Francisci Hotomani iurisconsulti observationum liber IIII

he affirms there are two types of deposited things, just as there are of leased things. The first, when it is agreed that the same thing be returned: the second, when an equal amount is returned: and because of this, the latter is considered a credit. When someone has deposited counted money, he says, in such a way that he did not hand it over sealed or signed, for it is enough if an equal amount is returned. But Paulus, who it is agreed wrote notes on Papinianus, writes according to the opinion of Alfenus that interest is unhesitatingly owed in the name of that money, in law if a sack 29, section 1, Digest, on deposit. But what he had written a little earlier in law Publia 26, section 1, on the pact of interest, may seem wondrous. For when there had been a pact from the deposit of money that interest should be paid, he responded, the text says, that that contract exceeded the nature of deposited money. And therefore, according to the agreement, interest can also be sought by the action of deposit. Where two things seem to me very obscure, not to say absurd: first, that from that agreement, which is not a deposit, interest is owed by pact, when, as we said above, from that agreement by which one has entered into a credit, it is not owed by pact. Then that more absurd thing: that because this is not a deposit, an action of deposit is appropriate. So that there is no doubt for me that Paulus, dissenting from Papinianus, had written: That contract does NOT exceed the nature of deposited money. This also dawned on Accursius, and it is consistent with the opinion of Alfenus. Come: now let us hear the others. For Ulpianus, an almost constant adversary of Paulus, reinforced by the factions of authors, in law condictio for a certain thing 9, last section, and the following law, Digest, on credit, opposes Nerva, Proculus, and Marcellus, to whom he writes it pleased that this agreement is not a deposit but a quasi-loan, and that a condictio a legal action for recovery of debt for a certain thing is appropriate from it.