Abstract

‘Custodiam praestare’ - The Evolution of an Obligation to Guarantee the Safekeeping of an Object in the Roman Law

Summary

This article focuses on the evolution of an obligation to guarantee the
safekeeping o f an object (custodiam praestare). This kind of a duty arose in
all contracts in which the debtor received things for his own interest. The
limits of liability were discussed by the earlier jurists (veteres) in the
contract of loan for use (commodatum). In the first analyzed text
(D. 13,6,5,6) the problem concerned the necessity of safekeeping of a slave
loaned for use; the second case (D. 13,6,5,9) discussed the duty of
safekeeping of a thing accompanying the main object of a contract. The
argumentation adopted by the veteres proves that already for the early
jurists the very obligation to keep safe o f an object in commodatum was
unquestionable: they were rather to decide arising troublesome
controversies.

The meaning of custodiam praestare as an obligation to guarantee the
safekeeping of an object and the problem when such an obligation arose
was analyzed by Gaius in his commentary to the provincial edict
(D. 19,2,40 and D. 4,9,5 pr.). The jurist laid down that the duty to keep
an object safe is not a principal obligation in agreements contracted with
the seamen, inn- and stable-keepers, they were liable for the safekeeping in
the same way as fullers and tailors. The obligation custodiam praestare in
case of fullo and sarcinator was clarified in Gaius’ Institutiones (G. 3,205­
-207): a party was liable for safekeeping of an object, when it received the
object for its own interest.

Custodiam praestare evolved by way of an interpretation o f the term
custodia. The first concept of liability for safekeeping of an object was
restricted to theft (D. 13,6,19) and it did not include damage induced by
a third party. Subsequently, Marcellus introduced a wider interpretation of
safekeeping: a party would be liable for not returning the object kept, as
long as the activity of custodia would have been enough to avoid an
unlawful damage (D. 19,2,41).

This understanding broadened the limits of liability: eventually, towards
the end of the classical period custodia apparently covered every loss but for
the case of force majeure (D. 13,7,13,1). In the postclassical period there
seems to have occurred a change in the regime of custodia liability. M any
a text brings a new formulation: instead of custodiam praestare we find the
expression diligentia in custodiendo, thus one could think that this kind of
liability was then based on negligence. Nevertheless, this terminological
alteration did not affect the limits of liability. The person under the
obligation to keep an object safe remained liable for the loss thereof and
could only be exonerated by proving that the loss was due to vis maior
(D. 18,6,2,1).