4. Conclusions

In his now celebrated work on obligations, Zimmermann identified three reasons for the demise of the Roman-law rule ‘sale breaks hire’ in the history of the ius commune.46 In his view, these reasons were the textual inconsistencies in the Roman law, the force of local customary law as is visible, for example, in Roman-Dutch law of the seventeenth century, and the pervasive influence of secularised natural-law doctrine in the eighteenth century. While these factors undoubtedly played an important role in the history of this maxim, there are a number of additional factors which need to be highlighted. The first of these is the rigidity of the distinction between real and personal rights in Roman law and the Roman jurists’ unwillingness to accept the principle of contracts in favour of third parties. The second important factor is the interplay in the works of medieval jurists between the intellectual ideal of the Roman-law rule and the reality of leases based on feudal custom. It seems plausible that the reason why the medieval jurists were so intent on extending protection to sitting tenants was because of the realities of feudal tenure with which they would have been familiar in daily practice. The development of dominium directum and dominium utile must not be underestimated in this context. The third important factor is the interaction between Germanic custom and the Roman-legal rule and the manner in which the strength of Germanic customs resisted the adoption of it. Although this led to a host of different legal positions, there appears to have been a convergence between the customary and by now ius commune position regarding sitting tenants in the sense that both regimes favoured protecting the sitting tenant against the singularis successor of the landlord. This convergence seems to have been noticed by the supporters of the natural-law doctrine and it therefore comes as little surprise that the drafter of the Prussian Civil Code opted to award the sitting tenant a real right in lease which enabled him to resist the singularis successor. Although there is no direct evidence that the changes in the structure of the law of contract in the ius commune had an impact on this maxim, it is worth pointing out that the mid-seventeenth century also witnessed the abandoning of the closed Roman system of contracts in favour of a general principle of contract based on consent and it is conceivable, though as yet unproven, that this may have influenced juristic perceptions regarding the Roman prohibition

46 Zimmermann, Obligations, pp. 377–80.