According to the provisions of article 1185 of the Civil Code, “Deposit is the contract by which one of the parties delivers a thing, movable or immovable, to the other so that he may keep it and return it when it is demanded.”
It is a contract of continuous execution, not subject to a special form - however, deposit “titles” (tickets) can be issued, and the necessary condition for its effective constitution is the tradition of the thing, i.e. the actual deposit.
In turn, it can be a contract made free of charge or for consideration (see art. 1158, applicable ex vi art. 1185, both of the Civil Code).
As for the depositary's remuneration, according to Article 1200(1) of the Civil Code, “when nothing else has been agreed, it shall be paid at the end of the deposit; but if it is fixed by periods of time, it shall be paid at the end of each one”.
It is therefore one of the depositor's obligations to pay the depositary the remuneration due. - cfr. al. a) of article 1199 of the Civil Code.
Having analyzed these characteristics, there are certainly a number of realities that could fall under this specific contract.
However, while stressing that, often - and in accordance with the freedom of contract as set out in art. 405 of the C.C., “Within the limits of the law, the parties have the power to freely determine the content of contracts, enter into contracts other than those provided for in this code or include in them the clauses they wish”, as well as “bring together in the same contract the rules of two or more businesses, wholly or partially regulated by law.” - the aforementioned rules may include other contracts, it is certain that, with regard to the issue at hand - theft of vehicles in paid parking lots (including shopping centers/garages), it should be classified as a deposit contract.
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Thus,
With regard to the depositary's obligations, according to article 1187, the depositary is obliged to
a) To keep the deposited item;
b) To notify the depositor immediately when they know that the item is threatened by danger or that a third party is asserting rights over it, provided that the fact is unknown to the depositor;
c) To return the item with its fruits.
The crux of the issue at hand here concerns the liability of the depositary in the event of vehicle theft.
According to Article 1188(1) of the Civil Code, “If the custodian is deprived of the possession of the thing for a reason for which he is not responsible, he shall be released from the obligations of custody and restitution, but shall immediately inform the depositor of the deprivation”.
The obligation to compensate, on the other hand, presupposes “mere fault” under the terms of Articles 483 and 486 of the Civil Code.
(“Whoever, with intent or mere fault, unlawfully violates the right of another or any legal provision intended to protect the interests of others shall be obliged to compensate the injured party for the damages resulting from the violation”, and “Simple omissions give rise to the obligation to compensate for damages when, regardless of the other legal requirements, there was, by virtue of the law or a legal transaction, a duty to perform the omitted act.”) - (Article 483(1) and 486 of the Civil Code, respectively).
And, under the terms of articles 790 and 799, both of the Civil Code, the depositary's obligation to make restitution will only be removed if he proves that the theft was not his fault.
(“The obligation is extinguished when the performance becomes impossible for reasons not attributable to the debtor”, and “It is the debtor's responsibility to prove that the failure to perform or the defective performance of the obligation is not his fault” - Article 790(1) and Article 799(1) of the Civil Code, respectively).
Thus, the depositary has the obligation to prevent the loss or dissipation of deposited goods, and must guard them and perform his duties with the diligence and zeal required of a good family man.
In this context, in order to determine the verification of this criterion and with regard to the steps necessary for the depositary to be released from his obligations, as examples of the case law of the Higher Courts we highlight the following:
In a judgment dated 11-10-2005, the Porto Court of Appeal ruled that
“II - In order to avoid this, it is not enough to prove that the entrance to the vehicle storage area was closed, the lock was broken during the night, and the premises had an audible alarm installed inside which could be switched off in a few seconds”, and that
“III - In order to act with the diligence of the bonus pater familiae, it would also have to demonstrate the existence of a night guard in the car park, an alarm that could not be turned off in an accessible way or with a direct link to a security company or security agents.”
In other words, the Coimbra Court of Appeal held that, in order for the depositary (garage) to be released from its obligation, it must also prove that it has a night watchman and an “effective” alarm, other than a mere siren.
In another vein, the Supreme Court of Justice ruled on 18-04-2006 that
“2 - By itself, the theft of the deposited item may not be sufficient, in concrete terms, to exonerate the depositary from liability for failure to comply with the obligation of custody and restitution in the case of a deposit contract concluded with a professional depositary (car collection garage for a certain price)”, although,
“3 - Liability, however, can be excluded if the perpetrators of the theft of a vehicle collected in a garage had, in order to commit the crime, to break the lock on the entrance door to the collection yard and the office where the keys to the vehicle were kept in a drawer (which they also forced), as well as disabling the existing audible alarm.”
In order to do so, they based their argument on the fact that “It is hard to see how such obstacles can be qualified as merely ‘primary’ security measures when it is certain that the behavior of the perpetrators of the theft, objectively analyzed, leads one to assume that they would use ‘anything’ to achieve their intent, and the presence of a night watchman and a guard dog, the connection to a security company, or even the installation of any video surveillance system would not deter them.”
It is true that, since then, the means of surveillance and security have evolved (as have the known means of committing crimes) in such a way that the minimum obligations to be considered for this purpose will be quite different, so it is up to the Courts, according to the specific case, and always considering the means presumably known to the depositor - since for this purpose, the information advertised should be considered, as well as the price to be paid - to decide accordingly what the minimum requirements are to exonerate the depositary from his responsibility in the event of theft.
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Final note: Right of retention
In order to guarantee the depositary's claims described above (cf. art. 1199 C.C.), the depositary enjoys, under the terms of art. 755(1)(e) C.C., the right of retention over the thing deposited.
(“The depositary and the lessee also enjoy the right of retention (...) over the things delivered to them as a result of the respective contracts, for the credits resulting therefrom”).
So if you don't pay, the “gate” won't open.
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