is one of the legal bases for the custody business of banks. However, the legal rules in the Code of Obligations are not tailored to banking, but to simpler issues.

In the typical business area of a bank, the rules governing the simple deposit agreement apply to closed securities accounts (e.g. safekeeping of wills ), as well as to the safekeeping of securities in the name of the depositor. In the latter case, however, there is often a contractual relationship that represents a mixture of deposit agreement and mandate law, because certain tasks, for example redeeming coupons, are assigned to the bank

example
  • Customer A brings the bank SFr. 500 in a sealed envelope for your depot
  • Customer A books shares in his custody account at Bank B.

literature

  • Gattlen Thomas: General legal studies. For universities of applied sciences and higher vocational training. 4th revised, supplemented and updated edition. Education Sauerländer, Aarau 2003, ISBN 3-03-450091-2 , p. 213 ff.