- •Time-Limited Interests in Land
- •The Common Core of European Private Law
- •Contents
- •General editors’ preface
- •Preface
- •Contributors
- •Abbreviations
- •1 Setting the scene
- •1. The scene
- •2. Balancing the interests: a handful of common problems
- •3. Time-limited interests arising by operation of law
- •2 General introduction
- •1. Overview
- •2. The hybrid character of time-limited interests in land
- •3. The approach and purpose of this study
- •3.1. Background
- •3.2. Drawing a geographical map of the law of Europe
- •4. The genesis of the book
- •4.1. Narrowing down the topic
- •4.2. Terminology
- •5. Structure of the book
- •3 Historical evolution of the maxim ‘sale breaks hire’
- •1. Introduction
- •2. The Roman-law approach
- •3. The ius commune position
- •3.1. Medieval learned law
- •3.2. From medieval learned law to the Prussian Civil Code
- •3.3. From the Prussian Civil Code to the German Civil Code
- •4. Conclusions
- •4 The many faces of usufruct
- •1. Usufruct in tax and estate planning
- •1.1. Transferring assets yet retaining control and income
- •1.2. Overview
- •2. The concept of usufruct
- •3. The traditional face
- •3.1. Control
- •3.2. Income
- •4. The modern face of usufruct
- •4.1. Control
- •4.2. Income
- •5. The Janus face
- •6. The twisted face
- •6.1. Default rules
- •6.2. Contractual expansion
- •6.3. Limits
- •7. Conclusion
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Case 1
- •Case 2
- •Case 3
- •Case 4
- •Case 5
- •Case 6
- •Case 7
- •Case 8
- •Case 9
- •Case 10
- •Case 11
- •Case 12
- •Belgium
- •Denmark
- •England
- •Germany
- •Greece
- •Hungary
- •Italy
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Bibliography
- •GENERAL BIBLIOGRAPHY
- •AUSTRIA
- •BELGIUM
- •DENMARK
- •ENGLAND
- •GERMANY
- •GREECE
- •HUNGARY
- •ITALY
- •THE NETHERLANDS
- •POLAND
- •PORTUGAL
- •SCOTLAND
- •SOUTH AFRICA
- •SPAIN
- •General index
- •Country index
- •Books in the series
3Historical evolution of the maxim ‘sale breaks hire’
p a u l j . d u p l e s s i s
1. Introduction
The maxim emptio tollit locatum (sale lifts/breaks hire) is a shorthand way of describing the legal effect of the transfer of ownership of the object of lease on sitting tenants. It is a construction of the historical ius commune and has had an enduring impact on the development of the law of letting and hiring in the civilian tradition. The aim of this chapter is to trace a history of this maxim from its roots to its current incarnation against the backdrop of the history of the European ius commune, that is the corpus of Roman, canon and feudal law which developed during the late medieval period and which provided the intellectual foundations from which the legal systems of (mainly, but not exclusively) western Europe arose. As the ius commune in a historical sense is a broad and controversial concept, an element of delimitation is required to give focus to this discussion.1 At the end of the medieval period, this body of ‘common law’ fragmented as different nation states formed. During the early modern period which followed, through the process of ‘reception’, different legal systems engaged with the terms and concepts comprising the ius commune in different ways. From this process three distinct legal families (Germanic, Francophile and Italianate) arose in western Europe. This chapter will focus solely on the Germanic legal family as it provides a comprehensive analytical account of the second life of this maxim. Since this chapter is concerned with the history of a specific legal maxim, a doctrinal approach is required. While doctrinal legal history is a good starting point, detractors of this method have pointed out that investigations of this kind are too narrowly focused,
1For criticisms of modern understanding of the historical ius commune, see Osler, ‘Myth of European Legal History’, pp. 393–410; ‘Fantasy Men’, pp. 169–93.
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take law out of context and do not take other factors such as macro-level narratives surrounding European legal history into account.2 Whether these criticisms are valid is a subject for a different chapter, but it is worth pointing out that European legal culture is largely based on (re)interpretations of a fixed canon of mostly Roman legal texts. Since there is undoubtedly much value in doctrinal investigations, this chapter will utilise this method as a starting point, but will also employ the Ewald approach,3 which emphasises ‘law in the mind’, that is structures of thought that past jurists may have employed in relation to this topic.
2. The Roman-law approach
The Roman-law foundations of this maxim have been discussed extensively by Mayer-Maly, Thomas and Zimmermann.4 The following is largely a summary of their findings. The two Roman legal texts on which this maxim is founded are:
D.19.2.25.1 Gaius, Provincial Edict, book 10. When a man leases out to someone the enjoyment of a farm or a dwelling, and he then for some reason sells the farm or building, he should, in the same agreement with the buyer, provide that the tenant farmer is permitted to enjoy and the urban tenant to dwell; otherwise he (the tenant farmer), if forbidden (to enjoy or dwell), may sue him on hire. [Watson translation]
C.4.65.9 The Emperor Alexander Severus to Aurelius Fuscus, a soldier. It is not necessary for a purchaser of a farm to retain a tenant to whom the former owner let it, unless he bought it with that condition; but if it is shown that he in some manner, though not in writing, agreed that the lease should continue, he will be compelled in an equitable action to comply with the agreement (ad 234). [Blume translation]
The textual infelicities surrounding these texts are well documented and need not detain us here.5 They present a snapshot of classical Roman law spanning the period from the mid-second to the mid-third century ad. Given the paucity of textual evidence, it is impossible to
2On this matter, see generally the contributions collected in Caroni and Dilcher, Norm und Geschichte.
3Ewald, ‘Legal History’, pp. 553–9.
4Mayer-Maly, Locatio Conductio, p. 45; Thomas, ‘Sitting Tenant’, pp. 35–44; Zimmermann, Obligations, pp. 379–80. See also de Wet, ‘Huur Gaat voor Koop’, pp. 74–87.
5Thomas, ‘Sitting Tenant’, pp. 35–6. For a discussion of a related problem relating to the death of the landlord during the course of the tenant’s term of lease, see Du Plessis, ‘Hereditability of Locatio Conductio’, pp. 139–53 with the caveat that this piece did not fully address the issue of novation.
‘ s a l e b r e a k s h i r e ’ |
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determine when the rule explained by Gaius arose. The tone of the (later) Imperial rescript suggests a degree of legal uncertainty (probably owing to the absence of a written contract), which the petitioner expected the Imperial chancery to correct in an authoritative manner. Since both texts have a provincial context, it is plausible that the uncertainty may be related to the enactment of the Constitutio Antoniniana in 212 ad, which gave most inhabitants of the Empire citizenship and must therefore also have had an impact on the different forms of ownership in existence at the time, but these matters are best left for another time.
A collective reading of these two texts generates the following three scenarios:
(a)A landlord sells a property with sitting tenants and in the sale agrees a pactum with the purchaser to tolerate the tenants for the remainder of their term of lease. The purchaser abides by the pactum.
(b)A landlord sells a property with sitting tenants and in the sale agrees a pactum with the purchaser to tolerate the tenants for the remainder of their term of lease. The purchaser contravenes
the pactum and evicts or threatens to evict the tenants.
(c)A landlord sells a property with sitting tenants and does not make any special provision in the sale to protect them. The purchaser evicts or threatens to evict the tenants.
From the three scenarios outlined above, it would appear that the rule which existed in classical Roman law may be formulated in the following manner. When a landlord decided to sell a property (whether urban or agricultural) during the course of a tenant’s term of lease, the purchaser did not have to accommodate the sitting tenants unless the seller and purchaser had made an agreement to that effect when the object was sold. Where such an agreement existed and the purchaser contravened it (scenario b), the sitting tenants had no direct recourse against him, but had to sue their former landlord (the seller) under the now defunct contract of lease. The seller could then seek recourse against the purchaser on the basis of the contravention of their agreement. Thomas6 has suggested that contractual provisions of this kind would have been fairly common as they served to protect landlords from lawsuits brought by former tenants when selling the property. The Imperial rescript suggests that the new owner could be compelled to endure the tenant for the remainder of his term of lease and one can imagine that
6 Thomas, ‘Sitting Tenant’, p. 38.
22 i n t r o d u c t i o n a n d c o n t e x t
this would be crucial in the case of agricultural tenancy where, for example, the harvesting of agricultural produce was at stake. This may explain the use of the term ‘enjoyment’ (frui) in D.19.2.25.1 and the agricultural context of the Imperial rescript where it concerns the renting of a fundus.
Suffice it to say that both texts presuppose a smooth handover from seller to purchaser in order to satisfy the requirements of conveyance without the sitting tenants objecting. As Thomas has shown,7 it must not be assumed that this was necessarily always the case, and two texts, D.43.16.12 and D.43.16.18, discuss circumstances where the sitting tenants were less than willing to vacate the property.
Much attention has been paid by modern scholars to the motivations for the existence of this rule in Roman law. While the sitting tenant is not left entirely without remedy, he does not have any legal recourse against eviction by the new owner and must instead seek recourse by suing the former owner (his landlord) ex conducto for his interesse.8 On a strict interpretation of the distinction between real and personal rights in Roman law, this rule makes perfect sense. Letting and hiring in Roman law only generated personal (contractual) rights between landlord and tenant. The tenant merely had possessio naturalis (detentio) under the contract of letting and hiring and therefore could not defend himself/herself against the real right of the owner.9 It has been suggested that this rule is an example of the Roman legal bias in favour of ownership at the expense of lesser contractual rights.10 While there may be some elements of truth in this statement, it does not convey the full complexity of the situation. As Zimmermann has demonstrated,11 this rule is an example of the complex relationship between real and personal rights in Roman law. In his view, it was not the sale which ‘terminated’ the pre-existing contract of letting and hiring. Rather, the ‘real’ effect of the sale made the continued existence of the contract impossible. Schrage12 has identified two further reasons for the existence of this rule. First, since letting and hiring only ever generated personal rights (with the exception of emphyteusis and superÞcies, which were only grudgingly classified as related to letting and hiring), the
7Ibid. 36–7. For associated complexities such as the division of rent and subletting, see ibid. 38–9.
8Ibid. 44. 9 Zimmermann, Obligations, pp. 379–80.
10 See Frier, Landlords and Tenants, p. 64. 11 Zimmermann, Obligations, pp. 370–80.
12Schrage, ‘Emptio (nondum) tollit locatum’, pp. 1–2. See also De Wet, ‘Huur Gaat voor Koop’, pp. 75–7.