Abstract
Under the contract of deposit in Roman law the depositee (also called depositary) was only responsible for dolus and eventually for culpa lata in justinianic law. However, this only applied to cases of depositum regulare, i.e., deposit of non-fungible things. It seems the situation was different when fungible things were the object of the contract (depositum irregulare). The objective of this paper is to explore this claim and determine whether it was really so on the basis of the primary sources of Roman law.
As the object of depositum irregulare were the fungibles, it seems that the general rule genus perire non censetur applied. This is at least suggested by both Paulus (Coll. 10, 7, 9) and Ulpian in D 12, 1, 9, 9. This means that the depositee bore the danger of a fortuitous case happening, i.e., periculum. Besides that, some more rules concerning liability of the depositee seem to have existed. The D. 16, 3, 24 implies that the depositee always had to keep as many fungible things at his disposal as he owed. This question also shows a need for a more multidisciplinary approach employing mostly economy because it would appear Romans favoured full reserves banking to the fractional reserves one. Depositors were also preferred among other creditors in case a depositee (a banker) went bankrupt (D. 16, 3, 7, 2 and D. 42, 5, 24, 2).
Finally, a short conclusion follows.