Short answer. A gratuitous depositary must exercise reasonable care to keep your property safely and return it on demand. Article 1972 says that when the deposit is free of charge, this fact is taken into account in judging the degree of care required — meaning the standard is calibrated, not eliminated. They are still responsible for loss caused by their negligence.
What the law says
If the deposit is gratuitous, this fact shall be taken into account in determining the degree of care that the depositary must observe.
Civil Code, Article 1972 — Depositary's Duty to Keep and Return. Read the full provision →
The basic duty to keep and return
Article 1972 states the depositary's two core obligations: keep the thing safely and return it when required, either to you or to the person you designated in the contract. These duties apply regardless of whether the deposit is paid or gratuitous. The depositary does not get to decide unilaterally that the item is not worth keeping carefully just because you are not paying them.
How the gratuitous nature adjusts the standard
The provision says that when the deposit is free, that fact "shall be taken into account in determining the degree of care." This is a calibration, not an exemption. The standard is not reduced to zero; it is reduced from whatever a paid professional custodian would owe to what a reasonable person would do under the same circumstances, accounting for the fact that no compensation was received. Carelessness that causes your property to be lost or damaged is still actionable — but a court assessing whether that carelessness occurred will consider that the depositary was doing this without pay.
What the depositary is still responsible for
Even in a gratuitous deposit, the depositary cannot simply neglect the item. Under the Civil Code's general rules on responsibility that Article 1972 refers to, a depositary who is negligent in safekeeping is liable for the loss. So if your neighbour is keeping your motorbike for free and leaves it unlocked in the rain, causing the engine to rust, or loans it to someone without your permission who then crashes it, that is a different matter from a theft that could not have been prevented. The gratuitous character matters at the margins — it does not wipe out liability for clear negligence.
What you should do if your property is damaged or lost
If the depositary failed to return your property in the condition it was entrusted, or cannot return it at all, you may demand an accounting of what happened and file a civil action for recovery of the item or its value. Document the condition the item was in when you handed it over — photographs, receipts for its value — and any communications with the depositary about how it was to be kept. The burden of showing that the loss was not their fault shifts to the depositary once you establish you handed the item over and they cannot return 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.
- Joseph Chan, et al. vs. Bonifacio S. Maceda, Jr, G.R. No. 142591, April 30, 2003 — read the decision on LawPhil →