Short answer. No. Article 1977 provides that the depositary cannot make use of the thing deposited without the express permission of the depositor, and is otherwise liable for damages. The single exception is where preservation of the thing requires its use, and then only for that purpose.
What the law says
The depositary cannot make use of the thing deposited without the express permission of the depositor. Otherwise, he shall be liable for damages. However, when the preservation of the thing deposited requires its use, it must be used but only for that purpose.
Civil Code, Article 1977 — No Use Without Permission. Read the full provision →
Safekeeping is the whole of the arrangement
Article 1977 states that The depositary cannot make use of the thing deposited without the express permission of the depositor. Otherwise, he shall be liable for damages. However, when the preservation of the thing deposited requires its use, it must be used but only for that purpose. The prohibition follows from what a deposit is. Article 1962 describes it as constituted from the moment a person receives a thing belonging to another with the obligation of safely keeping it and returning the same, and adds that where safekeeping is not the principal purpose there is no deposit but some other contract.
Permission has to be express, and proved
Custodians sometimes argue that use was understood, or that the owner would not have minded. Article 1978 forecloses that: the permission shall not be presumed, and its existence must be proved. It also explains why the point matters so much. Where the depositary has permission to use the thing, the contract loses the concept of a deposit and becomes a loan or a commodatum, except where safekeeping is still the principal purpose. The label changes the obligations of both sides, so a caretaker claiming permission is claiming a different contract altogether.
Use for preservation is a duty, not a licence
The exception is drawn tightly and it cuts both ways. Where preservation requires use, the article says the thing must be used, so a custodian holding a vehicle, a generator or a horse cannot let it deteriorate on the theory that touching it is forbidden. But the permitted use is only what preservation calls for. Running an engine periodically is preservation; using the vehicle for errands is not. The safe practice for a custodian is to record what he did and why, and for an owner to state in writing what maintenance he expects.
What unauthorised use costs
Beyond damages, the exposure shifts dramatically. Article 1979 makes the depositary liable for loss of the thing through a fortuitous event where it is so stipulated, where he uses the thing without the depositor's permission, where he delays its return, or where he allows others to use it even though he himself was authorised. A custodian who took the item out without permission therefore answers even for a flood or a fire that would otherwise have excused him. If your property came back with mileage, wear or use it should not have, say so in writing before you collect it.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- Cesar V. Areza and Lolita B. Areza vs. Express Savings Bank, Inc. and Michael Potenciano, G.R. No. 176697, September 10, 2014 — read the decision on LawPhil →
Related provisions
- Civil Code, Article 1977 — No Use Without Permission
- Civil Code, Article 1962 — Deposit Defined
- Civil Code, Article 1978 — Permitted Use Converts the Deposit
- Civil Code, Article 1979 — Liability for Fortuitous Loss