ability of the tenant to protect his holding of the property was restricted to contractual measures in Roman law. Secondly, and perhaps most importantly, Roman contract law was fundamentally opposed to the creation of contracts in favour of third parties and therefore the ability to create a contractual arrangement binding both sitting tenants and new owner was limited.

Two final points deserve mention. We do not know whether the rule as articulated by Gaius, and in the Imperial rescript, applied to movable objects or not. The texts are silent on the matter. Furthermore, there is no evidence that the new owner had to notify the sitting tenants of the eviction and whether such eviction had to take place within the confines of a legal process.

3. The ius commune position

3.1. Medieval learned law

The rise of the historical ius commune, an amalgam of Roman, canon and feudal law created during the period 1100–1400, is traditionally linked to the intellectual endeavours of three different groups of jurists, namely the Glossators, the Ultramontani and the Commentators.13 The majority of the works referred to in this section are juristic commentaries on the Justinianic Code, initially a more fertile source for commentary than other parts of the Justinianic compilation of Roman law.14 As Schrage has pointed out,15 C.4.65.9 became the sedes materiae around which most medieval jurists focused their discussions of this maxim. Much of the groundwork regarding the medieval interpretations of these texts has been done by de Wet16 and Schrage and what follows is merely a summary of their findings, together with a few additional comments.

Two initial observations are required. First, the contract of letting and hiring does not appear to have attracted much juristic comment in classical canon law of the late medieval period.17 While this may create the impression that medieval scholars of canon law were not interested in leases, it seems more plausible, in the absence of any specific comments, that the Roman law of letting and hiring was absorbed into canon law en masse. This would account for the widespread use of the

13 Stein, Roman Law, pp. 38–71. 14 But see Radding, ‘Justinian’s Corpus’, pp. 35–50. 15 Schrage, ‘Sale Breaks Hire’, pp. 287–96. 16 De Wet, ‘Huur Gaat voor Koop’, p. 74.

17For a survey of the possible influences of pre-classical canon law on this topic, see ibid. 77–80.

periods of time associated with especially emphyteusis, the Glossators developed this idea further by drawing a distinction between a shortterm lease and a lease for a longer term (variously defined as a lease for a period of ten years or longer).23 A short-term lease only granted the tenant a personal right and therefore ‘sale broke hire’, but a long-term lease gave the tenant a real right, dominium utile, and therefore the singularis successor was bound to tolerate the tenant until the end of his tenancy. He could protect his possession against the singularis successor using an actio in rem or an exceptio.24 Thus, in the culmination of the glossatorial endeavours, the Accursian Gloss, a distinction was drawn between a short-term lease, where the maxim applied, and a long-term lease, where it did not and where the tenant could not defend his contractual rights arising from the lease against the new owner.

The scientific approach of the School of Orleans (Ultramontani), which had a profound impact on legal science during much of the thirteenth century, continued the work of the Glossators when it came to the interpretation of this maxim. One of the prominent French jurists associated with this movement, Jacques de Revigny, essentially followed Accursius’ views.

The most prominent Commentators of the fourteenth century, Bartolus de Saxoferrato and Baldus de Ubaldis, supported the Accursian position and expanded it.25 Bartolus’ view is particularly significant as he argued in a consilium that the protection enjoyed by the tenant under a long-term lease should be extended to a short-term tenant.26 This was done using a rather ingenious construction involving a pledge without possession, better known as a hypothec. Bartolus argued that a tenant in a short-term lease should secure a hypothec over the (mostly immovable) property of the landlord to ensure the continuation of the tenancy for the full term. Thus, should the landlord sell or dispose in another way of the leased property, the sitting tenant could secure the continuation of the lease against the singularis successor by invoking the hypothec.27 Since a hypothec generated real rights

23This distinction between short-term and long-term leases appears to have originated in the feudal and canon-law traditions; see De Wet, ‘Huur Gaat voor Koop’, pp. 79–80. See also generally Grossi, Locatio ad longum tempus.

24Schrage, ‘Emptio (nondum) tollit locatum’, pp. 8–11.

25De Wet, ‘Huur Gaat voor Koop’, p. 87; Schrage, ‘Sale Breaks Hire’, p. 291.

26De Wet, ‘Huur Gaat voor Koop’, pp. 86–7; Schrage, ‘Sale Breaks Hire’, pp. 291–2.

27This construction may also cast light on Bartolus’ conception of letting and hiring as a ‘real’ contract, but this matter requires further investigation.

26 i n t r o d u c t i o n a n d c o n t e x t

enforceable against any third party, the tenant could therefore effectively resist the singularis successor. While Bartolus’ invention is a clever one, Schrage28 has rightly pointed out that this construction is ‘artificial’ and ‘unsatisfactory’. A hypothec was an ancillary agreement designed to secure performance of a primary agreement (usually the repayment of debt) and one cannot help but feel that the extension attempted here was doctrinally unsound.

Zimmermann29 has suggested that the manifold extensions identified and elaborated upon by medieval jurists rendered the Roman-law rule meaningless. While on some level this statement is correct, it would seem that there is more to the matter. For it has to be asked why the medieval jurists were so intent on transforming the rights of the tenant under the contract of letting and hiring into real rights.30 The answer must lie both in the context of medieval agricultural arrangements where long-term leases were the norm and where vestiges of feudal tenure remained, and in the desire to protect the interests of the tenant, whether humble or noble, against those of the propertied classes. This requires a more detailed investigation which cannot be undertaken here.

3.2. From medieval learned law to the Prussian Civil Code

The period from the start of the fifteenth century to the end of the eighteenth century is usually described in terms of the ‘reception’ of (mostly, but not exclusively) Roman legal principles and the rise of the Germanic legal family within the context of the Holy Roman Empire.31 The reception process gained momentum during the fifteenth century when local Germanic customary laws began to be influenced by ius commune principles distilled mainly from Roman law. The reception in the Germanic lands comprising the Holy Roman Empire was comprehensive.

Schrage32 has demonstrated that in leases based on early medieval Germanic customs sitting tenants were protected against a new owner. Most of these customs had a feudal background and they provided the tenant with a measure of protection against eviction by the new owner through the remedy of Gewere, but this position was by no means

28 Schrage, ‘Sale Breaks Hire’, pp. 288–9. 29 Zimmermann, Obligations, pp. 379–81.

30See De Wet, ‘Huur Gaat voor Koop’, p. 84.

31See on this matter generally Wieacker, Privatrechtsgeschichte; Stein, Roman Law, pp. 75–103.

32Schrage, ‘Sale Breaks Hire’, pp. 293–4.

universally held. The plurality of customary views on the protection of the sitting tenant together with the feudal heritage of these leases in many cases prevented the wholesale reception of the ius commune maxim.33 The interaction between the Roman-law rule, its ius commune incarnation and Germanic customary law is a key aspect of this section of our discussion.

De Wet34 has shown that the historical development of this maxim in (what would later become) the Netherlands was similar to that in the Germanic lands comprising the Holy Roman Empire. A comparative analysis may yield important results from which conclusions concerning the development in the Germanic legal family may be drawn. The picture emerging from the Spanish Netherlands (then still part of the Holy Roman Empire) during the sixteenth century is a varied one. In certain regions, leases were based on (feudal) customary law which prevented the ius commune maxim from taking root. As mentioned above, leases based on custom tended to provide the tenant with protection against the singularis successor. In other regions, feudal customs were replaced by the ius commune maxim which gave a tenant of a longterm lease a real right and therefore protected him against the successor singularis, while a tenant of a short-term lease could still only protect his tenancy in a roundabout way by using the hypothec construction created by Bartolus de Saxoferrato. In the northern regions, in what was to become the United States of the Netherlands, a similar patchwork of legal opinions existed.35 In some regions the Roman-law rule prevailed, in others the ius commune maxim was followed. Some jurists even advocated that the hypothec construction provided inadequate protection for short-term tenants and that all tenants (according to the famous Dutch natural-law scholar, Hugo Grotius) acquired a real right by virtue of the contract of letting and hiring and could therefore protect themselves against a singularis successor irrespective of the period of the lease.36 This was a simplified version of the medieval position which essentially did away with the medieval distinction between short-term and long-term leases and which also disposed of the Bartolus construction in cases of short-term leases.

Given the similar historical development of this ius commune maxim in the Germanic legal family, it comes as little surprise that the same

33 De Wet, ‘Huur Gaat voor Koop’, pp. 167–73. 34 Ibid. 174–8.

35Ibid. 179–94. See also Schrage, ‘Sale Breaks Hire’, pp. 294–6.

36For a summary of the Roman-Dutch position, see Schrage, ‘Sale Breaks Hire’, pp. 294–6.

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line of development can be traced through the works of jurists of the sixteenth and seventeenth centuries. Jurists of the sixteenth century follow the ius commune maxim, while some of those of the seventeenth century, probably under the influence of the natural-law doctrine, grant all tenants a real right by virtue of the contract of letting and hiring.37 It is well documented that ‘Germanic’ legal scholarship of the seventeenth and eighteenth centuries came under the influence of the secularised natural-law doctrine. This legal-philosophical current had a particular impact on the drafter of the Prussian Civil Code, Carl Gottlieb Svarez (Schwarz), who was a student of one of the most famous natural-law scholars of the eighteenth century, Christian Wolff.

Thus, prior to the enactment of the Prussian Civil Code towards the end of the eighteenth century, the Roman-law maxim ‘sale breaks hire’ had undergone a considerable transformation. The author of this Code had a variety of juristic constructions on which to base his article and these ranged in complexity from, on the one hand, the rejection of the ius commune maxim (in favour of the Roman-law or the customary-law position) to, on the other hand, an acceptance of it, but with the interpretations and accretions added onto it, especially those arising from the natural-law supporters. What is remarkable about these different positions is that (with the exception of the Roman-law position) they actually seem to have converged by the eighteenth century to the extent that both the ius commune maxim and customary law advocated the protection of the tenant against the singularis successor irrespective of the time-period of the lease.

The Prussian Civil Code contains one article on the topic (ALR I.21.358). This article encapsulates the essence of the European development up to this point. According to Enneccerus,38 this article gave all sitting tenants a real right over the leased property. In formulating the article in this manner, the Prussian Civil Code broke with the Romanlaw maxim. The acquisition of this real right through tenancy was linked to the sitting tenant’s possession of the leased property and, though admirable, it created various problems and academic debates, especially in relation to loss of possession and scenarios where the sitting tenant was unwilling to relinquish possession to the new owner.39 The reason for this is that the Prussian Civil Code, following Roman law, emphasised the legal function of possession. For all its

37 De Wet, ‘Huur Gaat voor Koop’, pp. 177–8. 38 Enneccerus, Lehrbuch, § 355. 39 Otte, ‘Rechtsstellung des Mieters’, pp. 464–6.