Locati conducti
(Concerning Leasing and Hiring.)
1 Paulus libro trigesimo quarto ad edictum. Locatio et conductio cum naturalis sit et omnium gentium, non verbis, sed consensu contrahitur, sicut emptio et venditio.
1 Paulus, On the Edict, Book XXXIV. Leasing and hiring is a natural transaction common to all nations, and it is contracted not by words but by consent, just like purchase and sale.
2 Gaius libro secundo rerum cottidianarum. Locatio et conductio proxima est emptioni et venditioni isdemque iuris regulis constitit: nam ut emptio et venditio ita contrahitur, si de pretio convenerit, sic et locatio et conductio contrahi intellegitur, si de mercede convenerit. 1Adeo autem familiaritatem aliquam habere videntur emptio et venditio, item locatio et conductio, ut in quibusdam quaeri soleat, utrum emptio et venditio sit an locatio et conductio. ut ecce si cum aurifice mihi convenerit, ut is ex auro suo anulos mihi faceret certi ponderis certaeque formae et acceperit verbi gratia trecenta, utrum emptio et venditio sit an locatio et conductio? sed placet unum esse negotium et magis emptionem et venditionem esse. quod si ego aurum dedero mercede pro opera constituta, dubium non est, quin locatio et conductio sit.
2 Gaius, Daily Events, Book II. Leasing and hiring resembles purchase and sale, and is established by the same rules of law. For as purchase and sale is contracted by an agreement as to the price to be paid, so also is leasing and hiring understood to be contracted where an agreement is made as to the rent. 1Purchase and sale is held to bear such a resemblance to leasing and hiring that, in some instances, it is customary to make the inquiry as to whether the transaction is one of purchase and sale, or one of leasing and hiring; for example, if I have a contract with a goldsmith to make me some rings of a certain weight, and of a designated form, and he agrees to make them for three hundred aurei; is this a purchase and sale, or a leasing and hiring? It is held that it is only a single transaction, and is rather a purchase and sale than a leasing and hiring. If, however, I furnish him the gold, and compensation for his work is agreed upon, there is no doubt that this is a leasing and hiring.
3 Pomponius libro nono ad Sabinum. Cum fundus locetur, et aestimatum instrumentum colonus accipiat, Proculus ait id agi, ut instrumentum emptum habeat colonus, sicuti fieret, cum quid aestimatum in dotem daretur.
3 Pomponius, On Sabinus, Book IX. Where a tract of land is leased, and the tenant receives the implements for its cultivation after they have been appraised, Proculus says that the intention of the parties is that the tenant should have the implements, as being purchased; just as when any property, after having been appraised, is given by way of dowry.
4 Idem libro sexto decimo ad Sabinum. Locatio precariive rogatio ita facta, quoad is, qui eam locasset dedissetve, vellet, morte eius qui locavit tollitur.
4 The Same, On Sabinus, Book XVI. A lease, or a precarious tenancy is made in the following terms, namely: “As long as he who leases or gives the property may be willing,” and it is terminated by the death of the owner of the property.
5 Ulpianus libro vicesimo octavo ad edictum. Si tibi habitationem locavero, mox pensionem remittam, ex locato et conducto agendum erit.
5 Ulpianus, On the Edict, Book XXVIII. If I rent you a lodging and afterwards remit the rent, an action on leasing and hiring will lie.
6 Gaius libro decimo ad edictum provinciale. Is qui rem conduxerit non cogitur restituere id quod rei nomine furti actione consecutus est.
6 Gaius, On the Provincial Edict, Book X. Where anyone has rented property, he is not required to surrender what he recovered on account of said property in an action for theft.
7 Paulus libro trigesimo secundo ad edictum. Si tibi alienam insulam locavero quinquaginta tuque eandem sexaginta Titio locaveris et Titius a domino prohibitus fuerit habitare, agentem te ex conducto sexaginta consequi debere placet, quia ipse Titio tenearis in sexaginta.
7 Paulus, On the Edict, Book XXXII. If I rent you a house belonging to another for fifty aurei, and you rent the same house to Titius for sixty, and Titius is forbidden by the owner to occupy it; it is established that you can bring an action on hiring against me, to recover sixty aurei, because you yourself are liable to Titius for sixty.
8 Tryphoninus libro nono disputationum. Nos videamus, ne non sexaginta praestanda nec quinquaginta sint, sed quanti interest perfrui conductione, tantundemque consequatur medius, quantum praestare debeat ei, qui a se conduxit, quoniam emolumentum conductionis ad comparationem uberioris mercedis computatum maiorem efficit condemnationem. et tamen primus locator reputationem habebit quinquaginta, quae ab illo perciperet, si dominus insulae habitare novissimum conductorem non vetuisset: quo iure utimur.
8 Tryphoninus, Disputations, Book IX. Let us see whether neither sixty nor fifty aurei should be paid, but an amount equal to the interest the tenant has in the enjoyment of the property leased, so that the second lessor can only recover the sum that he owes to the party who rented the property from him; and since the profit of the lease is to be computed according to the amount of the higher rent, the result is that the sum recovered should be greater. The first lessor will still have a right to claim the fifty aurei which he would have collected from the first tenant, if the owner had not forbidden the last tenant to occupy the house. This is our practice.
9 Ulpianus libro trigesimo secundo ad edictum. Si quis domum bona fide emptam vel fundum locaverit mihi isque sit evictus sine dolo malo culpaque eius, Pomponius ait nihilo minus eum teneri ex conducto ei qui conduxit, ut ei praestetur frui quod conduxit licere. plane si dominus non patitur et locator paratus sit aliam habitationem non minus commodam praestare, aequissimum esse ait absolvi locatorem. 1Hic subiungi potest, quod Marcellus libro sexto digestorum scripsit: si fructuarius locaverit fundum in quinquennium et decesserit, heredem eius non teneri, ut frui praestet, non magis quam insula exusta teneretur locator conductori. sed an ex locato teneatur conductor, ut pro rata temporis quo fruitus est pensionem praestet, Marcellus quaerit, quemadmodum praestaret, si fructuarii servi operas conduxisset vel habitationem? et magis admittit teneri eum: et est aequissimum. idem quaerit, si sumptus fecit in fundum quasi quinquennio fruiturus, an recipiat? et ait non recepturum, quia hoc evenire posse prospicere debuit. quid tamen si non quasi fructuarius ei locavit, sed si quasi fundi dominus? videlicet tenebitur: decepit enim conductorem: et ita imperator Antoninus cum divo Severo rescripsit. in exustis quoque aedibus eius temporis, quo aedificium stetit, mercedem praestandam rescripserunt. 2Iulianus libro quinto decimo digestorum dicit, si quis fundum locaverit, ut etiam si quid vi maiori accidisset, hoc ei praestaretur, pacto standum esse. 3Si colonis praediorum lege locationis, ut innocentem ignem habeant, denuntiatum sit, si quidem fortuitus casus incendii causam intulerit, non praestabit periculum locator: si vero culpa locatoris, quam praestare necesse est, damnum fecerit, tenebitur. 4Imperator Antoninus cum patre, cum grex esset abactus quem quis conduxerat, ita rescripsit: ‘Si capras latrones citra tuam fraudem abegisse probari potest iudicio locati, casum praestare non cogeris atque temporis quod insecutum est mercedes ut indebitas reciperabis.’ 5Celsus etiam imperitiam culpae adnumerandam libro octavo digestorum scripsit: si quis vitulos pascendos vel sarciendum quid poliendumve conduxit, culpam eum praestare debere et quod imperitia peccavit, culpam esse: quippe ut artifex, inquit, conduxit. 6Si alienam domum mihi locaveris eaque mihi legata vel donata sit, non teneri me tibi ex locato ob pensionem: sed de tempore praeterito videamus, si quid ante legati diem pensionis debetur: et puto solvendum:
9 Ulpianus, On the Edict, Book XXXII. If anyone rents me a house or a tract of land which has been purchased in good faith, and he is evicted from the same without fraud or negligence on his part; Pomponius says that the lessor will, nevertheless, be liable to an action on lease, in order that the lessee may be enabled to enjoy the property rented to him. It is clear that if the owner will not allow him to occupy the premises, and the lessor is ready to furnish him another house which is just as convenient, he says that it would be perfectly just for the lessor to be released from his obligation. 1What Marcellus stated in the Sixth Book of the Digest may be added, namely: “If an usufructuary rents a tract of land subject to an usufruct, for five years, and dies; his heir will not be liable to permit him to enjoy the same, any more than a lessor would be liable to a lessee after a house has been destroyed by fire. But whether the lessee will be liable to an action on the lease to collect the rent during the time he was in the enjoyment of said property, is a question asked by Marcellus; just as he would have been compelled to pay, if he had leased the services of a slave subject to an usufruct, or a lodging. He states that the better opinion is that he will be liable; and this is perfectly just. He also asks if the lessee should incur any expense on account of the land through the expectation of enjoying it for five years, whether he can recover the same. He says that he cannot do so, because he should have foreseen that this would take place. But what if the usufructuary had not leased the land to him as such, but as the owner of the same? He will certainly be liable, for he deceived the lessee; and this the Emperors Antoninus and Severus stated in a Rescript. They also stated that, where the house has been destroyed by fire, the rent must be paid for the time that the building stood. 2Julianus says in the Fifteenth Book of the Digest, that, where anyone leases land on the condition that if anything should happen to it through the exertion of irresistible force, he will be responsible for the same; he must abide by the contract. 3Where, in the terms of a lease of land, the lessee was notified to be careful about fire, and some accident caused a conflagration, he will not be compelled to make good the loss. But where damage is caused by the negligence of the lessee, for which he was responsible, he will be liable. 4The Emperor Antoninus, together with his father, stated in a Rescript with reference to a flock of goats, which a party had hired, and which had been stolen from him, “If it can be proved that the robbers drove away the goats without any fraud on your part, you will not be compelled to be responsible for the occurrence in an action on lease, and you can recover any rent for the time following the theft as being money paid which was not due.” 5Celsus also states in the Eighth Book of the Digest that want of skill should be classed with negligence. Where a party rents calves to be fed, or cloth to be repaired, or an article to be polished, he must be responsible for negligence, and whatever fault he commits through want of skill is negligence, because he rents the property in the character of an artisan. 6If you lease me a house belonging to another, which has been bequeathed or given to me, I am not liable to you for the rent in an action on lease. Let us see, however, whether anything is due for the time which has elapsed before the bequest was made. I think that the rent should be paid for that time.
10 Iulianus libro ... ad Ferocem. et ego ex conducto recte agam vel in hoc, ut me liberes.
10 Julianus, On Urseius Ferox, Book III. And I can properly bring an action on hiring, or for the purpose of compelling you to release me from the contract.
11 Ulpianus libro trigesimo secundo ad edictum. Videamus, an et servorum culpam et quoscumque induxerit praestare conductor debeat? et quatenus praestat, utrum ut servos noxae dedat an vero suo nomine teneatur? et adversus eos quos induxerit utrum praestabit tantum actiones an quasi ob propriam culpam tenebitur? mihi ita placet, ut culpam etiam eorum quos induxit praestet suo nomine, etsi nihil convenit, si tamen culpam in inducendis admittit, quod tales habuerit vel suos vel hospites: et ita Pomponius libro sexagesimo tertio ad edictum probat. 1Si hoc in locatione convenit ‘ignem ne habeto’ et habuit, tenebitur etiam si fortuitus casus admisit incendium, quia non debuit ignem habere. aliud est enim ignem innocentem habere: permittit enim habere, sed innoxium, ignem. 2Item prospicere debet conductor, ne aliquo vel ius rei vel corpus deterius faciat vel fieri patiatur. 3Qui vinum de Campania transportandum conduxisset, deinde mota a quodam controversia signatum suo et alterius sigillo in apothecam deposuisset, ex locato tenetur, ut locatori possessionem vini sine controversia reddat, nisi culpa conductor careret. 4Inter conductorem et locatorem convenerat, ne in villa urbana faenum componeretur: composuit: deinde servus igne illato succendit. ait Labeo teneri conductorem ex locato, quia ipse causam praebuit inferendo contra conductionem.
11 Ulpianus, On the Edict, Book XXXII. Let us see whether the tenant is liable for the negligence of his slave, and of those to whom he has sublet the property, and also to what extent he is responsible; shall he surrender the slave by way of reparation, or will he be liable in his own name; and, with reference to those to whom he has sublet the premises, must he only assign to the owner any rights of action which he may have against them, or will he be accountable just as if the negligence was his own? It is my opinion that he is responsible in his own name for the negligence of his sub-tenants, even though nothing had been agreed upon with reference to this: provided, however, he committed negligence in subletting the property to such persons, either his own slaves or tenants. Pomponius approves this in the Sixty-third Book On the Edict. 1If it was agreed upon at the time of the lease that the tenant could not have fire, and he, nevertheless, has it, he will be liable, even though an accident may cause a conflagration, because he had no right to have it. The rule is different where he is permitted to have fire which will not cause injury, for, in this instance, he is allowed to have it provided it causes no damage. 2The lessee must also be careful not to injure the property, or any right attaching to the same, nor to permit this to be done. 3Where a party hired his services for the transportation of wine from Campania, and then, a controversy having arisen between himself and another, he sealed the casks with his own seal and that of the other person, and placed the wine in a warehouse; he will be liable to an action on hiring to return the possession of the wine to his employer, without any dispute, unless the employee was guilty of negligence. 4It was agreed upon between a lessor and a lessee that hay should not be placed in a building in a city. It was, nevertheless, placed there, and a slave, having afterwards set fire to the hay, killed himself. Labeo says that the lessee is liable to an action, because he himself was the cause of the disaster, by bringing in the hay in violation of the terms of the lease.
12 Hermogenianus libro secundo iuris epitomarum. Sed etsi quilibet extraneus ignem iniecerit, damni locati iudicio habebitur ratio.
12 Hermogenianus, Epitomes of Law, Book II. Moreover, even if some stranger had kindled the fire, the lessee would be liable for the damage caused.
13 Ulpianus libro trigesimo secundo ad edictum. Item quaeritur, si cisiarius, id est carucharius, dum ceteros transire contendit, cisium evertit et servum quassavit vel occidit. puto ex locato esse in eum actionem: temperare enim debuit: sed et utilis Aquiliae dabitur. 1Si navicularius onus Minturnas vehendum conduxerit et, cum flumen Minturnense navis ea subire non posset, in aliam navem merces transtulerit eaque navis in ostio fluminis perierit, tenetur primus navicularius? Labeo, si culpa caret, non teneri ait: ceterum si vel invito domino fecit vel quo non debuit tempore aut si minus idoneae navi, tunc ex locato agendum. 2Si magister navis sine gubernatore in flumen navem immiserit et tempestate orta temperare non potuerit et navem perdiderit, vectores habebunt adversus eum ex locato actionem. 3Si quis servum docendum conduxerit eumque duxerit peregre et aut ab hostibus captus sit aut perierit, ex locato esse actionem placuit, si modo non sic conduxit, ut et peregre duceret. 4Item Iulianus libro octagensimo sexto digestorum scripsit, si sutor puero parum bene facienti forma calcei tam vehementer cervicem percusserit, ut ei oculus effunderetur, ex locato esse actionem patri eius: quamvis enim magistris levis castigatio concessa sit, tamen hunc modum non tenuisse: sed et de Aquilia supra diximus. iniuriarum autem actionem competere Iulianus negat, quia non iniuriae faciendae causa hoc fecerit, sed praecipiendi. 5Si gemma includenda aut insculpenda data sit eaque fracta sit, si quidem vitio materiae fractum sit, non erit ex locato actio, si imperitia facientis, erit. huic sententiae addendum est, nisi periculum quoque in se artifex receperat: tunc enim etsi vitio materiae id evenit, erit ex locato actio. 6Si fullo vestimenta polienda acceperit eaque mures roserint, ex locato tenetur, quia debuit ab hac re cavere. et si pallium fullo permutaverit et alii alterius dederit, ex locato actione tenebitur, etiamsi ignarus fecerit. 7Exercitu veniente migravit conductor, dein de hospitio milites fenestras et cetera sustulerunt. si domino non denuntiavit et migravit, ex locato tenebitur: Labeo autem, si resistere potuit et non resistit, teneri ait, quae sententia vera est. sed et si denuntiare non potuit, non puto eum teneri. 8Si quis mensuras conduxerit easque magistratus frangi iusserit, si quidem iniquae fuerunt, Sabinus distinguit, utrum scit conductor an non: si scit, esse ex locato actionem, si minus, non. quod si aeque sunt, ita demum eum teneri, si culpa eius id fecit aedilis. et ita Labeo et Mela scribunt. 9Duo rei locationis in solidum esse possunt. 10Si lege operis locandi comprehensum esset, ut, si ad diem effectum non esset, relocare id liceret, non alias prior conductor ex locato tenebitur, quam si eadem lege relocatum esset: nec ante relocari id potest, quam dies efficiendi praeterisset. 11Qui impleto tempore conductionis remansit in conductione, non solum reconduxisse videbitur, sed etiam pignora videntur durare obligata. sed hoc ita verum est, si non alius pro eo in priore conductione res obligaverat: huius enim novus consensus erit necessarius. eadem causa erit et si rei publicae praedia locata fuerint. quod autem diximus taciturnitate utriusque partis colonum reconduxisse videri, ita accipiendum est, ut in ipso anno, quo tacuerunt, videantur eandem locationem renovasse, non etiam in sequentibus annis, etsi lustrum forte ab initio fuerat conductioni praestitutum. sed et si secundo quoque anno post finitum lustrum nihil fuerit contrarium actum, eandem videri locationem in illo anno permansisse: hoc enim ipso, quo tacuerunt, consensisse videntur. et hoc deinceps in unoquoque anno observandum est. in urbanis autem praediis alio iure utimur, ut, prout quisque habitaverit, ita et obligetur, nisi in scriptis certum tempus conductioni comprehensum est.
13 Ulpianus, On the Edict, Book XXXII. The question is also asked, where the driver of a vehicle, while trying to pass others, overturns one, and injures or kills a slave, what course must be pursued? I think that an action on hiring will lie against him, for he should have been more careful. Moreover, a prætorian action under the Lex Aquilia will be granted him. 1If the master of a ship should receive a cargo to be taken to Minturn?, and, as his ship was unable to ascend the river, he should transfer the merchandise to another which was lost at the mouth of the river; in this instance, the first master will be liable. Labeo says that if he was not guilty of negligence, he will not be liable; but if he acted against the consent of the owner, or transferred the cargo at a time when he should not have done so, or loaded it in a vessel which was less seaworthy than his own; an action on hiring can be brought against him. 2Where the master of a ship takes it into a river without a pilot, and, a storm having arisen, he cannot manage the ship and loses it; the owners of the cargo will be entitled to an action on hiring against him. 3If anyone leases a slave for the purpose of instructing him, and takes him to a foreign country where he is either captured by the enemy, or loses his life, it is held that an action on hiring will lie, provided he did not hire him for the purpose of taking him into a foreign country. 4Julianus also says in the Eighty-sixth Book of the Digest that if a shoemaker, being dissatisfied with a boy employed by him should strike him on the neck with a last so hard as to destroy his eye, an action on hiring can be brought by his father; for although masters are permitted to inflict light punishment, still, this is immoderate. We have stated above that an action under the Lex Aquilia will also lie. Julianus denies that an action on injury can be brought, because the party did not commit the act for the purpose of causing injury, but in the course of instruction. 5Where a precious stone has been given to an artisan for the purpose of being set or engraved, and it is broken; if this was caused by any defect in the stone, an action on hiring will not lie, but where it occurred through want of skill, it can be brought. It must be added to this opinion, “unless the workman assumed the risk,” for then, even if the accident was caused by a defect, an action on hiring will lie. 6If a fuller should receive clothing to be cleaned, and mice gnaw it, he will be liable to an action on hiring, because he ought to have provided against this. If a fuller changes cloaks, and gives one to one person which belongs to another, he will be liable to an action on hiring, even though he did so ignorantly. 7A tenant left the premises on the approach of an army, and the soldiers afterwards removed the windows and other things from the house; if the tenant did not notify the owner when he left, he will be liable to an action on hiring. Labeo says that if he could have resisted, and did not do so, he will be liable; and this opinion is true. But if he could not notify the landlord, I do not think he would be liable. 8Where anyone rents measures, and a magistrate orders them to be destroyed; if they were false, Sabinus makes a distinction where the lessee was aware of the fact, and where he was not. If he knew that they were false, an action on hiring will lie, otherwise not. If the measures were correct, he will only be liable where he was to blame for the act of the Ædile. This opinion is also held by Labeo and Mela. 9Two lessees can be held liable for the entire amount involved. 10Where it is included in the contract for the hire of labor, that if the article is not completed by a certain time it may be given to someone else, the first lessee will not be liable to an action on hiring unless the article is given to someone else under the same contract; nor can this be done until the day fixed for its completion shall have passed. 11Where, after the term of his lease has elapsed, the tenant remains on the premises, not only is a renewal of the lease held to have been made, but also any pledges which have been given as security are still considered to be encumbered. This, however, is only true where another party had not encumbered the property at the time of the original lease, otherwise his fresh consent will be necessary. The same rule applies where lands have been leased to the government. What we have stated, namely, that the tenant is held to have made a new lease through the silence of both parties, must be understood to mean that where they were silent, the lease is renewed for a year, but this does not apply to ensuing years, even though the term of the lease should, in the beginning, have been five years. Moreover, if no contrary agreement was made during the second year after the end of the term of five years, the lease will be considered to be renewed for that year, as the parties are held to have consented for the year during which they kept silent. This rule must also be observed afterwards for every ensuing year. Another rule is applicable to urban estates, however, for a tenant is liable for all the time he occupies the premises, unless a certain term fixing the duration of the lease is mentioned in the written instrument.
14 Idem libro septuagesimo primo ad edictum. Qui ad certum tempus conducit, finito quoque tempore colonus est: intellegitur enim dominus, cum patitur colonum in fundo esse, ex integro locare, et huiusmodi contractus neque verba neque scripturam utique desiderant, sed nudo consensu convalescunt: et ideo si interim dominus furere coeperit vel decesserit, fieri non posse Marcellus ait, ut locatio redintegretur, et est hoc verum.
14 The Same, On the Edict, Book LXXI. Where anyone rents land for a certain time, he remains a tenant even after it has expired; for it is understood that where an owner allows a tenant to remain on the land he leases it to him again. A contract of this kind does not require either words, or writing to establish it, but it becomes valid by mere consent. Therefore, if the owner of the property should become insane or die in the meantime, Marcellus states that it cannot be held that the lease is renewed; and this is correct.
15 Idem libro trigesimo secundo ad edictum. Ex conducto actio conductori datur. 1Competit autem ex his causis fere: ut puta si re quam conduxit frui ei non liceat (forte quia possessio ei aut totius agri aut partis non praestatur, aut villa non reficitur vel stabulum vel ubi greges eius stare oporteat) vel si quid in lege conductionis convenit, si hoc non praestatur, ex conducto agetur. 2Si vis tempestatis calamitosae contigerit, an locator conductori aliquid praestare debeat, videamus. Servius omnem vim, cui resisti non potest, dominum colono praestare debere ait, ut puta fluminum graculorum sturnorum et si quid simile acciderit, aut si incursus hostium fiat: si qua tamen vitia ex ipsa re oriantur, haec damno coloni esse, veluti si vinum coacuerit, si raucis aut herbis segetes corruptae sint. sed et si labes facta sit omnemque fructum tulerit, damnum coloni non esse, ne supra damnum seminis amissi mercedes agri praestare cogatur. sed et si uredo fructum oleae corruperit aut solis fervore non adsueto id acciderit, damnum domini futurum: si vero nihil extra consuetudinem acciderit, damnum coloni esse. idemque dicendum, si exercitus praeteriens per lasciviam aliquid abstulit. sed et si ager terrae motu ita corruerit, ut nusquam sit, damno domini esse: oportere enim agrum praestari conductori, ut frui possit. 3Cum quidam incendium fundi allegaret et remissionem desideraret, ita ei rescriptum est: ‘Si praedium coluisti, propter casum incendii repentini non immerito subveniendum tibi est.’ 4Papinianus libro quarto responsorum ait, si uno anno remissionem quis colono dederit ob sterilitatem, deinde sequentibus annis contigit uberitas, nihil obesse domino remissionem, sed integram pensionem etiam eius anni quo remisit exigendam. hoc idem et in vectigalis damno respondit. sed et si verbo donationis dominus ob sterilitatem anni remiserit, idem erit dicendum, quasi non sit donatio, sed transactio. quid tamen, si novissimus erat annus sterilis, in quo ei remiserit? verius dicetur et si superiores uberes fuerunt et scit locator, non debere eum ad computationem vocari. 5Cum quidam de fructuum exiguitate quereretur, non esse rationem eius habendam rescripto divi Antonini continetur. item alio rescripto ita continetur: ‘novam rem desideras, ut propter vetustatem vinearum remissio tibi detur.’ 6Item cum quidam nave amissa vecturam, quam pro mutua acceperat, repeteretur, rescriptum est ab Antonino Augusto non immerito procuratorem Caesaris ab eo vecturam repetere, cum munere vehendi functus non sit: quod in omnibus personis similiter observandum est. 7Ubicumque tamen remissionis ratio habetur ex causis supra relatis, non id quod sua interest conductor consequitur, sed mercedis exonerationem pro rata: supra denique damnum seminis ad colonum pertinere declaratur. 8Plane si forte dominus frui non patiatur, vel cum ipse locasset vel cum alius alienum vel quasi procurator vel quasi suum, quod interest praestabitur: et ita Proculus in procuratore respondit. 9Interdum ad hoc ex locato agetur, ut quis locatione liberetur, Iulianus libro quinto decimo digestorum scribsit. ut puta Titio fundum locavi isque pupillo herede instituto decessit et, cum tutor constituisset abstinere pupillum hereditate, ego fundum pluris locavi: deinde pupillus restitutus est in bona paterna. ex conducto nihil amplius eum consecuturum, quam ut locatione liberetur: mihi enim iusta causa fuit locandi,
15 The Same, On the Edict, Book XXXII. The action on hiring is granted to the lessee. 1Moreover, the action will, to a certain extent, lie in the following cases; for instance, where the party is unable to enjoy the property which he has leased, perhaps because possession of an entire field or of a portion of the same has not been given him; or a house, or a stable, or the place where flocks must be kept, has not been repaired; or where something is not furnished which was agreed upon under the terms of the lease; an action on hiring will lie. 2Let us consider whether the lessor is obliged to do anything for the lessee, where bad weather has caused the latter loss. Servius says that the lessor must indemnify the lessee for any violence which could not be resisted; as, for instance, that caused by the overflow of rivers, by birds of different kinds, or by any similar accident, or where an invasion of enemies takes place. If any defect should arise with reference to the property itself, the loss must be borne by the tenant; as, for example, where wine becomes sour, or the crops are ruined by weeds. If, however, an earthquake occurs, and destroys all the crops, the loss will not be sustained by the tenant, for he cannot be compelled to pay the rent of land in addition to the loss of the seed. Where, however, the olive crop has been spoiled by fire, or this has taken place through the unusual heat of the sun, the owner of the land must bear the loss; but if nothing extraordinary happens, the tenant will be responsible for it. The same must be said where an army that was passing by removed anything in mere wantonness. But if a field should be so ruined by an earthquake that nothing remains of it, the loss must be borne by the owner, for he is obliged to furnish the land to the lessee in such a condition that he can enjoy it. 3Where a tenant alleged that a fire had taken place on the land, and asked that the rent be remitted; it was stated in a Rescript, “If you cultivated the land, you are entitled to reasonable relief on account of the occurrence of an unexpected fire.” 4Papinianus says in the Fourth Book of Opinions that where a landlord has remitted the rent to a tenant for one year on account of sterility, and there was a great yield during the following year, the landlord has lost nothing on account of remitting the rent, and he can even claim the rent for the year which he remitted. He gave the same opinion with reference to the loss under a perpetual lease. If, however, the landlord remitted the rent for a year on account of sterility, as a gift, the same rule will apply, as this is rather an agreement than a donation. But what if he remitted the rent because of sterility during the last year of the lease? It is held to be more correct that, if the preceding years were fruitful, and the landlord was aware of the fact, he should not call the tenant to account for the one which was sterile. 5It is stated in a Rescript of the Divine Antoninus that no attention should be paid to a tenant who complains of the smallness of the crops. It is also stated in another rescript, “You are claiming something unusual, when you ask that the rent shall be remitted to you on account of the age of the vines.” 6Again, where a certain individual, in the case of the loss of a vessel, demanded what he had paid for transportation on the ground that it was a loan; it was stated in a Rescript by the Emperor Antoninus that the Imperial Procurator had not improperly demanded the freight from the owner of the vessel, since he had not performed his duty in transporting the property. This rule must likewise be observed in the case of all other persons. 7Wherever there is any ground for the remission of rent for the above-mentioned reasons, the lessee cannot recover any interest to which he may be entitled, but he will be released from the payment of rent in proportion to the time. Finally, it has been already stated that the loss of the seed must be borne by the tenant. 8It is clear that if the owner of the property does not allow the lessee to enjoy it, either because he himself has leased it, or for the reason that someone has leased the property of another acting as his agent, or as if it was his own, he must indemnify the lessee to the extent of his interest. Proculus held this opinion where a party pretended to be an agent. 9Julianus says in the Fifteenth Book of the Digest that sometimes an action on hiring is brought for the purpose of releasing the parties to the contract; as, for instance, where I leased land to Titius, and he died after appointing a ward his heir, and, as the guardian had caused the ward to reject the inheritance, I leased the said land to another party at a higher rent; and afterwards the ward obtained possession of the estate of his father. In an action on hiring, he can recover nothing more than to be discharged from liability on his contract, for I had a good reason for again leasing the property:
16 Iulianus libro quinto decimo digestorum. cum eo tempore in pupillum actiones nullae darentur.
16 Julianus, Digest, Book XV. Since, at the time, no right of action was granted me against the ward.
17 Ulpianus libro trigesimo secundo ad edictum. Tutelae tamen cum tutore iudicio, inquit, aget, si abstinere non debuit:
17 Ulpianus, On the Edict, Book XXXII. He also says that the ward is entitled to an action against his guardian, if he ought not to have rejected the estate.
18 Iulianus libro quinto decimo digestorum. in quo inerit etiam hoc, quod ex conductione fundi lucrum facere potuit.
18 Julianus, Digest, Book XV. There will also be included in this action any profits which the ward could have obtained from the lease of the land.
19 Ulpianus libro trigesimo secundo ad edictum. Sed addes hoc Iuliani sententiae, ut, si collusi ego cum tutore, ex conducto tenear in id quod pupilli interfuit. 1Si quis dolia vitiosa ignarus locaverit, deinde vinum effluxerit, tenebitur in id quod interest nec ignorantia eius erit excusata: et ita Cassius scripsit. aliter atque si saltum pascuum locasti, in quo herba mala nascebatur: hic enim si pecora vel demortua sunt vel etiam deteriora facta, quod interest praestabitur, si scisti, si ignorasti, pensionem non petes, et ita Servio Labeoni Sabino placuit. 2Illud nobis videndum est, si quis fundum locaverit, quae soleat instrumenti nomine conductori praestare, quaeque si non praestet, ex locato tenetur. et est epistula Neratii ad Aristonem dolia utique colono esse praestanda et praelum et trapetum instructa funibus, si minus, dominum instruere ea debere: sed et praelum vitiatum dominum reficere debere. quod si culpa coloni quid eorum corruptum sit, ex locato eum teneri. fiscos autem, quibus ad premendam oleam utimur, colonum sibi parare debere Neratius scripsit: quod si regulis olea prematur, et praelum et suculam et regulas et tympanum et cocleas quibus relevatur praelum dominum parare oportere. item aenum, in quo olea calda aqua lavatur, ut cetera vasa olearia dominum praestare oportere, sicuti dolia vinaria, quae ad praesentem usum colonum picare oportebit. haec omnia sic sunt accipienda, nisi si quid aliud specialiter actum sit. 3Si dominus exceperit in locatione, ut frumenti certum modum certo pretio acciperet, et dominus nolit frumentum accipere neque pecuniam ex mercede deducere, potest quidem totam summam ex locato petere, sed utique consequens est existimare officio iudicis hoc convenire, haberi rationem, quanto conductoris intererat in frumento potius quam in pecunia solvere pensionis exceptam portionem. simili modo et si ex conducto agatur, idem erit dicendum. 4Si inquilinus ostium vel quaedam alia aedificio adiecerit, quae actio locum habeat? et est verius Labeo scripsit competere ex conducto actionem, ut ei tollere liceat, sic tamen, ut damni infecti caveat, ne in aliquo dum aufert deteriorem causam aedium faciat, sed ut pristinam faciem aedibus reddat. 5Si inquilinus arcam aeratam in aedes contulerit et aedium aditum coangustaverit dominus, verius est ex conducto eum teneri et ad exhibendum actione, sive scit sive ignoraverit: officio enim iudicis continetur, ut cogat eum aditum et facultatem inquilino praestare ad arcam tollendam sumptibus scilicet locatoris. 6Si quis, cum in annum habitationem conduxisset, pensionem totius anni dederit, deinde insula post sex menses ruerit vel incendio consumpta sit, pensionem residui temporis rectissime Mela scripsit ex conducto actione repetiturum, non quasi indebitum condicturum: non enim per errorem dedit plus, sed ut sibi in causam conductionis proficeret. aliter atque si quis, cum decem conduxisset, quindecim solverit: hic enim si per errorem solvit, dum putat se quindecim conduxisse, actionem ex conducto non habebit, sed solam condictionem. nam inter eum, qui per errorem solvit, et eum, qui pensionem integram prorogavit, multum interest. 7Si quis mulierem vehendam navi conduxisset, deinde in nave infans natus fuisset, probandum est pro infante nihil deberi, cum neque vectura eius magna sit neque his omnibus utatur, quae ad navigantium usum parantur. 8Ex conducto actionem etiam ad heredem transire palam est. 9Cum quidam exceptor operas suas locasset, deinde is qui eas conduxerat decessisset, imperator Antoninus cum divo Severo rescripsit ad libellum exceptoris in haec verba: ‘Cum per te non stetisse proponas, quo minus locatas operas Antonio Aquilae solveres, si eodem anno mercedes ab alio non accepisti, fidem contractus impleri aequum est.’ 10Papinianus quoque libro quarto responsorum scripsit diem functo legato Caesaris salarium comitibus residui temporis praestandum, modo si non postea comites cum aliis eodem tempore fuerunt.
19 Ulpianus, On the Edict, Book XXXII. But you should add to the opinion of Julianus that if I was in collusion with the guardian I would be liable to an action on hiring to the extent of the interest of the ward. 1Where anyone rents defective casks, not knowing that they are such, and the wine afterwards leaks out, he will be liable to the amount of the party’s interest, and his ignorance will not be excusable. This opinion was held by Cassius. The case is different if you rented a tract of land for pasturage in which poisonous herbs grew; for, in this instance, if any of the cattle died, or were depreciated in value, and you knew of the existence of the herbs, you must indemnify the lessee to the amount of his interest; and if you were ignorant of their existence, you cannot collect the rent. This was also held by Servius, Labeo, and Sabinus. 2We must consider where anyone leases a tract of land what implements he must furnish the lessee, and if he does not do this, whether he will be liable in an action on lease. A letter of Neratius to Aristo upon this point is extant which states that casks must be furnished the tenant, as well as a wine-press and an olive-press, equipped with ropes, and if they are lacking, the owner must provide them, and he must likewise repair a press if it is out of order. If any of the implements become damaged through the fault of the tenant, he will be liable to an action on lease. Neratius says that the tenant is also required to provide the vessels which we use for pressing the olives. If the oil is pressed out by means of baskets, the owner must furnish the press, the windlass, the baskets, the wheel, and the pulleys by which the press is raised. He must also furnish the brazen kettle in which the oil is washed with warm water, as well as the other necessary utensils for handling the oil, together With the wine-casks, which the tenant must cover with pitch for present use. All these things shall be provided in this manner, unless some other special agreement has been made. 3Where the landlord inserted in the lease that he should be entitled to a specified amount of grain at a certain price, and he refuses to accept it, and is unwilling to make any deduction from the rent, he can bring an action to recover the entire amount; but the result will be that, in the discharge of his duty, the judge must take into account the interest which the lessee had in delivering the grain, rather than in paying money by way of rent. The same must likewise be held where an action on the lease is brought. 4What action will lie where a tenant adds a door or anything else to a house? The better opinion is that held by Labeo, namely, that an action on lease will lie to permit the tenant to remove it; provided, however, that he gives security against threatened injury, lest he may render the house of less value in some respect when he removes what he added, but only that he will restore the building to its original condition. 5If a tenant should bring a metal chest into a house, and the owner subsequently makes the entrance smaller; it is a fact that an action on lease, as well as one for the production of property will lie against the owner, whether he was aware or ignorant of the fact. It is the duty of the judge to compel him to furnish a passage to enable the tenant to remove the chest, of course at the expense of the landlord. 6If anyone should lease a house for a year, and pay the rent for the entire term, and, six months afterwards, the house falls down, or is consumed by fire; Mela very properly says that he will be entitled to an action on lease for the recovery of the rent for the remaining time, but not to one for the recovery of money which was not due; for he did not pay more by mistake, but that he might be benefited with reference to the lease. The case is different where anyone leases property for ten aurei and pays fifteen; for if he paid this sum by mistake, being under the impression that he had rented the property for fifteen aurei, he will not be entitled to an action on lease, but can only sue for the recovery of the money; for there is a great deal of difference between one who pays by mistake, and one who pays the entire rent in advance. 7Where anyone makes a contract for the transportation of a woman by sea, and afterwards a child is born to her on the ship, it has been established that nothing is due on account of the child; for the transportation was not more expensive, nor did the child consume anything which was provided for the use of those navigating the vessel. 8It is clear that an action on hiring can also pass to an heir. 9Where a certain copyist leased his services and the party who had contracted for them died; the Emperors Antoninus and Severus stated the following in a Rescript, in answer to an application of the copyist: “Since, as you allege that you are not to blame for not having furnished the services for which you were hired to Antoninus Aquilia, it is only just that, if you did not receive any salary from another during the year, the contract should be carried out.” 10Papinianus states in the Fourth Book of Opinions that, where an envoy of the Emperor dies, his attendants must be paid their salaries for the remainder of their time of service; provided the said attendants were not, during that time, in the employ of others.
20 Paulus libro trigesimo quarto ad edictum. Sicut emptio ita et locatio sub condicione fieri potest: 1sed donationis causa contrahi non potest. 2Interdum locator non obligatur, conductor obligatur, veluti cum emptor fundum conducit, donec pretium ei solvat.
21 Iavolenus libro undecimo epistularum. Cum venderem fundum, convenit, ut, donec pecunia omnis persolveretur, certa mercede emptor fundum conductum haberet: an soluta pecunia merces accepta fieri debeat? respondit: bona fides exigit, ut quod convenit fiat: sed non amplius praestat is venditori, quam pro portione eius temporis, quo pecunia numerata non esset.
21 Javolenus, Epistles, Book XI. When I sold a tract of land, the agreement was that, until the entire amount was paid, the purchaser should lease it for a certain rent. When the money is paid, should a receipt be given for the rent? The answer was that good faith requires that what was agreed upon should be done, but that the purchaser should not be responsible to the vendor for a larger sum than the rent of the property would amount to during the time when the money was not paid.
22 Paulus libro trigesimo quarto ad edictum. Item si pretio non soluto inempta res facta sit, tunc ex locato erit actio. 1Quotiens autem faciendum aliquid datur, locatio est. 2Cum insulam aedificandam loco, ut sua impensa conductor omnia faciat, proprietatem quidem eorum ad me transfert et tamen locatio est: locat enim artifex operam suam, id est faciendi necessitatem. 3Quemadmodum in emendo et vendendo naturaliter concessum est quod pluris sit minoris emere, quod minoris sit pluris vendere et ita invicem se circumscribere, ita in locationibus quoque et conductionibus iuris est:
22 Paulus, On the Edict, Book XXXIV. Moreover, where it is inserted in the contract that if the price is not paid, the property shall not be purchased, an action on lease will lie. 1As often as any work is given to be performed, it is a lease. 2Where I contract for the construction of a house, with the understanding that the person I employ is to be responsible for all of the expense, he transfers to me the ownership of all the material used, and still the transaction is a lease; for the artisan leases me his services, that is to say, the necessity for performing the labor. 3Just as in a transaction of purchase and sale it is naturally conceded that the parties can either purchase or buy something more or less, and hence mutually restrain one another, so the rule is the same in leasing and hiring.
23 Hermogenianus libro secundo iuris epitomarum. et ideo praetextu minoris pensionis, locatione facta, si nullus dolus adversarii probari possit, rescindi locatio non potest.
23 Hermogenianus, Epitomes of Law, Book II. And, therefore, a contract of lease when once made cannot be rescinded under the pretext that the compensation was too low, where no fraud by the opposite party can be proved.
24 Paulus libro trigesimo quarto ad edictum. Si in lege locationis comprehensum sit, ut arbitratu domini opus adprobetur, perinde habetur, ac si viri boni arbitrium comprehensum fuisset, idemque servatur, si alterius cuiuslibet arbitrium comprehensum sit: nam fides bona exigit, ut arbitrium tale praestetur, quale viro bono convenit. idque arbitrium ad qualitatem operis, non ad prorogandum tempus, quod lege finitum sit, pertinet, nisi id ipsum lege comprehensum sit. quibus consequens est, ut irrita sit adprobatio dolo conductoris facta, ut ex locato agi possit. 1Si colonus locaverit fundum, res posterioris conductoris domino non obligantur: sed fructus in causa pignoris manent, quemadmodum essent, si primus colonus eos percepisset. 2Si domus vel fundus in quinquennium pensionibus locatus sit, potest dominus, si deseruerit habitationem vel fundi culturam colonus vel inquilinus, cum eis statim agere. 3Sed et de his, quae praesenti die praestare debuerunt, velut opus aliquod efficerent, propagationes facerent, agere similiter potest. 4Colonus, si ei frui non liceat, totius quinquennii nomine statim recte aget, etsi reliquis annis dominus fundi frui patiatur: nec enim semper liberabitur dominus eo quod secundo vel tertio anno patietur fundo frui. nam et qui expulsus a conductione in aliam se coloniam contulit, non suffecturus duabus neque ipse pensionum nomine obligatus erit et quantum per singulos annos compendii facturus erat, consequetur: sera est enim patientia fruendi, quae offertur eo tempore, quo frui colonus aliis rebus illigatus non potest. quod si paucis diebus prohibuit, deinde paenitentiam agit omniaque colono in integro sunt, nihil ex obligatione paucorum dierum mora minuet. item utiliter ex conducto agit is, cui secundum conventionem non praestantur quae convenerant, sive prohibeatur frui a domino vel ab extraneo quem dominus prohibere potest. 5Qui in plures annos fundum locaverat, testamento suo damnavit heredem, ut conductorem liberaret. si non patiatur heres eum reliquo tempore frui, est ex conducto actio: quod si patiatur nec mercedes remittat, ex testamento tenetur.
24 Paulus, On the Edict, Book XXXIV. Where it is included in the contract of lease that the work shall be approved by the owner, it is considered that this means in accordance with the judgment of a good citizen. The same rule is observed where recourse is to be had to the judgment of any other person whomsoever; for good faith demands that such judgment should be afforded as befits a good citizen. Judgment of this kind has reference to the quality of the work, and not to the extension of the time prescribed by the contract, unless this itself was included in the agreement. The result of which is that where the approval of the work has been obtained by the fraud of the party employed, it is of no effect, and an action on lease can be brought. 1Where a tenant rents a tract of land, the property of a subtenant is not bound to the owner, but the crops remain in the condition of a pledge, just as if the first tenant had gathered them. 2Where a house or a tract of land is rented for the term of five years, the owner can at once bring an action against the tenant, if he abandons the cultivation of the soil, or vacates the house. 3He can, also, bring suit with reference to those things which the tenant ought to do without delay; as, for instance, some labor which he should perform, like the planting of trees. 4Where a tenant is unable to enjoy the property, he can legally bring an action at once for his entire term of five years, although the owner may have allowed him to enjoy it for the remaining years, as the owner will not always be released for the reason that he permitted the tenant to enjoy the property for the second or third year. For where the tenant has been ejected under the lease, and has betaken himself to another farm, he will not be able to cultivate both, nor will he be compelled to pay the rent, and he can recover the amount of the profit which he would have obtained if he had been unmolested; for permission to enjoy the property comes too late where it is offered at a time when the tenant, being occupied with other matters, cannot take advantage of it. If the landlord prevents his enjoyment of the property, and then changes his mind, the affairs of the tenant are held to be unaltered; and the delay of a few days does not lessen the obligation to any extent. Again, a party can properly bring an action on lease, to whom certain articles have not been furnished in accordance with the agreement, or where he is prevented by the owner from enjoying the property, or where this is done by a stranger whom the owner can control. 5If a landlord rents a tract of land for several years, and charges his heir by his will to release the tenant, and the heir does not permit the latter to enjoy the property for the remainder of his term, an action on lease will lie. If he allows him to do so, but does not remit the rent, he will be liable to an action under the will.
25 Gaius libro decimo ad edictum provinciale. Si merces promissa sit generaliter alieno arbitrio, locatio et conductio contrahi non videtur: sin autem quanti Titius aestimaverit, sub hac condicione stare locationem, ut, si quidem ipse qui nominatus est mercedem definierit, omnimodo secundum eius aestimationem et mercedem persolvi oporteat et conductionem ad effectum pervenire: sin autem ille vel noluerit vel non potuerit mercedem definire, tunc pro nihilo esse conductionem quasi nulla mercede statuta. 1Qui fundum fruendum vel habitationem alicui locavit, si aliqua ex causa fundum vel aedes vendat, curare debet, ut apud emptorem quoque eadem pactione et colono frui et inquilino habitare liceat: alioquin prohibitus is aget cum eo ex conducto. 2Si vicino aedificante obscurentur lumina cenaculi, teneri locatorem inquilino: certe quin liceat colono vel inquilino relinquere conductionem, nulla dubitatio est. de mercedibus quoque si cum eo agatur, reputationis ratio habenda est. eadem intellegemus, si ostia fenestrasve nimium corruptas locator non restituat. 3Conductor omnia secundum legem conductionis facere debet. et ante omnia colonus curare debet, ut opera rustica suo quoque tempore faciat, ne intempestiva cultura deteriorem fundum faceret. praeterea villarum curam agere debet, ut eas incorruptas habeat. 4Culpae autem ipsius et illud adnumeratur, si propter inimicitias eius vicinus arbores exciderit. 5Ipse quoque si exciderit, non solum ex locato tenetur, sed etiam lege Aquilia et ex lege duodecim tabularum arborum furtim caesarum et interdicto quod vi aut clam: sed utique iudicis, qui ex locato iudicat, officio continetur, ut ceteras actiones locator omittat. 6Vis maior, quam Graeci θεοῦ βίαν appellant, non debet conductori damnosa esse, si plus, quam tolerabile est, laesi fuerint fructus: alioquin modicum damnum aequo animo ferre debet colonus, cui immodicum lucrum non aufertur. apparet autem de eo nos colono dicere, qui ad pecuniam numeratam conduxit: alioquin partiarius colonus quasi societatis iure et damnum et lucrum cum domino fundi partitur. 7Qui columnam transportandam conduxit, si ea, dum tollitur aut portatur aut reponitur, fracta sit, ita id periculum praestat, si qua ipsius eorumque, quorum opera uteretur, culpa acciderit: culpa autem abest, si omnia facta sunt, quae diligentissimus quisque observaturus fuisset. idem scilicet intellegemus et si dolia vel tignum transportandum aliquis conduxerit: idemque etiam ad ceteras res transferri potest. 8Si fullo aut sarcinator vestimenta perdiderit eoque nomine domino satisfecerit, necesse est domino vindicationem eorum et condictionem cedere.
25 Gaius, On the Provincial Edict, Book X. Where rent has been promised in general terms, to be decided by a third party, a lease is not held to have been made. But where it is stated that the amount of the rent shall be estimated by Titius, the lease will be valid subject to this condition; and if the party mentioned fixes the rent, it must, by all means, be paid in accordance with his estimate, and the lease will become operative. If, however, he refuses to do this, or is unable to fix the rent, the lease will be of no effect, just as if the amount of the rent had not been determined. 1Where a man has leased anyone a tract of land to be cultivated, or a house to be occupied, and, for some reason or other, he sells the land or the house, he must see that the purchaser permits the tenant to enjoy the land or occupy the house, in accordance with the terms of the same contract; otherwise, if he is prevented from doing so, he can bring an action on lease against the vendor. 2Where a neighbor, in building a house, cuts off the light from a room, the landlord will be liable to the tenant. There is certainly no doubt that the tenant can give up the lease in a case of this kind; and also, where an action is brought against him for the rent, compensation must be taken into account. We understand that the same rule applies where the landlord does not repair any doors or windows which may have been damaged or destroyed. 3The lessee should do everything in accordance with the terms of the lease, and, above all things, he should be careful to perform the labors on the farm at the proper time, lest cultivation out of season cause the soil to be deteriorated. He should also take care of the buildings in order to prevent them from being damaged. 4He will also be considered to be to blame if his neighbor, through enmity, cuts down the trees. 5If he himself cuts them down, he will not only be liable to an action on lease, but also to those under the Lex Aquilia and the Law of the Twelve Tables with reference to cutting trees by stealth, and to the interdict based on a violent or clandestine act. It is, undoubtedly, a part of the duty of the judge who hears the case on lease, to see that the lessor abandons the other actions. 6Superior force, which the Greeks call “Divine Power,” should not cause any loss to the tenant where the crops are injured in an unusual degree, otherwise, he must endure any moderate damage with untroubled mind, where he is not deprived of any extraordinary profit. It is evident, however, that we are speaking of a tenant who pays his rent in cash; on the other hand, where he divides the crops, as in the case of a partnership, he must also share the loss and gain with the owner of the land. 7Where anyone takes charge of the transportation of a column, and it is broken when it is raised, or while it is being carried, or when it is unloaded, he will be responsible for the damage, where this happened through his fault, or that of any of the workmen whom he employs. He will not be to blame, however, if all precautions are taken which a very diligent and careful man should take. We, of course, understand that the same rule applies where anyone agrees to transport casks or lumber, as well as other things which are to be conveyed from one place to another. 8If a fuller or a tailor should lose clothing, and satisfy the owner of the same, the latter must assign to him his rights of action to recover the property.
26 Ulpianus libro secundo disputationum. In operis duobus simul locatis convenit priori conductori ante satisfieri.
26 Ulpianus, Disputations, Book II. Where anyone has hired his services to two employers at the same time, he must satisfy the one who has first employed him.
27 Alfenus libro secundo digestorum. Habitatores non, si paulo minus commode aliqua parte caenaculi uterentur, statim deductionem ex mercede facere oportet: ea enim condicione habitatorem esse, ut, si quid transversarium incidisset, quamobrem dominum aliquid demoliri oporteret, aliquam partem parvulam incommodi sustineret: non ita tamen, ut eam partem caenaculi dominus aperuisset, in quam magnam partem usus habitator haberet. 1Iterum interrogatus est, si quis timoris causa emigrasset, deberet mercedem necne. respondit, si causa fuisset, cur periculum timeret, quamvis periculum vere non fuisset, tamen non debere mercedem: sed si causa timoris iusta non fuisset, nihilo minus debere.
27 Alfenus, Digest, Book II. It is not always necessary to make a deduction from the rent in the case where tenants have been put to a little inconvenience, with reference to a part of their lodgings; for the tenant is in such a position that if anything should fall on the building, and by reason of this the owner be compelled to demolish a portion of the same, he ought to bear the slight inconvenience resulting therefrom; but, in doing so, the owner must not open that part of the house of which the tenant is accustomed to make the most use. 1Again, the question is asked, if a tenant should leave on account of fear, will he be obliged to pay the rent, or not? The answer is that, if he had good reason to be afraid, even though there was not actually any danger, he will not owe the rent; but if there was no just cause for fear, it will still be due.
28 Labeo libro quarto posteriorum epitomatorum a Iavoleno. Quod si domi habitatione conductor aeque usus fuisset, 1praestaturum etiam eius domus mercedem, quae vitium fecisset, deberi putat. 2Idem iuris esse, si potestatem conducendi habebat, uti pretium conductionis praestaret. sed si locator conductori potestatem conducendae domus non fecisset et is in qua habitaret conduxisset, tantum ei praestandum putat, quantum sine dolo malo praestitisset. ceterum si gratuitam habitationem habuisset, pro portione temporis ex locatione domus deducendum esse.
28 Labeo, Later Epitomes by Javolenus, Book IV. Where, however, the tenant still makes use of the house, he must pay the rent. 1Labeo thinks that the rent is due, even if the house is out of repair. 2The same rule of law applies where the tenant has the power to lease the house and pay the rent. If, however, the landlord does not give the tenant authority to rent the house in which he lives, and he, nevertheless, does rent it, Labeo thinks that he must indemnify him for all that he has paid without fraudulent intent. But if the tenant was occupying the house gratuitously, a deduction should be made in proportion to the unexpired time of the lease.
29 Alfenus libro septimo digestorum. In lege locationis scriptum erat: ‘redemptor silvam ne caedito neve cingito neve deurito neve quem cingere caedere urere sinito’. quaerebatur, utrum redemptor, si quem quid earum rerum facere vidisset, prohibere deberet an etiam ita silvam custodire, ne quis id facere possit. respondi verbum sinere utramque habere significationem, sed locatorem potius id videri voluisse, ut redemptor non solum, si quem casu vidisset silvam caedere, prohiberet, sed uti curaret et daret operam, ne quis caederet.
29 Alfenus, Digest, Book VII. The following was inserted in the contract of a lease: “The lessee shall neither cut down trees, nor girdle nor burn them, nor permit anyone to girdle, cut down, or burn the same.” The question arose whether the lessee should prevent anyone whom he saw doing something of this kind, or whether he should keep such a watch upon the trees that no one could do this. I answered that the word “permit” includes both significations, but that the lessor seemed to have intended that the lessee should not only prevent anyone whom he saw cutting down trees, but should also be careful and take such precautions that no one could cut them down.
30 Idem libro tertio digestorum a Paulo epitomatorum. Qui insulam triginta conduxerat, singula caenacula ita conduxit, ut quadraginta ex omnibus colligerentur: dominus insulae, quia aedificia vitium facere diceret, demolierat eam: quaesitum est, quanti lis aestimari deberet, si is qui totam conduxerat ex conducto ageret. respondit, si vitiatum aedificium necessario demolitus esset, pro portione, quanti dominus praediorum locasset, quod eius temporis habitatores habitare non potuissent, rationem duci et tanti litem aestimari: sin autem non fuisset necesse demoliri, sed quia melius aedificare vellet, id fecisset, quanti conductoris interesset, habitatores ne migrarent, tanti condemnari oportere. 1Aedilis in municipio balneas conduxerat, ut eo anno municipes gratis lavarentur: post tres menses incendio facto respondit posse agi cum balneatore ex conducto, ut pro portione temporis, quo lavationem non praestitisset, pecuniae contributio fieret. 2Qui mulas ad certum pondus oneris locaret, cum maiore onere conductor eas rupisset, consulebat de actione. respondit vel lege Aquilia vel ex locato recte eum agere, sed lege Aquilia tantum cum eo agi posse, qui tum mulas agitasset, ex locato etiam si alius eas rupisset, cum conductore recte agi. 3Qui aedem faciendam locaverat, in lege dixerat: ‘quoad in opus lapidis opus erit, pro lapide et manupretio dominus redemptori in pedes singulos septem dabit’: quaesitum est, utrum factum opus an etiam imperfectum metiri oporteret. respondit etiam imperfectum. 4Colonus villam hac lege acceperat, ut incorruptam redderet praeter vim et vetustatem: coloni servus villam incendit non fortuito casu. non videri eam vim exceptam respondit nec id pactum esse, ut, si aliquis domesticus eam incendisset, ne praestaret, sed extrariam vim utrosque excipere voluisse.
30 The Same, Digest of Epitomes by Paulus, Book III. A man who rented a house for thirty aurei, sub-let the separate rooms on such terms that he collected forty for all of them. The owner of the building demolished it, because he said that it was about to fall down. The question arose what the amount of damages should be, and whether the party who rented the entire house could bring an action on lease. The answer was that if the building was in such a bad condition that it was necessary to tear it down, an estimate should be made, and the damages assessed in proportion to the amount for which the owner had leased the premises, and that the time when the tenants were unable to occupy them should also be taken into consideration. If, however, it was not necessary to demolish the house, but the owner did so because he wished to build a better one, the judgment must be for the amount of the interest which the tenant had in his sub-tenants not being compelled to leave the premises. 1An ædile rented baths in a certain town for the term of a year, in order that they might be used gratuitously by the citizens. The baths having been destroyed by fire after three months, it was held that an action on lease could be brought against the proprietor of the baths, that a part of the price should be refunded in proportion to the time during which the baths were not available. 2Inquiry was made as to the action to be brought where a man hired mules to be loaded with a certain weight, and he who hired them injured them with heavier loads. The answer was that the owner could legally proceed either under the Lex Aquilia or in an action on lease, but that, under the Lex Aquilia, he could only sue the party who had driven the mules at the time; but, by an action on lease, he could properly proceed against him who hired them, even if someone else had injured them. 3A man who contracted for the building of a house stated in the agreement: “I will furnish the stone necessary for the work, and the owner shall pay to the contractor seven sesterces for each foot, and as much for the stone as for the labor.” The question arose whether the work must be measured before, or after it was completed. The answer was that it should be measured while it was still unfinished. 4A tenant received a house under the condition that he would return it uninjured, except so far as damage might result through violence or age. A slave of the tenant burnt the house, but not accidentally. The opinion was given that this kind of violence would not appear to have been excepted; and that it was not agreed that the tenant should not be responsible if a slave burnt it, but that both the parties intended that violence exerted by strangers should be excepted.
31 Idem libro quinto digestorum a Paulo epitomatorum. In navem Saufeii cum complures frumentum confuderant, Saufeius uni ex his frumentum reddiderat de communi et navis perierat: quaesitum est, an ceteri pro sua parte frumenti cum nauta agere possunt oneris aversi actione. respondit rerum locatarum duo genera esse, ut aut idem redderetur (sicuti cum vestimenta fulloni curanda locarentur) aut eiusdem generis redderetur (veluti cum argentum pusulatum fabro daretur, ut vasa fierent, aut aurum, ut anuli): ex superiore causa rem domini manere, ex posteriore in creditum iri. idem iuris esse in deposito: nam si quis pecuniam numeratam ita deposuisset, ut neque clusam neque obsignatam traderet, sed adnumeraret, nihil alius eum debere apud quem deposita esset, nisi tantundem pecuniae solveret. secundum quae videri triticum factum Saufeii et recte datum. quod si separatim tabulis aut heronibus aut in alia cupa clusum uniuscuiusque triticum fuisset, ita ut internosci posset quid cuiusque esset, non potuisse nos permutationem facere, sed tum posse eum cuius fuisset triticum quod nauta solvisset vindicare. et ideo se improbare actiones oneris aversi: quia sive eius generis essent merces, quae nautae traderentur, ut continuo eius fierent et mercator in creditum iret, non videretur onus esse aversum, quippe quod nautae fuisset: sive eadem res, quae tradita esset, reddi deberet, furti esse actionem locatori et ideo supervacuum esse iudicium oneris aversi. sed si ita datum esset, ut in simili re solvi possit, conductorem culpam dumtaxat debere (nam in re, quae utriusque causa contraheretur, culpam deberi) neque omnimodo culpam esse, quod uni reddidisset ex frumento, quoniam alicui primum reddere eum necesse fuisset, tametsi meliorem eius condicionem faceret quam ceterorum.
31 The Same, Epitomes of the Digest by Paulus, Book V. Several persons loaded the ship of Saufeius with grain without separating it; Saufeius delivered to one of them his grain out of the common heap, and the vessel was afterwards lost. The question arose whether the others could bring an action against the master of the ship with reference to their share of the grain on the ground that he had diverted the cargo. The answer was that there are two kinds of leases of property, one of them where the article must itself be returned, as where clothing is entrusted to a fuller to be cleaned, or where something of the same kind must be given back; as, for instance, where a mass of silver is given to a workman to be made into vases, or gold is given to be made into rings. In the first instance, the property still belongs to the owner; in the second, he becomes the creditor for its value. The same rule of law applies to deposits, for where a party has deposited a sum of money without having enclosed it in anything, or sealed it up, but simply after counting it, the party with whom it is left is not bound to do anything but repay the same amount of money. In accordance with this, the grain seems to have become the property of Saufeius, and he very properly gave up a portion of it. If, however, the grain of each of the parties had been separately enclosed by means of boards, or in sacks, or in casks, so that what belonged to each could be distinguished, it could not be changed; for then the owner of the wheat which the master of the ship had delivered could bring an action for its recovery, and, therefore, the authorities do not approve of actions on the ground of the diversion of the cargo in this case, because the merchandise which was delivered to the master was either all of the same kind and at once became his, and the owner became his creditor (for it is not held that there was a diversion of the cargo since it became the property of the master); or the identical article which was delivered must be restored, and in this instance, an action for theft would lie against the master, and hence an action on the ground of the diversion of the cargo would be superfluous. Where, however, the merchandise was delivered with the understanding that the same kind should be returned, the party receiving it would only be liable for negligence, as liability for negligence exists where the contract is made for the benefit of both parties, and no negligence can exist where the master returned to one of the owners a portion of the grain, since it was necessary for him to deliver his share to one of them before the others, even though he would be in a better condition than the others by his doing so.
32 Iulianus libro quarto ex Minicio. Qui fundum colendum in plures annos locaverat, decessit et eum fundum legavit. Cassius negavit posse cogi colonum, ut eum fundum coleret, quia nihil heredis interesset. quod si colonus vellet colere et ab eo, cui legatus esset fundus, prohiberetur, cum herede actionem colonum habere: et hoc detrimentum ad heredem pertinere: sicuti si quis rem, quam vendidisset nec dum tradidisset, alii legasset, heres eius emptori et legatario esset obligatus.
32 Julianus, On Minicius, Book IV. A man who leased a tract of land to be cultivated for a term of several years died, and devised the said land. Cassius denied that the tenant could be compelled to cultivate the land, because the heir had no interest in it. If, however, the tenant desired to cultivate it, and was prevented from doing so by the party to whom the land had been left, he would be entitled to an action against the heir, and the loss must be borne by the heir; just as where anyone sells something and bequeaths it to another before he delivers it; for, in this instance, the heir will be liable both to the purchaser and to the legatee.
33 Africanus libro octavo quaestionum. Si fundus quem mihi locaveris publicatus sit, teneri te actione ex conducto, ut mihi frui liceat, quamvis per te non stet, quominus id praestes: quemadmodum, inquit, si insulam aedificandam locasses et solum corruisset, nihilo minus teneberis. nam et si vendideris mihi fundum isque priusquam vacuus traderetur publicatus fuerit, tenearis ex empto: quod hactenus verum erit, ut pretium restituas, non ut etiam id praestes, si quid pluris mea intersit eum vacuum mihi tradi. similiter igitur et circa conductionem servandum puto, ut mercedem quam praestiterim restituas, eius scilicet temporis, quo fruitus non fuerim, nec ultra actione ex conducto praestare cogeris. nam et si colonus tuus fundo frui a te aut ab eo prohibetur, quem tu prohibere ne id faciat possis, tantum ei praestabis, quanti eius interfuerit frui, in quo etiam lucrum eius continebitur: sin vero ab eo interpellabitur, quem tu prohibere propter vim maiorem aut potentiam eius non poteris, nihil amplius ei quam mercedem remittere aut reddere debebis,
33 Africanus, Questions, Book VIII. Where a tract of land which you have leased to me is confiscated, you will be liable to an action on lease to permit me to enjoy it, even though it is not your fault that I cannot do so; just as it is held if you contract for the building of a house, and the ground on which it is to be erected is destroyed, you will, nevertheless, be liable. For if you should sell me a tract of land, and it should be confiscated before delivery, you will be liable to an action on purchase; and this is true to the extent that you must return the price, and not that you will be obliged to indemnify me for anything more than my interest in having the vacant tract of land delivered to me. Hence, I think that the rule also applies to a lease, so that you must return the rent that I have paid for the time I was not able to enjoy the property, but you cannot be compelled to do this by any other action on lease; for if your tenant is prevented from enjoying the land either by you, or by another party whom you have the power to hinder from doing so, you must indemnify him to the extent of his interest in enjoying the property, and in this his profit is also included. If, however, he is hindered by anyone whom you cannot control, on account of his superior force or authority, you will not be liable to him for anything but to release the rent which has not been paid, or to refund that which has been paid.
34 Gaius libro decimo ad edictum provinciale. perinde ac latronum incursu id acciderit.
34 Gaius, On the Provincial Edict, Book X. Just as if this had happened through an attack of robbers.
35 Africanus libro octavo quaestionum. Et haec distinctio convenit illi, quae a Servio introducta et ab omnibus fere probata est, ut, si aversione insulam locatam dominus reficiendo, ne ea conductor frui possit, effecerit, animadvertatur, necessario necne id opus demolitus est: quid enim interest, utrum locator insulae propter vetustatem cogatur eam reficere an locator fundi cogatur ferre iniuriam eius, quem prohibere non possit? intellegendum est autem nos hac distinctione uti de eo, qui et suum praedium fruendum locaverit et bona fide negotium contraxerit, non de eo, qui alienum praedium per fraudem locaverit nec resistere domino possit, quominus is colonum frui prohibeat. 1Cum fundum communem habuimus et inter nos convenit, ut alternis annis certo pretio eum conductum haberemus, tu, cum tuus annus exiturus esset, consulto fructum insequentis anni corrupisti. agam tecum duabus actionibus, una ex conducto, altera ex locato: locati enim iudicio mea pars propria, conducti autem actione tua dumtaxat propria in iudicium venient. deinde ita notat: nonne quod ad meam partem attinebit, communi dividundo praestabitur a te mihi damnum? recte quidem notat, sed tamen etiam Servi sententiam veram esse puto, cum eo scilicet, ut, cum alterutra actione rem servaverim, altera perematur. quod ipsum simplicius ita quaeremus, si proponatur inter duos, qui singulos proprios fundos haberent, convenisse, ut alter alterius ita conductum haberent, ut fructus mercedis nomine pensaretur.
35 Africanus, Questions, Book VIII. This distinction corresponds to that which was introduced by Servius, and has been approved by almost all authorities; that is to say, where a landlord prevents a tenant from enjoying the use of the house by making repairs upon it, it must be considered whether or not the house was demolished through necessity; for what difference would it make whether the lessor of a building is compelled to repair it on account of its age, or where the lessor of land is compelled to endure injury from a party whom he cannot prevent from inflicting it? It must be understood, however, that we make use of this distinction with reference to a person who has leased his land to be enjoyed, and has transacted the business in good faith; and not to one who has fraudulently leased land belonging to another and is unable to resist the owner of the same, when he prevents the tenant from enjoying it. 1When we hold land in common, and it is agreed upon between us that we shall have the renting of the same during alternate years for a certain amount, and you, when your year has expired, purposely destroy the crop of the ensuing year, I can proceed against you by means of two actions, one based on ownership, and the other on the ground of a lease; for my share is involved in the action on ownership, and yours only in the action on lease. Then, it is asked, will it not be the fact that, so far as my share is concerned, the loss sustained by me on your account must be made good by means of an action in partition? This opinion is correct, but, nevertheless, I think that that of Servius is also true, namely: “That where I make use of either one of the above-named actions the other will be destroyed.” This question we may ask more simply, if it is suggested that, where it has been agreed upon between two parties who have separate tracts of land belonging to them, each shall have a right to lease the land of the other, with the understanding that the crops shall be delivered by way of rent.
36 Florentinus libro septimo institutionum. Opus quod aversione locatum est donec adprobetur, conductoris periculum est: quod vero ita conductum sit, ut in pedes mensurasve praestetur, eatenus conductoris periculo est, quatenus admensum non sit: et in utraque causa nociturum locatori, si per eum steterit, quo minus opus adprobetur vel admetiatur. si tamen vi maiore opus prius interciderit quam adprobaretur, locatoris periculo est, nisi si aliud actum sit: non enim amplius praestari locatori oporteat, quam quod sua cura atque opera consecutus esset.
36 Florentinus, Institutes, Book VII. Where work is to be done under a contract, it is at the risk of the contractor until it is accepted. But, indeed, if it has been contracted for to be paid by feet or measure, it will be at the risk of the contractor, until it is measured; and in both instances the risk must be borne by the employer if he was to blame for the work not being accepted or measured. If, however, the work should be destroyed by superior force, before being accepted, it will be at the risk of the employer, unless some other agreement has been made. The contractor is not obliged to be responsible to the employer for anything more than he could have accomplished by his care and labor.
37 Iavolenus libro octavo ex Cassio. Si, priusquam locatori opus probaretur, vi aliqua consumptum est, detrimentum ad locatorem ita pertinet, si tale opus fuit, ut probari deberet.
37 Javolenus, On Cassius, Book VIII. If a work is destroyed by superior force before it has been accepted by the employer, he must bear the loss, if the work was of such a character that he should have accepted it.
39 Ulpianus libro secundo ad edictum. Non solet locatio dominium mutare.
39 Ulpianus, On the Edict, Book II. A lease does not usually change the ownership of property.
40 Gaius libro quinto ad edictum provinciale. Qui mercedem accipit pro custodia alicuius rei, is huius periculum custodiae praestat.
40 Gaius, On the Provincial Edict, Book V. He who receives compensation for the safe-keeping of any property is responsible for the custody of the same.
41 Ulpianus libro quinto ad edictum. Sed de damno ab alio dato agi cum eo non posse Iulianus ait: qua enim custodia consequi potuit, ne damnum iniuria ab alio dari possit? sed Marcellus interdum esse posse ait, sive custodiri potuit, ne damnum daretur, sive ipse custos damnum dedit: quae sententia Marcelli probanda est.
41 Ulpianus, On the Edict, Book V. Julianus, however, says that an action cannot be brought against one person for an injury committed by another; for by what degree of care can he prevent unlawful damage from being caused by someone else? Marcellus, however, says that this can sometimes be done where the party could have taken such care of the property that it could not have been injured, or where he himself, having charge of it, committed the damage. This opinion of Marcellus should be approved.
42 Paulus libro tertio decimo ad edictum. Si locatum tibi servum subripias, utrumque iudicium adversus te est exercendum, locati actionis et furti.
42 Paulus, On the Edict, Book XIII. If you steal a slave that has been leased to you, one of two actions is available against you: the action on lease, and the one for theft.
43 Idem libro vicesimo primo ad edictum. Si vulneraveris servum tibi locatum, eiusdem vulneris nomine legis Aquiliae et ex locato actio est, sed alterutra contentus actor esse debet, idque officio iudicis continetur, apud quem ex locato agetur.
43 The Same, On the Edict, Book XXI. If you wound a slave that has been leased to you, the action under the Lex Aquilia or the one on lease can be brought on account of the wound, but the plaintiff must be content with one or the other of these; and this is a part of the duty of the judge before whom proceedings based on the lease are instituted.
44 Ulpianus libro septimo ad edictum. Locare servitutem nemo potest.
44 Ulpianus, On the Edict, Book VII. No one can lease a servitude.
45 Paulus libro vicesimo secundo ad edictum. Si domum tibi locavero et servi mei tibi damnum dederint vel furtum fecerint, non teneor tibi ex conducto, sed noxali actione. 1Si hominem tibi locavero, ut habeas in taberna, et is furtum fecerit, dubitari potest, utrum ex conducto actio sufficiat, quasi longe sit a bona fide actum, ut quid patiaris detrimenti per eam rem quam conduxisti, an adhuc dicendum sit extra causam conductionis esse furti crimen et in propriam persecutionem cadere hoc delictum: quod magis est.
45 Paulus, On the Edict, Book XXII. If I lease you a house and my slaves cause you any damage, or commit a theft, I am not liable to you on the lease, but in a noxal action. 1If I lease you a slave to be employed in your shop, and he commits a theft, it may be doubted whether an action on hiring will be sufficient in this instance; for it is far from being in accordance with the good faith implied by the contract that you should suffer any loss on account of the property which you have hired; or should it be stated that, in addition to the right of action based on the hiring, there is also one on the ground of the crime of theft, and that this offence gives rise to a peculiar right of action of its own? This is the better opinion.
46 Ulpianus libro sexagesimo nono ad edictum. Si quis conduxerit nummo uno, conductio nulla est, quia et hoc donationis instar inducit.
46 Ulpianus, On the Edict, Book LXIX. Where anyone leases property for a coin of trifling value the lease is void, for this resembles a donation.
47 Marcellus libro sexto digestorum. Cum apparebit emptorem conductoremve pluribus vendentem vel locantem singulorum in solidum intuitum personam, ita demum ad praestationem partis singuli sunt compellendi, si constabit esse omnes solvendo: quamquam fortasse iustius sit etiam, si solvendo omnes erunt, electionem conveniendi quem velit non auferendam actori, si actiones suas adversus ceteros praestare non recuset.
47 Marcellus, Digest, Book VI. When it is ascertained that a purchaser or a lessee has sold or leased the property to several other parties, in such a way that each of them is responsible for the entire amount, they can only be compelled to pay their shares where it is established that they are all solvent; although, perhaps, it would be more just that, even where they are all solvent, the claimant should not be deprived of the right of suing any one of them that he wishes, if he does not refuse to assign the rights of action which he has against the others.
48 Idem libro octavo digestorum. Si cui locaverim faciendum quod ego conduxeram, constabit habere me ex locato actionem. 1Qui servum conductum vel aliam rem non immobilem non restituit, quanti in litem iuratum fuerit damnabitur.
48 The Same, Digest, Book VIII. If I contract with anyone to perform some labor which I myself have agreed to do, it is settled that I will be entitled to an action on lease against him. 1Where a party refuses to restore to me a slave, or any other movable property which I have leased to him, judgment shall be rendered against him for the amount of damages sworn to by me in court.
49 Modestinus libro sexto excusationum. Οἱ ἐπίτροποι γενόμενοι ἢ κουράτορες πρὶν ἐκτίσαι τὰ τῆς κηδεμονίας μισθωταὶ Καίσαρος γενέσθαι κωλύονται· κἄν τις ἀποκρυψάμενοσ τοῦτο προσέλθῃ τῇ μισθώσει τῶν τοῦ Καίσαρος χωρίων, ὡς παραποιήσας κολάζεται· τοῦτο ἐκέλευσεν ὁ αὐτοκράτωρ Σεβῆρος. 1Κατὰ ταῦτα δὲ καὶ οἱ χειρίζοντες ἐπιτρόπας ἢ κουρατορίας εἰσὶν κεκωλυμένοι μισθοῦσθαι καὶ παρὰ τοῦ ταμιείου χωρία.
49 Modestinus, Excuses, Book VI. Where guardians or curators have been appointed, they are forbidden to rent any property belonging to the Emperor before they have rendered their accounts. And if anyone, concealing the fact, should appear for the purpose of renting lands belonging to the Emperor, he shall be punished as a forger. This decision the Emperor Severus also sanctioned. 1As a result of this, persons who are administering a guardianship or a curatorship are forbidden to rent anything from the Treasury.
50 Idem libro decimo pandectarum. Si ignorans quis militi quasi pagano locaverit, exigere illum posse probandum est: non enim contemnit disciplinam, qui ignoravit militem.
50 The Same, Pandects, Book X. Where anyone ignorantly leases property to a soldier, believing him to be a civilian, it is settled that he can collect the rent from him, for since he was not aware that he was a soldier, he is not guilty of violation of military discipline.
51 Iavolenus libro undecimo epistularum. Ea lege fundum locavi, ut, si non ex lege coleretur, relocare eum mihi liceret et quo minoris locassem, hoc mihi praestaretur, nec convenit, ut, si pluris locassem, hoc tibi praestaretur, et cum nemo fundum colebat, pluris tamen locavi: quaero, an hoc ipsum praestare debeam. respondit: in huiusmodi obligationibus id maxime spectare debemus, quod inter utramque partem convenit: videtur autem in hac specie id silentio convenisse, ne quid praestaretur, si ampliore pecunia fundus esset locatus, id est ut haec conventio pro locatore tantummodo interponeretur. 1Locavi opus faciendum ita, ut pro opere redemptori certam mercedem in dies singulos darem: opus vitiosum factum est: an ex locato agere possim? respondit: si ita opus locasti, ut bonitas eius tibi a conductore adprobaretur, tametsi convenit, ut in singulas operas certa pecunia daretur, praestari tamen tibi a conductore debet, si id opus vitiosum factum est: non enim quicquam interest, utrum uno pretio opus an in singulas operas collocatur, si modo universitas consummationis ad conductorem pertinuit. poterit itaque ex locato cum eo agi, qui vitiosum opus fecerit. nisi si ideo in operas singulas merces constituta erit, ut arbitrio domini opus efficeretur: tum enim nihil conductor praestare domino de bonitate operis videtur.
51 Javolenus, Epistles, Book XI. I leased a tract of land under the condition that, if it was not cultivated in compliance with the terms of the lease, I should have the right to lease it again to another, and that the tenant should indemnify me for any loss which I might sustain. In this instance, it was not agreed that, if I rented the land for more money, the excess should be paid to you; and, as no one was cultivating the land, I, nevertheless, leased it for more. I ask whether I should give the amount of the excess to the first lessee. The answer was that, in obligations of this kind, we should pay particular attention to what was agreed upon between the parties. It is held, however, that in this instance, it was tacitly agreed that nothing should be paid if the land was rented for more money; that is to say, this provision was inserted in the agreement only for the benefit of the lessor. 1I hired work to be done under the condition of paying a certain amount every day for said work to the party employed. The work being badly done, can I bring an action against him on the lease? The answer was, if you hired this work to be done on condition that the party employed to do it should be liable to you for its being properly performed, even though it was agreed upon that a certain sum of money should be paid for each piece of work, the contractor will still be responsible to you if the work was badly done. For, indeed, it makes no difference whether the work is performed for one price, or whether payment is made for each portion of the same, provided the whole of it must be performed by the contractor. Therefore, an action on lease can be brought against him who performed the work badly, unless payment was arranged for separate portions of it, so that it might be performed according to the approval of the owner; for then the contractor is not considered to guarantee to the owner the excellence of the entire work.
52 Pomponius libro trigesimo primo ad Quintum Mucium. Si decem tibi locem fundum, tu autem existimes quinque te conducere, nihil agitur: sed et si ego minoris me locare sensero, tu pluris te conducere, utique non pluris erit conductio, quam quanti ego putavi.
52 Pomponius, On Quintus Mucius, Book XXXI. If I lease you a tract of land for ten aurei, and you think that I am leasing it to you for five, the contract is void. If, however, I think that I am leasing it to you for less, and you think that you are leasing it for more, the lease will not be for a larger sum than I thought that it was.
53 Papinianus libro undecimo responsorum. Qui fideiussor exstitit apud mancipem pro colono publicorum praediorum, quae manceps ei colono locavit, rei publicae non tenetur: sed fructus in eadem causa pignoris manent.
53 Papinianus, Opinions, Book XI. Where a surety appears for a tenant of public lands before an officer having charge of the same, and which the said officer has leased to the tenant, he will not be liable to the government; but the crops, in this instance, will remain as a pledge.
54 Paulus libro quinto responsorum. Quaero, an fideiussor conductionis etiam in usuras non illatarum pensionum nomine teneatur nec prosint ei constitutiones, quibus cavetur eos, qui pro aliis pecuniam exsolvunt, sortis solummodo damnum agnoscere oportere. Paulus respondit, si in omnem causam conductionis etiam fideiussor se obligavit, eum quoque exemplo coloni tardius illatarum per moram coloni pensionum praestare debere usuras: usurae enim in bonae fidei iudiciis etsi non tam ex obligatione proficiscantur quam ex officio iudicis applicentur, tamen, cum fideiussor in omnem causam se applicuit, aequum videtur ipsum quoque agnoscere onus usurarum, ac si ita fideiussisset: ‘in quantum illum condemnari ex bona fide oportebit, tantum fide tua esse iubes?’ vel ita: ‘indemnem me praestabis?’ 1Inter locatorem fundi et conductorem convenit, ne intra tempora locationis Seius conductor de fundo invitus repelleretur et, si pulsatus esset, poenam decem praestet Titius locator Seio conductori: vel Seius conductor Titio, si intra tempora locationis discedere vellet, aeque decem Titio locatori praestare vellet: quod invicem de se stipulati sunt. quaero, cum Seius conductor biennii continui pensionem non solveret, an sine metu poenae expelli possit. Paulus respondit, quamvis nihil expressum sit in stipulatione poenali de solutione pensionum, tamen verisimile esse ita convenisse de non expellendo colono intra tempora praefinita, si pensionibus paruerit et ut oportet coleret: et ideo, si poenam petere coeperit is qui pensionibus satis non fecit, profuturam locatori doli exceptionem. 2Paulus respondit servum, qui aestimatus colonae adscriptus est, ad periculum colonae pertinebit et ideo aestimationem huius defuncti ab herede colonae praestari oportere.
54 Paulus, Opinions, Book V. I ask whether a surety who appears for a lessee will also be liable for interest on rent which has not been paid, or whether he can take advantage of the constitutions by which it is provided that those who pay money for others are only obliged to be responsible for the principal that is due. Paulus answered that even if the surety bound himself for everything relating to the lease, he also will be obliged to pay interest; just as the tenant is compelled to do, where he is in default for the payment of the rent. For, in contracts made in good faith, even though interest may not so much arise from the obligation, as it is dependent upon the decision of the judge, still, where the surety renders himself responsible for everything relating to the contract of the lessee, it seems but just that he also should bear the burden of interest, if he obligated himself as follows: “Do you bind yourself to the amount of a judgment justly rendered?” Or in these words: “Do you promise to indemnify me?” 1It was agreed by the lessor and the lessee of a tract of land that the tenant, Seius, should not be ejected against his will during the term of the lease, and if he was ejected, the lessor, Titius, should pay him a penalty of ten aurei; or, if the lessee, Seius, should desire to withdraw during the term of the lease, he should be compelled to pay ten aurei to the lessor, Titius, and the parties reciprocally stipulated with reference to this. I ask, as the lessee, Seius, did not pay the rent for two consecutive years, whether he could be ejected without Titius fearing to incur the penalty. Paulus answered that although nothing was stated in the penal stipulation with reference to the payment of the rent, still, it is probable that it was agreed that the tenant should not be ejected during the term of the lease, if he paid the rent, and cultivated the land, as he should do; so that if he understood to bring suit for the penalty, and had not paid the rent, the lessor could avail himself of an exception on the ground of bad faith. 2Paulus gave it as his opinion that, where anyone assigns a slave to his tenant after estimating his value, he will be at the risk of the tenant; and therefore, if he should die, his value, as appraised, must be made good by the heir of the tenant.
55 Idem libro secundo sententiarum. Dominus horreorum effractis et compilatis horreis non tenetur, nisi custodiam eorum recepit: servi tamen eius cum quo contractum est propter aedificiorum notitiam in quaestionem peti possunt. 1In conducto fundo si conductor sua opera aliquid necessario vel utiliter auxerit vel aedificaverit vel instituerit, cum id non convenisset, ad recipienda ea quae impendit ex conducto cum domino fundi experiri potest. 2Qui contra legem conductionis fundum ante tempus sine iusta ac probabili causa deseruerit, ad solvendas totius temporis pensiones ex conducto conveniri potest, quatenus locatori in id quod eius interest indemnitas servetur.
55 The Same, Sentences, Book II. Where a granary has been broken into and plundered, the owner will not be liable, unless he was charged with the safe-keeping of its contents. But the slaves of the person with whom the contract was made can be demanded for the purpose of being tortured, on account of the knowledge of the building which they possess. 1Where a tract of land is leased and the lessee makes some addition to the same, by means of his labor, which is either necessary or useful, or erects a building, or makes some improvement which had not been agreed upon, he can proceed by an action on lease against the owner of the property for the recovery of the amount which he has expended. 2Where a lessee, contrary to the provisions of his lease, abandons the land without just or reasonable cause before his term has expired, he can be sued in an action on lease for the payment of the rent for the entire term, and for the indemnification of the lessor to the extent of his interest.
56 Idem libro singulari de officio praefecti vigilum. Cum domini horreorum insularumque desiderant diu non apparentibus nec eius temporis pensiones exsolventibus conductoribus aperire et ea quae ibi sunt describere, a publicis personis quorum interest audiendi sunt. tempus autem in huiusmodi re biennii debet observari.
56 The Same, On the Duties of the Prefect of the Night-Watch. Where the proprietors of magazines and warehouses desire them to be opened on account of the nonappearance of the lessees, and their failure to pay the rent during the term of the lease, and wish to have an inventory of the contents made by the public officials whose duty it is to do so, they shall be heard. The time to be considered in cases of this kind should be two years.
57 Iavolenus libro nono ex posterioribus Labeonis. Qui domum habebat, aream iniunctam ei domui vicino proximo locaverat: is vicinus cum aedificaret in suo, terram in eam aream amplius quam fundamenta caementicia locatoris erant congessit, et ea terra adsiduis pluviis inundata, ita parieti eius qui locaverat umore praestituto madefacto, aedificia corruerunt. Labeo ex locato tantummodo actionem esse ait, quia non ipsa congestio, sed umor ex ea congestione postea damno fuerit, damni autem iniuriae actio ob ea ipsa sit, per quae, non extrinsecus alia causa oblata, damno quis adfectus est: hoc probo.
57 Javolenus, On the Last Works of Labeo, Book IX. A man who owned a house leased an empty space adjoining the same to his next neighbor. The said neighbor, while building upon his own ground, threw the dirt for the excavation upon the said vacant space, and heaped it up higher than the stone foundation of the lessor; and the earth, having become wet by constant rains, weakened the wall of the lessor with moisture to such an extent that the building collapsed. Labeo says that only an action on lease will lie, because it was not the heaping up of the earth itself, but the moisture arising therefrom that subsequently caused the injury, but that an action on the ground of unlawful damage will only lie where the damage has not been produced by some outside cause. I approve this opinion.
58 Labeo libro quarto posteriorum a Iavoleno epitomatorum. Insulam uno pretio totam locasti et eam vendidisti ita, ut emptori mercedes inquilinorum accederent. quamvis eam conductor maiore pretio locaret, tamen id emptori accedit, quod tibi conductor debeat. 1In operis locatione non erat dictum, ante quam diem effici deberet: deinde, si ita factum non esset, quanti locatoris interfuisset, tantam pecuniam conductor promiserat. eatenus eam obligationem contrahi puto, quatenus vir bonus de spatio temporis aestimasset, quia id actum apparet esse, ut eo spatio absolveretur, sine quo fieri non possit. 2Quidam in municipio balineum praestandum annuis viginti nummis conduxerat et ad refectionem fornacis fistularum similiumque rerum centum nummi ut praestarentur ei, convenerat: conductor centum nummos petebat. ita ei deberi dico, si in earum rerum refectionem eam pecuniam impendi satisdaret.
58 Labeo, Later Epitomes by Javolenus, Book IV. You leased an entire house for a gross sum, and then sold it under condition that the rent of the tenants should belong to the purchaser. Even though the lessee may have sub-let the said house for a larger amount, it, nevertheless, will belong to the purchaser, because the lessee owed it to you. 1It was stated in a contract for labor that it should be performed before a certain day, and then, if this was not done, the lessee should be liable to an amount equal to the interest of the lessor. I think that this obligation is contracted to the extent that a good citizen would fix the damages with reference to the time; because the intention of the parties seems to have been that the work should be completed within the time during which it could be done. 2A certain individual rented a bath in a town for forty drachmæ a month, and it was agreed that he should be furnished a hundred drachmæ for the repair of the furnace, the pipes, and other portions of the bath, and the lessee demanded the hundred drachmæ. I think that they were owing to him, if he gave security that the money would be expended for repairs.
59 Iavolenus libro quinto Labeonis posteriorum. Marcius domum faciendam a Flacco conduxerat: deinde operis parte effecta terrae motu concussum erat aedificium. Massurius Sabinus, si vi naturali, veluti terrae motu hoc acciderit, Flacci esse periculum.
59 Javolenus, On the Lost Works of Labeo, Book V. Marcius was employed to build a house by Flaccus. After the work was partly done the building was destroyed by an earthquake. Massurius Sabinus says that if the accident took place through some force of nature, as for instance, an earthquake, Flaccus must assume the risk.
60 Labeo posteriorum libro quinto a Iavoleno epitomatorum. Cum in plures annos domus locata est, praestare locator debet, ut non solum habitare conductor ex calendis illis cuiusque anni, sed etiam locare habitatori si velit suo tempore possit. itaque si ea domus ex kalendis Ianuariis fulta in kalendis Iuniis permansisset, ita ut nec habitare quisquam nec ostendere alicui posset, nihil locatori conductorem praestaturum, adeo ut nec cogi quidem posset ex kalendis Iuliis refecta domu habitare, nisi si paratus fuisset locator commodam domum ei ad habitandum dare. 1Heredem coloni, quamvis colonus non est, nihilo minus domino possidere existimo. 2Vestimenta tua fullo perdidit et habes unde petas nec repetere vis: agis nihilo minus ex locato cum fullone, sed iudicem aestimaturum, an possis adversus furem magis agere et ab eo tuas res consequi fullonis videlicet sumptibus: sed si hoc tibi impossibile esse perspexerit, tunc fullonem quidem tibi condemnabit, tuas autem actiones te ei praestare compellet. 3Lege dicta domus facienda locata erat ita, ut probatio aut improbatio locatoris aut heredis eius esset: redemptor ex voluntate locatoris quaedam in opere permutaverat. respondi opus quidem ex lege dicta non videri factum, sed quoniam ex voluntate locatoris permutatum esset, redemptorem absolvi debere. 4Mandavi tibi ut excuteres, quanti villam aedificare velles: renuntiasti mihi ducentorum impensam excutere: certa mercede opus tibi locavi, postea comperi non posse minoris trecentorum eam villam constare: data autem tibi erant centum, ex quibus cum partem impendisses, vetui te opus facere. dixi, si opus facere perseveraveris, ex locato tecum agere, ut pecuniae mihi reliquum restituas. 5Messem inspiciente colono, cum alienam esse non ignorares, sustulisti. condicere tibi frumentum dominum posse Labeo ait, et ut id faciat, colonum ex conducto cum domino acturum. 6Locator horrei propositum habuit se aurum argentum margaritam non recipere suo periculo: deinde cum sciret has res inferri, passus est. proinde eum futurum tibi obligatum dixi, ac si propositum fuit, remissum videtur. 7Servum meum mulionem conduxisti: neglegentia eius mulus tuus perit. si ipse se locasset, ex peculio dumtaxat et in rem versum damnum tibi praestaturum dico: sin autem ipse eum locassem, non ultra me tibi praestaturum, quam dolum malum et culpam meam abesse: quod si sine definitione personae mulionem a me conduxisti et ego eum tibi dedissem, cuius neglegentia iumentum perierit, illam quoque culpam me tibi praestaturum aio, quod eum elegissem, qui eiusmodi damno te adficeret. 8Vehiculum conduxisti, ut onus tuum portaret et secum iter faceret: id cum pontem transiret, redemptor eius pontis portorium ab eo exigebat: quaerebatur, an etiam pro ipsa sola reda portorium daturus fuerit. puto, si mulio non ignoravit ea se transiturum, cum vehiculum locaret, mulionem praestare debere. 9Rerum custodiam, quam horrearius conductoribus praestare deberet, locatorem totorum horreorum horreario praestare non debere puto, nisi si in locando aliter convenerit.
60 Labeo, Last Epitomes by Javolenus, Book V. Where a house is rented for several years, the lessor must not only permit the lessee to occupy it from the Kalends of July of each year, but also to sub-let the same during the term of his lease, if he desires to do so. Therefore, if the said house remains in a dilapidated condition from the Kalends of January to the Kalends of July, so that no one can occupy it, and it cannot be shown to anyone; the lessee will not be obliged to pay any rent to the lessor. Nor, indeed, can he be compelled to occupy the house, if it has been repaired after the Kalends of July, unless the lessor was ready to furnish him another house suitable for his residence. 1I think that the heir of a lessee, even though he may not be a tenant, will, nevertheless, hold possession for the owner of the property. 2If a fuller loses your clothing, and you have the means to recover it, but do not wish to avail yourself of them; you can, nevertheless, bring an action on lease against the fuller. The judge, however, must decide whether it will not be better for you to bring an action against the thief and recover your property from him; of course, at the expense of the fuller. But if he should consider this to be impossible, he must then render judgment in your favor against the fuller, and compel you to assign your rights of action to him. 3An agreement having been entered into, a house was contracted for under the condition that it should be subject to the approval or disapproval of the owner, or his heir. The contractor, with the consent of the other party, made certain changes in the work. I have it as My opinion that the work did not seem to have been performed in compliance with the terms of the contract, but since the changes had been made with the consent of the owner, the contractor should be released. 4I directed you to make an estimate of the amount you would ask to build a house, and you answered me that you would build it for two hundred aurei. I gave you the contract for a certain sum, and I afterwards ascertained that the house could not be built for less than three hundred aurei. I had already paid you a hundred, a part of which you had expended, and I then forbade you to proceed with the work. I held that if you continued to do the work, I would be entitled to an action on lease against you, to compel you to refund to me the remainder of the money. 5You remove a harvest, while the tenant is looking on, when you are aware that it belongs to someone else. Labeo says that the owner can sue you for the grain, and that the tenant has a right, under his lease, to bring an action against the owner to compel him to do so. 6The lessor of a warehouse had posted upon it that he would not receive deposits of gold, silver, or jewels at his own risk, and afterwards he, knowingly, allowed articles of this kind to be left in said warehouse. Hence, I stated that he would be liable to you just as if the clause in the notice had been erased. 7You employed a slave of mine who was a muleteer, and you lost a mule through his negligence. If he hired himself, I hold that I must make good the damage to you on the ground of property employed for my benefit, but only to the extent of the peculium of the slave. If, however, I myself leased him, I will not be responsible to you for anything else than fraud and negligence. But if you leased a muleteer from me without the designation of his person, and I deliver to you the one by whose negligence the animal perished, I say that I must be responsible to you for negligence, because I selected the slave who caused you loss of this kind. 8You hired a vehicle to carry your baggage and make a journey, and when a bridge was crossed, and the keeper demanded toll, the question arose whether the driver should pay toll for his carriage alone. I think that, if he knew when he hired his vehicle that he would cross the bridge, he should pay the toll. 9I hold that the lessee of an entire warehouse should not be responsible to the proprietor of the same for the custody of property, for which the proprietor himself should be liable to those who rented of him, unless it was otherwise agreed upon in the lease.
61 Scaevola libro septimo digestorum. Colonus, cum lege locationis non esset comprehensum, ut vineas poneret, nihilo minus in fundo vineas instituit et propter earum fructum denis amplius aureis annuis ager locari coeperat. quaesitum est, si dominus istum colonum fundi eiectum pensionum debitarum nomine conveniat, an sumptus utiliter factos in vineis instituendis reputare possit opposita doli mali exceptione. respondit vel expensas consecuturum vel nihil amplius praestaturum. 1Navem conduxit, ut de provincia Cyrenensi Aquileiam navigaret olei metretis tribus milibus impositis et frumenti modiis octo milibus certa mercede: sed evenit, ut onerata navis in ipsa provincia novem mensibus retineretur et onus impositum commisso tolleretur. quaesitum est, an vecturas quas convenit a conductore secundum locationem exigere navis possit. respondit secundum ea quae proponerentur posse.
61 Scævola, Digest, Book VII. A tenant, although it was not included in the terms of his lease that he should plant vines, nevertheless, did plant them on the land, and, on account of the yield of the same, the field was rented for ten aurei more every year. The question arose whether the owner could sue the tenant, who had been ejected from the land for non-payment of rent, on the ground that rent was due; or whether he could recover the expense profitably incurred by planting the vines where an exception on the ground of fraud was filed. The answer was that he could either recover the expense, or that he would be liable for nothing more. 1A man leased for a certain sum a vessel to sail from the province of Cyrene to Aquileia, it being loaded with three thousand measures of oil and eight thousand bushels of grain. It happened, however, that the vessel, while loaded, was detained in said province for nine months, and the cargo was confiscated. The question arose whether the freight agreed upon could be collected by the owner of the vessel from the party who hired it, in accordance with the contract. The answer was that, in conformity to the facts stated, this could be done.
62 Labeo libro primo pithanorum. Si rivum, quem faciendum conduxeras et feceras, antequam eum probares, labes corrumpit, tuum periculum est. Paulus: immo si soli vitio id accidit, locatoris erit periculum, si operis vitio accidit, tuum erit detrimentum.
62 Labeo, Probabilities, Book I. If you make a contract for digging a canal, and complete it, and, before it is accepted, it is destroyed by accident, the risk will be yours. Paulus says that, even if the accident occurred through some fault of the ground, the party hiring the work to be done must be responsible; but if it happened because the work was defective, you must bear the loss.