"
"
Deposits of fungible goods (like money), also called irreg-
ular deposits, perform an important social function which
cannot be fulfilled by regular deposits, understood as deposits
of specific goods. It would be senseless and very costly to
deposit oil in separate, numbered containers (that is, as sealed
deposits in which ownership is not transferred), or to place
bills in an individually-numbered, sealed envelope. Though
these extreme cases would constitute regular deposits in
which ownership is not transferred, they would mean a loss of
the extraordinary efficiency and cost reduction which result
from treating individual deposits jointly and indistinctly from
one another6at no cost nor loss of availability to the depositor,
who is just as happy if, when he requests it, he receives a tan-
tundem equal in quantity and quality, but not identical in
terms of specific content, to that which he originally handed
over. The irregular deposit has other advantages as well. In
6
Money, Bank Credit, and Economic Cycles
6In the specific case of the monetary irregular deposit, the occasional use
of cashier services offered by banks is an additional advantage.
the regular deposit, or deposit of specific goods, the depositary
is not responsible for the loss of a good due to an inevitable
accident or act of God, while in the irregular deposit, the
depositary is responsible even in the case of an act of God.
Therefore, in addition to the traditional advantages of imme-
diate availability and safekeeping of the entire deposit, the
irregular deposit acts as a type of insurance against the possi-
bility of loss due to inevitable accidents.7
THE FUNDAMENTAL ELEMENT IN THE
MONETARY IRREGULAR DEPOSIT
In the irregular deposit, the obligation to guard and pro-
tect the goods deposited, which is the fundamental element in
all deposits, takes the form of an obligation to always main-
tain complete availability of the tantundem in favor of the
depositor. In other words, whereas in the regular deposit the
specific good deposited must be continually guarded consci-
entiously and in individuo, in the deposit of fungible goods,
what must be continually guarded, protected and kept avail-
able to the depositor is the tantundem; that is, the equivalent
in quantity and quality to the goods originally handed over.
This means that in the irregular deposit, custody consists of the
obligation to always keep available to the depositor goods of the
same quantity and quality as those received. This availability,
though the goods be continually replaced by others, is the equiv-
alent in the case of fungible goods of keeping the in individuo
good in the case of non-fungibles. In other words, the owner
of the grain warehouse or oil tank can use the specific oil or
grain he receives, either for his own use or to return to
7As Pasquale Coppa-Zuccari wisely points out,
a differenza del deposito regolare, l’irregolare gli garantisce la
restituzione del tantundem nella stessa specie e qualità, sem-
pre ed in ogni caso. . . . Il deponente irregolare è garantito
contro il caso fortuito, contro il quale il depositario regolare
non lo garantisce; trovasi anzi in una condizione economica-
mente ben più fortunata che se fosse assicurato. (See Pasquale
Coppa-Zuccari, Il deposito irregolare [Modena: Biblioteca dell’
Archivio Giuridico Filippo Serafini, 1901], vol. 6, pp. 109–10)
The Legal Nature of the Monetary Irregular-Deposit Contract 7
another depositor, as long as he maintains available to the origi-
nal depositor oil or grain of the same quantity and quality as those
deposited. In the deposit of money the same rule applies. If a
friend gives you a twenty-dollar bill in deposit, we may con-
sider that he transfers to you the ownership of the specific bill,
and that you may use it for your own expenses or for any
other use, as long as you keep the equivalent amount (in the
form of another bill or two ten-dollar bills), so that the
moment he requests you repay him, you can do so immedi-
ately with no problem and no need for excuses.8
8
Money, Bank Credit, and Economic Cycles
8Coppa-Zuccari may have expressed this essential principle of the irreg-
ular deposit better than anyone when he said that the depositary
risponde della diligenza di un buon padre di famiglia
indipendentemente da quella che esplica nel giro ordinario
della sua vita economica e giuridica. Il depositario invece,
nella custodia delle cose ricevute in deposito, deve spiegare la
diligenza, quam suis rebus adhibere solet. E questa diligenza
diretta alla conservazione delle cose propie, il depositario
esplica: in rapporto alle cose infungibili, con l’impedire che
esse si perdano o si deteriorino; il rapporto alle fungibili, col
curare di averne sempre a disposizione la medesima quantità
e qualità. Questo tenere a disposizione una eguale quantità è
qualità di cose determinate, si rinnovellino pur di continuo e
si sostituiscano, equivale per le fungibili a ciò che per le
infungibili è l’esistenza della cosa in individuo. (Coppa-Zuc-
cari, Il deposito irregolare, p. 95)
Joaquín Garrigues states the same opinion in Contratos bancarios
(Madrid, 1975), p. 365, and Juan Roca Juan also expresses it in his article
on the deposit of money (Comentarios al Código Civil y Compilaciones
Forales, under the direction of Manuel Albaladejo, tome 22, vol. 1, Edito-
rial Revista del Derecho Privado EDERSA [Madrid, 1982], pp. 246–55), in
which he arrives at the conclusion that in the irregular deposit the safe-
keeping obligation means precisely that the depositary
must keep the quantity deposited available to the depositor at
all times, and therefore must keep the number of units of the
sort deposited necessary to return the amount when it is
requested of him. (p. 251)
In other words, in the case of the monetary irregular deposit, the safe-
keeping obligation means the demand for a continuous 100-percent
cash reserve.
To sum up, the logic behind the institution of irregular
deposit is based on universal legal principles and suggests that
the essential element of custody or safekeeping necessitates the
continuous availability to the depositor of a tantundem equal to
the original deposit. In the specific case of money, the quintes-
sential fungible good, this means the safekeeping obligation
requires the continuous availability to the depositor of a 100-
percent cash reserve.
RESULTING EFFECTS OF THE FAILURE TO COMPLY
WITH THE ESSENTIAL OBLIGATION IN THE IRREGULAR DEPOSIT
When there is a failure to comply with the obligation of
safekeeping in a deposit, as is logical, it becomes necessary to
indemnify the depositor, and if the depositary has acted
fraudulently and has employed the deposited good for his
own personal use, he has committed the offense of misappro-
priation. Therefore, in the regular deposit, if someone receives
the deposit of a painting, for example, and sells it to earn
money, he is committing the offense of misappropriation. The
same offense is committed in the irregular deposit of fungible
goods by the depositary who uses deposited goods for his
own profit without maintaining the equivalent tantundem
available to the depositor at all times. This would be the case
of the oil depositary who does not keep in his tanks a quantity
equal to the total deposited with him, or a depositary who
receives money on deposit and uses it in any way for his own
benefit (spending it himself or loaning it), but does not main-
tain a 100-percent cash reserve at all times.9The criminal law
9Other related offenses are committed when a depositary falsifies the
number of deposit slips or vouchers. This would be the case of the oil
depositary who issues false deposit vouchers to be traded by third par-
ties, and in general, of any depositary of a fungible good (including
money) who issues slips or vouchers for a larger amount than that actu-
ally deposited. It is clear that in this case we are dealing with the
offenses of document forgery (the issue of the false voucher) and fraud (if
in issuing the voucher there is an intention to deceive third parties and
obtain a specific profit). Later on we will confirm that the historical
development of banking was based on the perpetration of such criminal
acts in relation to the “business” of issuing banknotes.
The Legal Nature of the Monetary Irregular-Deposit Contract 9
expert Antonio Ferrer Sama has explained that if the deposit
consists of an amount of money and the obligation to return
the same amount (irregular deposit), and the depositary takes
the money and uses it for his own profit, we will have to
determine which of the following situations is the correct
one in order to determine his criminal liability: at the time
he takes the money the depositary has sufficient financial
stability to return at any moment the amount received in
deposit; or, on the contrary, at the time he takes the money
he does not have enough cash of his own with which to meet his
obligation to return the depositor’s money at any moment he
requests it. In the first case the offense of misappropriation
has not been committed. However, if at the time the deposi-
tary takes the deposited amount he does not have enough
cash in his power to fulfill his obligations to the depositor,
he is guilty of misappropriation
from the very moment he takes the goods deposited for his
own use and ceases to possess a tantundem equivalent to the
original deposit.10
10
Money, Bank Credit, and Economic Cycles
10Antonio Ferrer Sama, El delito de apropiación indebida (Murcia: Publica-
ciones del Seminario de Derecho Penal de la Universidad de Murcia,
Editorial Sucesores de Nogués, 1945), pp. 26–27. As we indicated in the
text and Eugenio Cuello Calón also explains (Derecho penal, Barcelona:
Editorial Bosch, 1972, tome 2, special section, 13th ed, vol. 2, pp. 952–53),
the crime is committed the moment it is established that appropriation
or embezzlement has occurred, and the offense actually derives from
the intention of committing the appropriation. Due to their private
nature, these intentions must be perceived by the result of external acts
(like the alienation, consumption or lending of the good). These deeds
generally take place long before the discovery is made by the depositor
who, when he tries to withdraw his deposit, is surprised to find that the
depositary is not able to immediately hand over to him the correspon-
ding tantundem. Miguel Bajo Fernández, Mercedes Pérez Manzano, and
Carlos Suárez González (Manual de derecho penal, special section, “Deli-
tos patrimoniales y económicos” [Madrid: Editorial Centro de Estudios
Ramón Areces, 1993]) also conclude that the offense is committed the
very moment the act of disposal takes place, no matter what the subse-
quent effects are, and continues to be a crime even when the object is
recovered or the perpetrator fails to profit from the appropriation,
regardless of whether the depositary is able to return the tantundem the
COURT DECISIONS ACKNOWLEDGING THE FUNDAMENTAL LEGAL
PRINCIPLES WHICH GOVERN THE MONETARY IRREGULAR-DEPOSIT
CONTRACT (100-PERCENT RESERVE REQUIREMENT)
As late as the twentieth century, court decisions in Europe
have upheld the demand for a 100-percent reserve require-
ment, the embodiment of the essential element of custody and
safekeeping in the monetary irregular deposit. On June 12,
1927, the Court of Paris convicted a banker for the crime of
misappropriation for having used, as was the common practice
in banking, funds deposited with him by a client. On January
4, 1934, another ruling of the same court maintained the same
position.11In addition, when the Bank of Barcelona failed in
moment it is required (p. 421). The same authors contend that there exists
an unacceptable legal loophole in Spanish criminal law, compared to
other legal systems containing
specific provisions for corporate crimes and breach of trust,
under which it would be possible to include the unlawful
behaviors of banks with respect to the irregular deposit of
checking accounts. (p. 429)
In Spanish criminal law, the article governing misappropriation is arti-
cle 252 (mentioned by Antonio Ferrer Sama) of the new 1996 Penal Code
(article 528 of the former), which states:
The penalties specified in article 249 or 250 will be applied to
anyone who, to the detriment of another, appropriates or
embezzles money, goods, securities or any other movable
property or patrimonial asset which he has received on
deposit, on consignment or in trust, or by way of another
claim carrying the obligation to deliver or return the property,
or who denies having received it, when the amount appro-
priated exceeds 300 euros. These penalties will be increased
by 50 percent in the case of a necessary deposit.
Finally, the most thorough work on the criminal aspects of the misap-
propriation of money, which covers in extenso the position of Professors
Ferrer Sama, Bajo Fernández, and others, is by Norberto J. de la Mata
Barranco, Tutela penal de la propiedad y delitos de apropiación: el dinero como
objeto material de los delitos de hurto y apropiación indebida (Barcelona: Pro-
mociones y Publicaciones Universitarias [PPU, Inc.], 1994), esp. pp.
407–08 and 512.
11These judicial rulings appear in Jean Escarra’s Principes de droit com-
mercial, p. 256; Garrigues also refers to them in Contratos bancarios, pp.
367–68.
The Legal Nature of the Monetary Irregular-Deposit Contract 11
Spain, Barcelona’s northern court of original jurisdiction, in
response to protests of checking-account holders demanding
recognition as depositors, pronounced a judgment acknowledg-
ing them as such and identifying their consequent preferential
status as creditors of a bankruptcy claiming title to some of the
assets. The decision was based on the fact that the right of
banks to use cash from checking accounts is necessarily
restricted by the obligation to maintain the uninterrupted
availability of these account funds to the checking-account
holder. As a result, this legal restriction on availability ruled
out the possibility that the bank could consider itself exclusive
owner of funds deposited in a checking account.12 Though the
Spanish Supreme Court did not have the opportunity to rule
on the failure of the Bank of Barcelona, a decision pronounced
by it on June 21, 1928 led to a very similar conclusion:
According to the commercial practices and customs recog-
nized by jurisprudence, the monetary deposit contract con-
sists of the deposit of money with a person who, though he
does not contract the obligation to retain for the depositor
the same cash or assets handed over, must maintain posses-
sion of the amount deposited, with the purpose of returning it, par-
tially or in its entirety, the moment the depositor should claim it;
the depositary does not acquire the right to use the deposit for his
own purposes, since, as he is obliged to return the deposit the
moment it is requested of him, he must maintain constant posses-
sion of sufficient cash to do so.13
12
Money, Bank Credit, and Economic Cycles
12“Dictamen de Antonio Goicoechea,” in La Cuenta corriente de efectos o
valores de un sector de la banca catalana y el mercado libre de valores de
Barcelona (Madrid: Imprenta Delgado Sáez, 1936), pp. 233–89, esp. pp.
263–64. Garrigues also refers to this ruling in Contratos bancarios, p.
368.
13José Luis García-Pita y Lastres cites this decision in his paper, “Los
depósitos bancarios de dinero y su documentación,” which appeared in
La revista de derecho bancario y bursátil (Centro de Documentación Ban-
caria y Bursátil, October–December 1993), pp. 919–1008, esp. p. 991.
Garrigues also makes reference to this ruling in Contratos bancarios, p.
387
ular deposits, perform an important social function which
cannot be fulfilled by regular deposits, understood as deposits
of specific goods. It would be senseless and very costly to
deposit oil in separate, numbered containers (that is, as sealed
deposits in which ownership is not transferred), or to place
bills in an individually-numbered, sealed envelope. Though
these extreme cases would constitute regular deposits in
which ownership is not transferred, they would mean a loss of
the extraordinary efficiency and cost reduction which result
from treating individual deposits jointly and indistinctly from
one another6at no cost nor loss of availability to the depositor,
who is just as happy if, when he requests it, he receives a tan-
tundem equal in quantity and quality, but not identical in
terms of specific content, to that which he originally handed
over. The irregular deposit has other advantages as well. In
6
Money, Bank Credit, and Economic Cycles
6In the specific case of the monetary irregular deposit, the occasional use
of cashier services offered by banks is an additional advantage.
the regular deposit, or deposit of specific goods, the depositary
is not responsible for the loss of a good due to an inevitable
accident or act of God, while in the irregular deposit, the
depositary is responsible even in the case of an act of God.
Therefore, in addition to the traditional advantages of imme-
diate availability and safekeeping of the entire deposit, the
irregular deposit acts as a type of insurance against the possi-
bility of loss due to inevitable accidents.7
THE FUNDAMENTAL ELEMENT IN THE
MONETARY IRREGULAR DEPOSIT
In the irregular deposit, the obligation to guard and pro-
tect the goods deposited, which is the fundamental element in
all deposits, takes the form of an obligation to always main-
tain complete availability of the tantundem in favor of the
depositor. In other words, whereas in the regular deposit the
specific good deposited must be continually guarded consci-
entiously and in individuo, in the deposit of fungible goods,
what must be continually guarded, protected and kept avail-
able to the depositor is the tantundem; that is, the equivalent
in quantity and quality to the goods originally handed over.
This means that in the irregular deposit, custody consists of the
obligation to always keep available to the depositor goods of the
same quantity and quality as those received. This availability,
though the goods be continually replaced by others, is the equiv-
alent in the case of fungible goods of keeping the in individuo
good in the case of non-fungibles. In other words, the owner
of the grain warehouse or oil tank can use the specific oil or
grain he receives, either for his own use or to return to
7As Pasquale Coppa-Zuccari wisely points out,
a differenza del deposito regolare, l’irregolare gli garantisce la
restituzione del tantundem nella stessa specie e qualità, sem-
pre ed in ogni caso. . . . Il deponente irregolare è garantito
contro il caso fortuito, contro il quale il depositario regolare
non lo garantisce; trovasi anzi in una condizione economica-
mente ben più fortunata che se fosse assicurato. (See Pasquale
Coppa-Zuccari, Il deposito irregolare [Modena: Biblioteca dell’
Archivio Giuridico Filippo Serafini, 1901], vol. 6, pp. 109–10)
The Legal Nature of the Monetary Irregular-Deposit Contract 7
another depositor, as long as he maintains available to the origi-
nal depositor oil or grain of the same quantity and quality as those
deposited. In the deposit of money the same rule applies. If a
friend gives you a twenty-dollar bill in deposit, we may con-
sider that he transfers to you the ownership of the specific bill,
and that you may use it for your own expenses or for any
other use, as long as you keep the equivalent amount (in the
form of another bill or two ten-dollar bills), so that the
moment he requests you repay him, you can do so immedi-
ately with no problem and no need for excuses.8
8
Money, Bank Credit, and Economic Cycles
8Coppa-Zuccari may have expressed this essential principle of the irreg-
ular deposit better than anyone when he said that the depositary
risponde della diligenza di un buon padre di famiglia
indipendentemente da quella che esplica nel giro ordinario
della sua vita economica e giuridica. Il depositario invece,
nella custodia delle cose ricevute in deposito, deve spiegare la
diligenza, quam suis rebus adhibere solet. E questa diligenza
diretta alla conservazione delle cose propie, il depositario
esplica: in rapporto alle cose infungibili, con l’impedire che
esse si perdano o si deteriorino; il rapporto alle fungibili, col
curare di averne sempre a disposizione la medesima quantità
e qualità. Questo tenere a disposizione una eguale quantità è
qualità di cose determinate, si rinnovellino pur di continuo e
si sostituiscano, equivale per le fungibili a ciò che per le
infungibili è l’esistenza della cosa in individuo. (Coppa-Zuc-
cari, Il deposito irregolare, p. 95)
Joaquín Garrigues states the same opinion in Contratos bancarios
(Madrid, 1975), p. 365, and Juan Roca Juan also expresses it in his article
on the deposit of money (Comentarios al Código Civil y Compilaciones
Forales, under the direction of Manuel Albaladejo, tome 22, vol. 1, Edito-
rial Revista del Derecho Privado EDERSA [Madrid, 1982], pp. 246–55), in
which he arrives at the conclusion that in the irregular deposit the safe-
keeping obligation means precisely that the depositary
must keep the quantity deposited available to the depositor at
all times, and therefore must keep the number of units of the
sort deposited necessary to return the amount when it is
requested of him. (p. 251)
In other words, in the case of the monetary irregular deposit, the safe-
keeping obligation means the demand for a continuous 100-percent
cash reserve.
To sum up, the logic behind the institution of irregular
deposit is based on universal legal principles and suggests that
the essential element of custody or safekeeping necessitates the
continuous availability to the depositor of a tantundem equal to
the original deposit. In the specific case of money, the quintes-
sential fungible good, this means the safekeeping obligation
requires the continuous availability to the depositor of a 100-
percent cash reserve.
RESULTING EFFECTS OF THE FAILURE TO COMPLY
WITH THE ESSENTIAL OBLIGATION IN THE IRREGULAR DEPOSIT
When there is a failure to comply with the obligation of
safekeeping in a deposit, as is logical, it becomes necessary to
indemnify the depositor, and if the depositary has acted
fraudulently and has employed the deposited good for his
own personal use, he has committed the offense of misappro-
priation. Therefore, in the regular deposit, if someone receives
the deposit of a painting, for example, and sells it to earn
money, he is committing the offense of misappropriation. The
same offense is committed in the irregular deposit of fungible
goods by the depositary who uses deposited goods for his
own profit without maintaining the equivalent tantundem
available to the depositor at all times. This would be the case
of the oil depositary who does not keep in his tanks a quantity
equal to the total deposited with him, or a depositary who
receives money on deposit and uses it in any way for his own
benefit (spending it himself or loaning it), but does not main-
tain a 100-percent cash reserve at all times.9The criminal law
9Other related offenses are committed when a depositary falsifies the
number of deposit slips or vouchers. This would be the case of the oil
depositary who issues false deposit vouchers to be traded by third par-
ties, and in general, of any depositary of a fungible good (including
money) who issues slips or vouchers for a larger amount than that actu-
ally deposited. It is clear that in this case we are dealing with the
offenses of document forgery (the issue of the false voucher) and fraud (if
in issuing the voucher there is an intention to deceive third parties and
obtain a specific profit). Later on we will confirm that the historical
development of banking was based on the perpetration of such criminal
acts in relation to the “business” of issuing banknotes.
The Legal Nature of the Monetary Irregular-Deposit Contract 9
expert Antonio Ferrer Sama has explained that if the deposit
consists of an amount of money and the obligation to return
the same amount (irregular deposit), and the depositary takes
the money and uses it for his own profit, we will have to
determine which of the following situations is the correct
one in order to determine his criminal liability: at the time
he takes the money the depositary has sufficient financial
stability to return at any moment the amount received in
deposit; or, on the contrary, at the time he takes the money
he does not have enough cash of his own with which to meet his
obligation to return the depositor’s money at any moment he
requests it. In the first case the offense of misappropriation
has not been committed. However, if at the time the deposi-
tary takes the deposited amount he does not have enough
cash in his power to fulfill his obligations to the depositor,
he is guilty of misappropriation
from the very moment he takes the goods deposited for his
own use and ceases to possess a tantundem equivalent to the
original deposit.10
10
Money, Bank Credit, and Economic Cycles
10Antonio Ferrer Sama, El delito de apropiación indebida (Murcia: Publica-
ciones del Seminario de Derecho Penal de la Universidad de Murcia,
Editorial Sucesores de Nogués, 1945), pp. 26–27. As we indicated in the
text and Eugenio Cuello Calón also explains (Derecho penal, Barcelona:
Editorial Bosch, 1972, tome 2, special section, 13th ed, vol. 2, pp. 952–53),
the crime is committed the moment it is established that appropriation
or embezzlement has occurred, and the offense actually derives from
the intention of committing the appropriation. Due to their private
nature, these intentions must be perceived by the result of external acts
(like the alienation, consumption or lending of the good). These deeds
generally take place long before the discovery is made by the depositor
who, when he tries to withdraw his deposit, is surprised to find that the
depositary is not able to immediately hand over to him the correspon-
ding tantundem. Miguel Bajo Fernández, Mercedes Pérez Manzano, and
Carlos Suárez González (Manual de derecho penal, special section, “Deli-
tos patrimoniales y económicos” [Madrid: Editorial Centro de Estudios
Ramón Areces, 1993]) also conclude that the offense is committed the
very moment the act of disposal takes place, no matter what the subse-
quent effects are, and continues to be a crime even when the object is
recovered or the perpetrator fails to profit from the appropriation,
regardless of whether the depositary is able to return the tantundem the
COURT DECISIONS ACKNOWLEDGING THE FUNDAMENTAL LEGAL
PRINCIPLES WHICH GOVERN THE MONETARY IRREGULAR-DEPOSIT
CONTRACT (100-PERCENT RESERVE REQUIREMENT)
As late as the twentieth century, court decisions in Europe
have upheld the demand for a 100-percent reserve require-
ment, the embodiment of the essential element of custody and
safekeeping in the monetary irregular deposit. On June 12,
1927, the Court of Paris convicted a banker for the crime of
misappropriation for having used, as was the common practice
in banking, funds deposited with him by a client. On January
4, 1934, another ruling of the same court maintained the same
position.11In addition, when the Bank of Barcelona failed in
moment it is required (p. 421). The same authors contend that there exists
an unacceptable legal loophole in Spanish criminal law, compared to
other legal systems containing
specific provisions for corporate crimes and breach of trust,
under which it would be possible to include the unlawful
behaviors of banks with respect to the irregular deposit of
checking accounts. (p. 429)
In Spanish criminal law, the article governing misappropriation is arti-
cle 252 (mentioned by Antonio Ferrer Sama) of the new 1996 Penal Code
(article 528 of the former), which states:
The penalties specified in article 249 or 250 will be applied to
anyone who, to the detriment of another, appropriates or
embezzles money, goods, securities or any other movable
property or patrimonial asset which he has received on
deposit, on consignment or in trust, or by way of another
claim carrying the obligation to deliver or return the property,
or who denies having received it, when the amount appro-
priated exceeds 300 euros. These penalties will be increased
by 50 percent in the case of a necessary deposit.
Finally, the most thorough work on the criminal aspects of the misap-
propriation of money, which covers in extenso the position of Professors
Ferrer Sama, Bajo Fernández, and others, is by Norberto J. de la Mata
Barranco, Tutela penal de la propiedad y delitos de apropiación: el dinero como
objeto material de los delitos de hurto y apropiación indebida (Barcelona: Pro-
mociones y Publicaciones Universitarias [PPU, Inc.], 1994), esp. pp.
407–08 and 512.
11These judicial rulings appear in Jean Escarra’s Principes de droit com-
mercial, p. 256; Garrigues also refers to them in Contratos bancarios, pp.
367–68.
The Legal Nature of the Monetary Irregular-Deposit Contract 11
Spain, Barcelona’s northern court of original jurisdiction, in
response to protests of checking-account holders demanding
recognition as depositors, pronounced a judgment acknowledg-
ing them as such and identifying their consequent preferential
status as creditors of a bankruptcy claiming title to some of the
assets. The decision was based on the fact that the right of
banks to use cash from checking accounts is necessarily
restricted by the obligation to maintain the uninterrupted
availability of these account funds to the checking-account
holder. As a result, this legal restriction on availability ruled
out the possibility that the bank could consider itself exclusive
owner of funds deposited in a checking account.12 Though the
Spanish Supreme Court did not have the opportunity to rule
on the failure of the Bank of Barcelona, a decision pronounced
by it on June 21, 1928 led to a very similar conclusion:
According to the commercial practices and customs recog-
nized by jurisprudence, the monetary deposit contract con-
sists of the deposit of money with a person who, though he
does not contract the obligation to retain for the depositor
the same cash or assets handed over, must maintain posses-
sion of the amount deposited, with the purpose of returning it, par-
tially or in its entirety, the moment the depositor should claim it;
the depositary does not acquire the right to use the deposit for his
own purposes, since, as he is obliged to return the deposit the
moment it is requested of him, he must maintain constant posses-
sion of sufficient cash to do so.13
12
Money, Bank Credit, and Economic Cycles
12“Dictamen de Antonio Goicoechea,” in La Cuenta corriente de efectos o
valores de un sector de la banca catalana y el mercado libre de valores de
Barcelona (Madrid: Imprenta Delgado Sáez, 1936), pp. 233–89, esp. pp.
263–64. Garrigues also refers to this ruling in Contratos bancarios, p.
368.
13José Luis García-Pita y Lastres cites this decision in his paper, “Los
depósitos bancarios de dinero y su documentación,” which appeared in
La revista de derecho bancario y bursátil (Centro de Documentación Ban-
caria y Bursátil, October–December 1993), pp. 919–1008, esp. p. 991.
Garrigues also makes reference to this ruling in Contratos bancarios, p.
387
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