LA PRESCRIPCIÓN Y LA SEGURIDAD JURÍDICA.

Abstract

To allow a depositary to appropriate deposited assets unclaimed by their depositor would be to propitiate plundering through perniciously permissive legislation. It would be as uncalled-for and as absurd as if the law were to allow property registrars to appropriate for themselves any property registered at their office that is not involved in transactions for some length of time. From the Supreme Court's interesting sentence we differ only on the point referring to the term applicable to the lapsing of deposits. We believe that this term is twenty years instead of the fifteen the sentence advises, for several reasons: 1. Because article 1964 of the Civil Code, which establishes the fifteen-year lapse as the general term for credits, allows other provisions of law to establish different terms, and this is what the National Budget Law does in setting the twenty-year term. 2. Because the National Budget Law states that it is the State who acquires lapsed deposits, but only when twenty years have passed; if the depositor's action lapses after fifteen years, the depositary would have recourse to an exception to oppose any claim by the depositor, but even so it would not acquire the deposited assets, because the State is to acquire their ownership (albeit not yet). The depositary does not possess as an owner, or in good faith, and therefore it can never acquire by usucaption assets contained in regular, closed, sealed deposits. If a depositary attempts to take over a deposit, it will be committing an offence of misappropriation under article 535 of the Penal Code. Actually, the depositor will never have lost ownership of the deposited assets at all, because, in order for such a loss to occur, the depositor must have ceased to possess the assets; but this has not happened, because the depositor has possessed them through the mediation of the depositary during the entire time of the deposit. If the depositary can acquire the assets through usucaption (which is not possible), its time of acquisition would have to be calculated (Civil Code, article 1956) several years after the appropriation, following the lapse of the offence it would have committed.