!!Экзамен зачет 2023 год / The Law of Obligations

been destroyed or damaged or had otherwise disappeared? The edict itself only gave an answer as to the consequences of a deterioration:

"[Sji quid autem post vcnditionem traditioncmquc deterius emptoris opera familiae procuratorisvc cius factum erit . . . ut ca omnia restituat."273

The actio redhibitoria can still be brought, but where the deterioration of the slave was caused by either the purchaser himself or by his people, the purchaser has to compensate the vendor for the decrease in value.274 It is not entirely clear under which circumstances such compensation was due; the term "opera" is a fairly neutral one275 and cannot, for instance, be equated with culpa or dolus. At the time the deterioration took place, the object belonged to the purchaser and thus it would hardly have been possible to think of applying fault criteria in the ordinary sense. Neither did opera necessarily imply specific actions on the part of the purchaser or his people; some influence on a psychological level was sufficient, "ut puta si imitatione conservorum apud emptorem talis factus est, aleator forte vel vinarius vel erro evasit".276 Here, owing to the bad example of his new fellow-slaves, the homo venditus had deteriorated into a gambler, an alcoholic or a rover. The Roman lawyers probably made their decision dependent upon whether the deterioration would also have occurred had the slave continued to be with the vendor or whether it was due to his transfer to the purchaser.277 In the latter instance, the purchaser had to compensate the vendor, no matter whether he had been at fault or not. This would seem to be in line with what the actio redhibitoria was generally taken to be designed for: namely to effect a restoration of both vendor and purchaser to the position they would have been in had the contract not been concluded.278

(b) The fiction of "mortuus redhibetur" and problems arising therefrom

It must come as a surprise, in view of this, that, according to a widely held opinion, the risk of accidental loss (as opposed to deterioration) always had to be borne by the vendor.279 "Mortuus redhibetur" is the

273Ulp. D. 21, l, 1, 11.

274Cf. today §§ 467, 351 BGB; Kcrr, Sale and Lease, pp. 61 sqq.

275Cf. Rosalie Lederle, Mortuus redhibetur, Die Rikkahwicklunq паск Wandlun^ im romischen

Recht (1983), pp. 23 sqq.

276Ulp. D . 21, 1, 25, 6.

277Pe<j./Ulp. D. 21, 1, 25, 4: "Pcdius ait acquum fuissc id dumtaxat imputari emptori ex facto procuratoris ct familiae, quod non fuit passurus servus nisi venissct: quod autem passurus erat etiam, si non venisset, in eo concedi emptori servi sui noxac dcditionem et ex eo, inquit, quod procurator commisit, solum actionum praestandarum necessitatem ei

iniungi." See Peter Mader, "Mortuus redhibetur?", (1984) 101 ZSS 225 sq.

278Cf. supra p. 317.

279Gliick, vol. 20, p. 75; Ernst Eck, "Beitrag zur Lehre von den adilizisch.cn Klagen", in:

Juristische Abhandlungen, Festgahc Jiir Georg Beseler (1885), pp. 159 sqq.; Windscheid/Kipp,

§394, 2; Georg Thielmann, "Actio redhibitoria und zufa'lliger Untergang der Kaufsache", in: Studi in onore di Edoardo Volterra, vol. II (1971), pp. 487 sqq.; Lederle, op. cit., note 275, pp. 30 sqq.

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famous tag extracted from the Roman sources;280 or as §§ 467, 350 BGB put it:281 the right to demand redhibition of the sale is not barred

by the fact that the object which the purchaser received, has been destroyed. Taken as a general rule, however, designed to cover accidental loss at large,282 the fiction of "mortuus redhibetur" is unsatisfactory.283 The purchaser was owner of the object at the time it was destroyed. "Casum sentit dominus" is what one should naturally be inclined to say. Why make an exception to this rule and allow the purchaser to claim back the purchase price (even though he is not able to return the object), when the object was defective? The defect, from the purchaser's point of view, would then turn out to be a distinctly lucky coincidence.284

It has therefore been suggested that the fiction of mortuus redhibetur be restricted to those cases where the purchaser lost the slave due to the defect which gave rise to the actio redhibitoria.285 This is, indeed, the solution adopted, mutatis mutandis, by the French and Italian codes,286 and it would certainly be very attractive also to attribute it to classical Roman law.287 It would fit in very well with the above-mentioned

2HI> Cf Paul. \X 21, 1, 47; Pomp. O. 21, l,48pr.;Ulp. IX 21, 1, 31. 5 and 6; Ulp. D. 21, 1, 31, 24; Ulp. D. 21, 1, 38, 3. "Mortuus redhibetur" is a legal fiction, for the purchaser was (probably) not required to hand back the corpse of the slave. The situation has to be treated

as if the purchaser was able to restore the (living) slave.

281 The fathers of the BGB merely followed the ius commune (as it was then generally seen) and advanced no further argument for the adoption of the rule; cf "Motive", in: Mu^dan, vol. II, p. 156. Cf. also Wessels, Contract, § 4743, followed, for instance, in HahThermotank Natal (Ply.) Ltd. v. Hardman 1968 (4) SA 818 (D) at 827F-H. For further discussion on the South African law, see Mackeiirtan's Sale of Goods in South Africa (5th ed., 1984), pp. 149 sqq. For further comparative material on the topic, see Hermann Wcitnauer, in: Hans Dolle, Kotntncntar гитEiuheitlicheti Kaufrecht (1976), Vorbem. Art. 78, pp. 499 sqq.

2H2 As to where the purchaser had negligently caused the death of the slave, see Ulp.

D.21, 1, 31, 11.

"' For further discussion, see Heinrich Honsell, "Gefahrtragung und Schadensersatz bei arglistiger Tauschung". (1970) Monatsschrift j'iir Dcutsches Recht 717 sqq.; Ernst von Cacmmerer, "'Mortuus redhibetur', Bemerkungen zu den Urteilen BGHZ 53, 144 und 57,

137". in: Festschrift fur Karl Larenz (1973), pp. 621 sqq.; Karl Larcnz, Lehrbuch des Schuldrechts, vol. I (14th ed., 1987), pp. 406 sqq.

244 For the various attempts to explain the principle of "mortuus redhibetur", sec Lederle, op. at., note 275. pp. 34 sqq.

2K:> Heinrich Honsell (1970) Monatsschrift fur Deutsches Recht 717 sqq.; idem, Gedachtniss-chrift Kunket, p. 61; Mader (1984) 101 ZSS2M sqq.

Art. 1647 code civil; art. 1492 III codicc civile. Cf. also Pothier, Trails du central de vente, n. 221. A South African case in point is Marks Ltd. v. Laughton 1920 AD 12 at 21 (per limes CJ).

2M7 Arguably, this solution was in actual fact adopted by the Roman lawyers, where the slave had not died but had otherwise disappeared, as, for instance, where he had run away from the purchaser. This case is dealt with in Pomp./Ulp. D. 21, 1, 21, 3. According to Pomponius, the purchaser can still bring the actio redhibitoria (as long as he cannot be blamed for this behaviour of the slave—cf. e.g. Ulp. D. 21, 1, 23 pr. ". . . ut puta . . .

saevitia emptoris fugitivum esse coeperit"). Instead of returning the slave, he had only to provide security (ensuring that he would continue searching for the slave and hand him back to the vendor once he had been found). It may be argued that the decision was based on the fact that the loss of the slave was caused by its defectiveness (sale of a servus fugitivus).

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general idea, underlying function and application of the actio redhibitoria {"in integrum restituere debere"288):289 if the slave would have died anyway (because he suffered from a physical defect), the loss would normally have fallen on the vendor; had the contract of sale not taken place, the vendor would have had neither the purchase price nor the slave. Consequently, if the actio redhibitoria aims at restoring this situation, the purchaser must be allowed to claim back the purchase price without having to hand back the slave. Otherwise, where the death of the slave had its origin in the sphere of the purchaser, or where it was purely accidental: had the contract of sale not taken place, the vendor would not have the purchase price but he would still be in possession of the slave (unless it can be assumed that the same accident would have struck the slave had he remained with the vendor).290 The problem is, however, that we find no indication in the Roman sources for such a restrictive application of "mortuus redhibetur".291 On the contrary, Ulp. D. 21, 1, 31, 11 appears to indicate that, unless the purchaser could be blamed for the death of the slave, the risk was on the vendor; for this text, by introducing a further fiction ("nam si culpa

eius decessit, pro vivo habendus est"), makes the negligent purchaser liable to the vendor for the value of the slave.292 But it may well be that

post-classical compilers substituted subjective (fault) for the classical objective criteria of risk allocation. In other words: classical law may have applied the fiction of mortuus redhibetur in cases where the death would have occurred no matter whether the slave was with the purchaser or with the vendor (principal case: death caused by the defect, but also natural disaster hitting both estates). Consequence: the price can be reclaimed, even though the slave cannot be returned, i.e. the risk is on the vendor. The fiction of pro vivo habendus est applied to all other cases: the slave being actually dead, the situation nevertheless had to be looked at, as far as possible, as if he were still alive. Consequence: the purchaser had to return his value ("praestentur ea omnia, quae praestarentur, si viveret")293 and would then receive the purchase price

However, Ulp. D. 21, 1, 21, 3, as it stands, raises a problem m that Pomponius makes his decision dependent upon scientia on the part of the vendor. But this is most probably an interpolation. On the fugitivus in fuga cf. Ulnch Manthe, "Zur Wandlung des scrvus

fugitivus", (1976)44 TR 133 sqq.; Lederle, op. at., note 275, pp. 64 sqq.; Mader. (1984) 101 ZSS 221 sqq. 2SSt Iul./Uip. D. 21, 1, 23, 7 and supra, p. 317.

289This point is emphasized particularly by Mader, (1984) 11)1 ZSS 212 sqq.

290For instance, where an earthquake or a deluge had destroyed both the estates of the purchaser and of the vendor; cf. Thielmann, Sntdi Volterra, vol. II, pp. 507 sqq.

But the sources are curiously terse, anyway, where they deal with "mortuus redhibetur"; they refer to the rule more or less in passing and arc absolutely silent as to its rationale.

Ulp. D. 21, 1, 31, 11 has been interpreted in various different ways. As in the text, most recently, Lederle, op. cit., note 275, pp. 41 sq.; Mader, (1984) 101* ZSS 227 sqq. 293 Ulp. D. 21, 1, 31, 11.

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334 The Law of Obligations

(i.e. risk on purchaser/owner). But this is largely a matter of speculation.

9.Once again: "Si vas" (Pomp. D. 19, 1, 6, 4)

(a)The development of the "Pothier" rule

While discussing the availability of the actio empti in cases of latent defects, we came across a text by Pomponius, dealing with the sale of a defective vessel:

"Si vas aliquod mihi vendideris . . . ita, ut adfirmares integrum, si id integrum non sit, etiam id, quod eo nomine perdiderim, praestabis mihi: si vero non id actum sit, ut integrum praestes, dolum malum dumtaxat praestare te debere. Labeo contra putat et illud solum observandum, ut, nisi in contrarium id actum sit, omnimodo integrum praestari debeat: et est verum."294

At first the traditional view is presented, according to which the seller was liable under the actio empti only in cases of dolus. In the end, however, Pomponius subscribes to Labeo's bold extension of the seller's liability. This text has played a very interesting role in the history of private law. Its interpretation always presented difficulties. Many have regarded the text as interpolated.295 Others accept its genuineness, but are divided as to whether Labeo/Pomponius's statement is based on a tacit guarantee,296 an implied term that the thing was not useless,297 or on a liberal perception of the requirements of good faith inherent in sale.298

Similar disputes about the meaning and importance of D. 19, 1, 6, 4 have been raging since the Middle Ages. "Scis quantum glossatores et Doctores hie sudaverint, et frustra sursum deorsum sese jactaverint", as Molinaeus vividly puts it.299 It was Molinaeus, however, who gave the whole discussion a new turn:

"Cum enim vasculariam profiteatur, sive vasa cudat, sive at aliis facta vendat, et sic hanc artem vel negotiationem exercendo, si non semper expresse, saltern semper tacite ipso facto, et ex professo affirmat vasa ad usum, ad quern prostant, vaeneunt, vel elocantur, idonea, integra esse".300

By undertaking to produce or professionally to sell objects like the one sold, producer and merchant seller ipso facto and ex professo guarantee

294D. 19, 1, 6, 4; cf. supra, p. 320.

295Cf. e.g. Franz Haymann, Die Haftung des Verkaufers Jur die Beschajfenheit der Kaufsache, vol. I (1912), pp. 101 sqq.; Werner Flume, "Zum romischen Kaufrecht", (1934) 54 ZSS 330.

296Cf. e.g. Windscheid/Kipp, § 393, n. 2.

297Cf. e.g. Honore, Studies de Zulueta, p. 144.

298Cf. e.g. Olde Kalter, op. cit., note 24, pp. 58 sqq.

299Tractatus de eo quod interest, § 49; for further details about these disputes, see § 19 (which has, however, been left out in Erasmus' edition and translation of the text (Johannesburg, n.dO).

300^ 49 (analySec] by Honore, Studies de Zulueta, pp. 147 sqq.).

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the vessels to be fit for use.301 Even if they were in ignorance, they are liable not only for quanti minoris, but for the purchaser's full interesse, consequential loss included.302 Robert Joseph Pothier, as usual, put into elegant French what Molinaeus had already said in bad Latin.303 If the vendor did not know about the defect of the article sold, he is not liable, normally, for consequential loss. But there is one exception: "c'est le cas auquel le vendeur est on ouvrier, ou un marchand qui vend des ouvrages de son art, ou du commerce dont il fait profession."304 Pothier explains this exception on the basis of the rule of imperitia culpae adnumeratur; the producer, in these instances, "par la profession de son art, spondet peritiam arris", and lack of professional skill is to be considered a form of culpa. The same applies to the merchant-seller: "Par la profession publique, qu'ilfait de son commerce," he guarantees that his articles are fit for use. This argument does not appear to be entirely convincing, for one can think of many instances where the vendor's lack of knowledge about the defect cannot really be attributed to imperitia. This may be one of the reasons why the producer-merchant seller's liability a la Pothier has not been received by either pandectist doctrine or by the BGB.305 Nor did the Roman-Dutch authors adopt it; according to them a liability for consequential damages could attach only to the venditor sciens.306 Voet alone recognized one exception, but only in the case of an artifex, not of a merchant-seller.307 Nevertheless, the "Pothier rule" (as it has come to be called) has been received in modern South African law. "[Liability for consequential damage caused by latent defect attaches to a merchant seller who was unaware of the defect", we read in the leading case oi Kroonstad Westelike Boere Ko-operatiewe Vereniging Bpk. v. Botha,308 "where he publicly professes to have attributes of skill and expert knowledge in relation to the kind of goods sold". Compared to what Pothier really says, however, this is a curiously amputated

301It follows that this rule does not apply to sales generally; not, for instance, "si quis paterfamilias non tanquam ejus professionis, sed tanquam haeres, vel alio casu dominus mobilium existentium in certa domo, in quibus quae vasa habentur, ea vendat. Cum enim nullam profiteatur horum industriam, sed inridenter, ut res indifferentes vendat, non tenetur de idoneitate, nisi quanto minoris" (§ 51).

302§ 49. If, for instance, the liquid that was poured into the vessel, leaks out, the damage arising therefrom is a foreseeable consequence of the defectiveness of the vessel, a realization of the risk which the vendor has (tacitly) assumed (§§ 49, 50).

303Cf. Dumas, as quoted in Zweigert/Kotz/Weir, p. 73.

304Pothier, Traite du contrat de vente, n. 214; cf. also Traite des obligations, n. 163.

305As far as France is concerned, cf. e.g. Mazeaud/Mazeaud, Lemons de Droil Civil, vol. Ill, 2 (3rd ed., 1968), n. 988.

Cf. e.g. H.DJ. Bodenstein, "A Few Aspects of the Actio emti and the Aedilitian Actions", (1914) 31 SALJ2O sq.

307 Commentarius ad Pandectas, Lib. XXI, Tit. I, 10; cf. further Van Warmelo, op. cit., note 98, pp. 91 sq. On what authority Voet bases this exception is not clear. The Roman texts he quotes, are not concerned with the position of an artifex; neither do the three writers to

whom he refers (Mynsinger, Faber and Mevius) provide authority for his proposition. 308 1964 (3) SA 561 (A) at 571H. For criticism, see De Wet en Yeats, p. 303. The most

recent decision in this line is Gannet Manufacturing Co. (Pty.) Ltd. v. Postaftex (Pty.) Ltd. 1981

(3) SA 216 (C) at 225F sqq.

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version of the "Pothier rule". It seems to be based on an incorrect translation of the words: ". . . ou un marchand qui vend des ouvrages . . .

du commerce dont il fait profession" by Solomon J, in Erasmus v. Russell's Executor.™9 There is obviously a significant difference between a merchant who is liable merely by virtue of selling "articles of commerce which it is his business to supply"310 and one who must have publicly professed to have attributes of skill and expert knowledge.311

(b) The English Sale of Goods Act

It might not be inapposite in this context to refer also to English law.312 § 14(1) of the Sale of Goods Act until 1973 contained the following provision:

"Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgement, and the goods are of a description which it is in the course of the seller's business to supply, there is an implied condition that the goods shall be reasonably fit for such purpose",

and § 14(2) added specifically:

"Where the goods arc bought by description from a seller who deals in goods of that description, there is an implied condition that the goods shall be of merchantable quality."

There is every reason to believe that these rules were inspired by the "Pothier rule" and are thus ultimately based on Pomp. D. 19, 1, 6, 4 also. Sir Mackenzie Chalmers, the "father" of the Sale of Goods Act, had a very high regard for Pothicr's Traite du contrat de vente: ". . . it is still", he wrote in 1894,313 "the best reasoned treatise on the Law of Sale that has seen the light of day." This was very much in tune with the general sentiments prevailing in England at that time. When the English Courts and treatise writers, in the course of the 19th century, created the modern law of contract,314 they were "engaged upon an enterprise which was new to the common law . . . but old to the civilian tradition".315 It is hardly surprising, therefore, that they borrowed heavily from that civilian tradition, and Pothier's treatises,

1119 1904 TS 365 at 374.

3111 These are the words of a correct translation by Jones J, in Young's Provision Stores (Pty.) Ltd. v. Van Reynevcld 1936 CPD 87 at 91 sq.

~" For an example of a case which would be covered by this restricted version of the Pothier rule, see Marais v. Commercial Genera! Agency Ltd. 1922 TPD 440. For a more detailed discussion of the implications, see Reinhard Zimmermann, "Der Einfluss Pothiers auf das romisch-hollandischc Rccht in Sudafnka", (1985) 102 ZSS (GA) 185 sqq.

312 For a comprehensive comparative discussion, see Bascdow, op. cit., note 250, pp. 15 sqq., 44 sqq.

Лз Reprinted, for instance, in Chalmers' Sale of Goods Act, 1893 (17th cd., 1975), p. IX. Cf. further e.g. John B. Moyle, The Contract of Sale in the Civil Law (1892), p. 205.

314Cf. e.g. Atiyah. Rise and Fall, pp. 398 sqq., 681 sqq.

315A.W.B. Simpson, "Innovation in Nineteenth Century Contract Law", (1975) 91 LQR

254.

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accessible to English lawyers in translated versions,316 became one of the most influential sources.117 As Best CJ once put it: "The authority of Pothier is as high as can be had next to the decision of a court of justice in this country."3'8

3U> A translation of [he Traite des obligations by W.D. Evans appeared first in America (Philadelphia, 1802), four years later also in England (London, 1806). The Traite du conlrat de rente was translated by L.S. Cushings in 1839, the Traite du conlrat de societe by O.D. Tudor in 1854.

317 For further details, see Reinhard Zimmermarm," Synthesis in South African Private Law: Civil Law, Common Law and Usus Hodiernus Pandectarum", (1986) 103 SALJ 283

sq.; idem (1985) 102 ZSS (GA) 176 sqq.

118 Cox v, Troy (1822) 5 В & Aid 474 at 480.

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CHAPTER 11

Locatio conductio I

I.LOCATIO CONDUCTIO IN GENERAL

1.Locare and conducere

A lets his townhouse to B, He asks his employee С to maintain the garden of his country residence. Finally, he asks D to transport some columns from the one place to the other.—It does not strike the modern lawyer as particularly obvious that these three transactions should have more in common with each other than each of them with, say, a contract of sale. Indeed, according to modern German (or South African) law, wre would be dealing with three different types of contract. В has been granted the use of a thing in return for money: A and В have concluded a (contract of) lease. С has promised to provide his services in return for money: he has entered into a contract of service (or employment). D has been assigned a specific task to be performed in return for money: we are dealing with a contract for work.

This scheme has been taken over from the pandectists.1 They referred to locatio conductio rei (letting and hiring of things), locatio conductio operarum (letting and hiring of services) and locatio conductio operis (letting and hiring of work). The Roman lawyers, on the other hand, did not draw these distinctions. They did not think in terms of three different transactions, but accommodated all of them within the framework of one single contract called locatio conductio. The parallels with emptio venditio are obvious: we are dealing with a consensual contract2 of a necessarily bilateral nature; the prestation of one of the parties has to consist in money; and the transaction is defined by what happens to the object of the contract seen from the point of view of first the one and then the other party (locare/conducere).3

1Cf., for example, Arndts. Pandekten, § 309; Dcrnburg, Pandekten, vol II, § 110; Thibaut, System, § 511. On the history of this trichotomy, see Felix Olivier-Martin, "Dcs divisions du louage en droit romain", (1936) 15 RH 463 sqq., who credits Voct (Canimcntarius ad Pandectas, Lib. XIX, Tit. II) with its invention. Most writers of the usus modernus pandectarum and of the natural-law school, however, drew a distinction only between locatio conductio rei and operac (the latter category comprising both contract of service and contract for work): Coing, pp. 456 sq. Cf. also art. 1708 code civil, art. 1568 codice civile,

§§1090 sqq., 1151 ABGB, and Windscheid/Kipp, §§ 399, 401. On the question of classification, see too Jones, Bailments, pp. 85 sqq.; Story, Bailments, §§ 368 sqq.; F.B.J. Wubbc, "Opus selon la definition de Labcon", (1982) 50 TR 250.

2Gai. Ill, 135: "Consensu fiunt obligationes in emptionibus venditionibus. locationibus conductionibus, societatibus, mandatis."

3"We are accustomed, in the common law, to use words corresponding to those of the Roman law, almost in the same promiscuous manner. Thus letting (locatio) and hiring

(conductio) are precise equivalents, used for the purpose of distinguishing the relative situation of different parties to the same contract": Story, Bailments, § 369.

338

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"Locare" means to place, place out or place at the disposal, "conducere" to carry along, to take with one.4 This, for the Romans, was the pivotal point, the core feature uniting the seemingly disparate contracts of lease, of service and for work under one and the same umbrella. The lessor places a thing at the lessee's disposal. The lessee may use it; he takes control of it and in this sense "carries it with himself". The employee places his services at the disposal of the employer, which the latter then "takes along", i.e. is in a position to make use of. And the customer (in the case of letting and hiring of work) places out a specific job, a piece of work to be done; the contractor takes over the object(s) with regard to which he has to perform that task.5

It becomes clear immediately that the Roman terminology must appear to be utterly confusing once one loses sight of these core concepts. For whilst in the contract of service (locatio conductio operarum) it is the locator who does the work (and the conductor who pays the remuneration), under a contract for work (locatio conductio operis) the conductor is bound to do the job, the locator to pay the money. Both the letting and hiring of things (locatio conductio rei) and of services often involve parties who are economically and socially unequal; but whereas in the first instance it is the conductor (lessee) who is typically in the weaker position, the same applies, in the second case, to the locator (employee). All in all, then, actiones locati are granted to a lessor, an employee and a customer, actiones conducti to the lessee, the employer and the contractor. The only key to understanding and determining this lies in the meaning of locare and conducere.

2. Three in one

If the modern trichotomy of contracts is alien to the Roman sources {neither Gaius nor D. 19, 2 separates the three basic forms of locatio conductio), this does not mean that the Romans applied the same rules to all varieties of this contract.6 It would be quite wrong

4On etymology and meaning cf. e.g. Heinnch Degenkolb, Platzrecht imd Miete (1867), pp. 133 sqq.; Kaufmann, Attromische Miete, pp. 297 sq.; Ulrich von Lubtow, "Catos leges venditioni et locationi dictae", in: Symbolae Raphael! Taubenschlag dedicalae, vol. Ill (1957), pp. 231 sqq. But see also e.g. Otto Karlowa, Romische Rechtsgesdtichte, vol. II (1901), p. 638.

5The terms "locare" and "conducere" were not always employed in a strictly literal sense, but were sometimes used "metaphorically" (Schulz, CRL, p. 543). Thus, for instance, in a contract for work the conductor often does not "carry" anything "with him" (or away): take, for instance, the contractor who has undertaken to build a house on the property of the customer. The same applies to a lease of landed property (cf. Kaufmann. Altromische Miete, pp. 237 sq.). On the terminology and the question of who could conclude a contract of locatio conductio, cf. Imrc Molnar, "Subjekte der locatio conductio", in: Studi in onore di Cesare Sanjilippo, vol. II (1982), pp. 413 sqq.

6Cf., however, e.g. Arangio-Ruiz, Istituzioni, pp. 345 sq.; Ugo Brasiello, "L'unitarieta del concetto di locazione in diruto Romano", (1927)2 K/SG529sqq.; (1928) 3 RISC 1 sqq.;

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340 The Law of Obligations

to attribute any dogmatic significance to this essentially Unitarian view.7

The Roman lawyers realized that not everything which came under the heading of locatio conductio could be treated alike, and, as usual, their approach to the individual cases brought before them was guided by pragmatic differentiation and careful analysis of typical conflicts of interest rather than by conceptual rigidity. While they themselves were quite uninterested in abstract categorization, their casuistry nevertheless provided the basis for the traditional civilian threefold classification.8 This illustrates a fundamental dilemma with which the student of Roman law is often faced. It would be quite ahistorical to superimpose systematic distinctions over the Roman sources or to approach them with modern dogmatic categories in mind. On the other hand, the Roman sources usually provide the historical foundation, the casuistic basis for these classifying and structuring efforts of the later civilians; and in order to prevent the modern lawyer from drowning in the flood of Roman case law, some sort of systematic life jacket appears to be indispensable. This must be kept in mind, while we shall, in the following pages, deal with the three main types of locatio conductio separately.4 In a way, of course, this procedure is un-Roman, because, as we have said, the Romans knew only the contract of locatio conductio. And yet, this unitarian concept was a matter of terminology and procedure rather than of practical impact and dogmatic consequences. This will become clearer if we remind ourselves of three things: that Roman law was actional law (and was thus developed under procedural auspices), that in this specific instance we are dealing with bonae fidei iudicia, and that the Roman lawyers were traditionalists rather than vigorous reformers.

3. Historical development

The early history of locatio conductio is obscured by the scarcity of sources.10 It has been plausibly argued, however, that from early on the

Schulz, CRL, pp. 542 sq.; Luigi Amirante, "Riccrche in tcma d\ locazionc", (1959) 62 BIDR 9 sqq. Contra: A.D.E. Lewis, "'The Trichotomy in Locatio Conductio", (1973) 8 Irish Juris! 164 sqq.

7 Cf. e.g. Mayer-Maly, Locatio conductio, pp. 18 sqq.; idem, "Tipicita с unita dclla 'locatio conductio'", (1959) 5 Labeo 390 sqq.; Max Kaser, (1960) 11 lura 229 sqq.; idem, RPr I, p. 563; more recently cf. e.g. Pinna Parpaglia, Vitia ex ipsa re (1983), pp. 181 sqq.

8 " . . . far from constructing a bogus classification, the civilians were responsible tor making explicit what, for the Roman jurists, was only implicit": Lewis. (1973) 8 The Irish

Jurist 164.

'' This is also how Kaser, RPr I, pp. 564 sqq. and Honsell/Mayer-Maly/Selb, §§118 sqq., deal with the matter. The alternative approach (discussion of locatio conductio in general; differentiation according to the various types of locatio conductio only in the context of individual problems) has been followed by Mayer-Maly in his book on locatio conductio. 10 There are hardly any literary sources documenting the practice of letting and hiring before the 2nd century B.C. (i.e. before the time of the comedies of Plautus and Terentius). All available archaeological evidence has been carefully scrutinized by Kaufmann, Altromische Miete, pp. 26 sqq. For the time of the XII Tables cf. Gai. IV, 28: "Lege autem introducta cst pignoris capio veluti lege XII tabularum adversus eum, qui hostiam emisset nee pretium

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