!!Экзамен зачет 2023 год / The Law of Obligations

letting and hiring of property, of services and of work must have occurred,11 albeit possibly on a relatively small scale. Such transactions were at first not enforceable per se, but the contract verbis (stipulatio) was, of course, flexible enough to accommodate them just as any other arrangement. Some time during the course of the Republic, the praetor decided to enforce a purely consensual act and to grant a iudicium locati conducti.12 Whether this first case involved a contract of lease, of services or for work, we do not know. The iudicium, in any event, contained a demonstratio which defined the facts on which the action rested, and the core feature of this definition consisted of the words "locavit" and "conduxit1'. Furthermore, the formula, which came to be incorporated into the edict, contained the ex bona fide clause. Take, for instance, what we today call locatio conductio rei:

"Quod As As № № fundum quo de agitur locavit, quidquid ob earn rem Nm N"1 A° A° dare facere oportet ex fide bona, eius iudex Nm Nm A° A° condemnato, si non paret, absolvito":

this was (probably), what the formula of the actio locati looked like;13 and the conductor (lessee) could invoke the corresponding actio conducti:

"Quod As As de № № fundum quo de agitur conduxerit, quidquid ob earn rem Nm Nm A° A° dare facere oportet ex fide bona, eius iudex Nm Nm A° A° condemnato, si non paret, absolvito."

A slight change in the demonstratio was all that was necessary to adapt the formula to suit a contract of services: "Quod As As N° № se operasque suas locavit . . .", "Quod As As de № № operas eius conduxit . . .", and the actiones locati and conducti were applicable to this situation as well. Finally, the formula could be employed to suit a locatio conductio operis, too: "Quod As As № № (e.g.:) columnas transportandas locavit . . .", "Quod As As de № № columnas transportandas conduxit. . . " was how the parties would have defined the facts on which they based their action. A contract of locatio conductio was thus actionable, no matter whether it involved res, operae or opus; and in a legal system developed under procedural

redderet; item adversus eum, qui mercedem non redderet pro eo iumento, quod quis ideo locasset, ut inde pecuniam acceptam in dapem, id est in sacrificium, impenderet." A small farmer is unable to provide the prescribed sacrifices for the gods. He has to hire out his beasts of burden in order to raise the necessary money. If the hirer does not pay the remuneration, the farmer/lessor may resort to self-heip, and distrain. Gaius' report relates to a time when locatio conductio was very much an extra-legal phenomenon. For further details, see Kaufmann, Altromische Miete, pp. 35 sqq. On the early history of locatio conductio, see further Kaser, RPr I, pp. 564 sq.

1 Kaufmann, Altromische Miete, passim. Hardly anything is known about the (legal) shape and structure of these transactions.

12 Cf. e.g. Kaufmann, Altromische Miete, pp. 344 sqq. More particularly, contrary to the opinion of many, locatio conductio did not originate as contract re (cf. the discussion by Mayer-Maly, Locatio conductio, pp. 81 sqq.).

" Lenel, EP, pp. 229 sq. For detailed speculations on the structure of the formula, see Kaufmann, Altromische Miete, pp. 349 sqq.

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auspices ("ubi remedium, ibi ius") this is obviously of prime importance. Legal protection was available to lessors and lessees, to employers and employees, to customers and contractors; the carving out of the rules of substantive law was cura posterior and could be conveniently attended to within the wide range of bona fides. After all, the judge was instructed to decide what the defendant had to do or to give "ex bona fide", and that provided him with the necessary discretion to develop apposite distinctions and to make, for instance, the standard of liability dependent upon the individual type of Iocatio conductio which he happened to be dealing with. These distinctions, however, were never conceptualized or categorized, the reason being simply that it was not necessary to do so, from a procedural point of view. Thus, the Romans always contented themselves with Iocatio conductio as a residual category for all types of bilateral agreements

except sale, where the prestation of one of the parties had 14 to be in

money.

II. THE SOCIAL AND ECONOMIC FRAMEWORK OF LEASE

1. The quest for security of tenure

Lease, in modern law, is hardly less important than sale. More particularly, the lease of residential space is of great social and economic importance. Not everybody can afford to (or wants to) own his own home. But even if a person does not own it, his home is the centre of his social existence. He becomes attached to it and does not want to lose it. Thus, he has a special interest in security of tenure. If the landlord were totally free to terminate the lease at any time and for any reason, he would be able to cause a disproportionate amount of hardship to the tenant and his family. Furthermore, sometimes the market does not function properly. In Germany, for instance, the two world wars caused a dramatic housing shortage. By the end of the Second World

14 Watson, Evolution, p. 16. Originally there seems to have been no distinction between selling and buying and letting and hiring. This would account for the promiscuous use of sale and hire terminology in early sources and is particularly plausible for the time before the introduction of money. Both "sale" and "letting and hiring" were, at that stage, exchange transactions: merchandise for merchandise in the one instance, merchandise for the letting of a thing or services in the others. The common denominator was that both parties delivered and received something. The fact that such transfer in the one case was intended only for a certain period was a more refined consideration which became important only gradually. As a consequence, sale was carved out as a transaction with a characteristic and homogeneous structure which was distinctly different from all the other types of bilateral agreement. A iudicium empti venditi, and with it a technical sale terminology, was developed. Thus, a distinction was drawn between sale and all the fairly disparate and heterogeneous exchange deals that remained of the old uniform category and which came to be referred to as Iocatio conductio. On all this, see especially Kaufmann, Altrontische Miele, pp. 303 sqq, also (pp. 309 sqq.) on Cato's (De agri cullura CLVIII, 149, 1) "pabulum hibernum venire" (pastoral lease or sale of the fodder growing on the pasture ground?).

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War many houses had been destroyed or were uninhabitable; at the same time, millions of refugees and expellees from the East were in search of accommodation. Under such circumstances prospective tenants have an interest in the existing residential space being controlled and managed in an efficient manner; actual tenants who are already living in rented housing need protection against their landlords who might be tempted to exploit the situation and to demand exorbitant rents. Thus, in the course of time, a whole body of law was developed, amending, adapting and superseding the law of lease as it had once been laid down in the BGB.15 Poorly drafted and scattered over several enactments,16 this body of law rests on the cornerstones of notice protection and rent control. It introduces a great deal of ius cogens into the landlord-tenant relationship and seems to have a greater affinity to public law than to private law. The contract of lease, as it exists in modern German law, is no longer characterized so much by the private autonomy of the contracting parties; it has been converted into something of a publicly regulated, social owner-and-user relationship.17 In Germany these changes partly reflect a balancing of interests determined by the "Constitution". For whilst the Basic Law of 194918 contains a guarantee both of private property19 and of private autonomy,20 it also acknowledges that property imposes duties and that its use must serve the public weal.21 Property rights are limited in the social interest and freedom of contract must not become an instrument of domination, but has a social function too. On the other hand, the question may well be asked whether all these protective regulations are (still) necessary in order to achieve socially acceptable results.22 Government aid for residential building over the past decades (far exceeding a hundred thousand million DM) and tax incentives have led to the completion of between 500 000 and 700 000 homes a year. Thus, today the supply of accommodation appears to be entirely satisfactory, both from a quantitative and a qualitative point of view: in

For a detailed commentary cf. e.g. Volker Emmerich, Jiirgen Sonnenschein, Mietrecht (2nd ed., 1984); Wolfgang Schmidt-Futterer, Hubert Blank, Wohnraitmschutzgesetze (5th ed., 1984).

For an attempt to remedy this state of affairs and to consolidate the law, sec Jiirgen Sonnenschein, Die Bereitiigung des Mietrechts im Biirgerlkheti Gesetzbuch (1985).

17Franz Wieacker, Industriegesellschaft itnd Privatrechtsordnung (1974), p. 27.

18The title "Basic law" is intended to convey the provisional nature of the (West) German "constitution". After 40 years of sepcrate development in the Federal Republic and the "German Democratic Republic" one can, however, hardly maintain any longer that the "Basic Law" is different in character (i.e. inferior) from a "proper" constitution. Cf. for example, Otto Kimminich, 1973 Deutsche Verwahurigsblatter 657 sqq. (659); Michael Kirn,

1974 Zeitschrift fur Rechtspolitik 84 sqq. (86); Schmidt-Bleibtreu/Klein, Komtnentar zum Grundgesetz fur die Btmdesrepublik Deutschland (6th ed., 1983), Einl. n. 45.

^ Art. 1 4 I G G .

"" Art. 2 1 GG (as interpreted by the German Constitutional Supreme Court).

21Art. 14IIGG .

22Cf. particularly Hcinrich Honscll, "Privatautonomie und Wohnungsmiete", (1986) 186

Archiv fiir die civilistische Praxis 115 sqq.

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1984, 26,78 million homes were available for a total of 25,33 million households (as opposed to 9,4 million homes for 15,3 million households in 1950);23 an average of more than 30 m2 of living accommodation is available per person; only 13 % of the net income of a household, on average, has to be spent on rent. In view of this, some deregulation and a return to the laws of supply and demand would hardly appear to be unjustifiable. This would imply a return to the ius dispositivum of the BGB.24 In any event, however, it is clear that the law no longer has to concern itself so much with the economic interest of the (essentially competitive) tenant but that security of tenure aims at protecting the tenant against the financial and (especially) the psychological consequences of a move of home.25

Other modern industrial societies, of course, have had to cope in similar ways with the "quest for security of tenure". But whereas the individually inclined French seem to be on the way back to the regulatory mechanisms of market forces,26 the English legislator

"gives a distinctly higher preference to the interest of tenants in remaining in their homes. . . . The middle class ideal of owning your own home and garden has in fact so infused English thinking that those who cannot afford to buy their homes are given the next best things; security for one, two or three lives."27

In comparison with its modern descendant, to which copious Acts of Parliament, voluminous court decisions and piles of literature have been devoted, the Roman lease may appear to be a fairly poor thing.28 No particular concern for security of tenure is apparent from the pages of the Digest, none for substantive fairness of rent; hardly any protective legislative intervention is recorded, and only a comparatively modest amount of case law dealing with problems of lease can be found in D. 19, 2. Matters were left largely to the agreement of the parties.29 The institution of giving notice was unknown. Rooms were either let for a certain time or, if no such limit had been set, the contract could entirely unceremoniously be terminated at any time by either party.

2. Living conditions in Rome

Does this mean that the letting and renting of accommodation was a rare and socially unimportant phenomenon in Rome that did not throw

23 For these figures cf. Honsell, (1986) 186 Archiv fur die civilistische Praxis 124 sqq.

" On a more general level, see Kurt H. Biedenkopf, "Die Wiederentdcckung des

Privatrechts", in: Europdisches Rechisdenken in Geschichte und Geqenwart, Festschrift fur Helmut Going, vol. II (1982), pp. 21 sqq.

-1 Tony Honorc, The Quest for Security: Employees, Tenants, Wives (1982), pp. 34 sqq.

26Honorc, op. cit., note 25, "pp. 37 sqq. Today cf. Act 82—526, Recueil Dalloz 1982, 284 (22.6.1982).

27Honore, op. cit-, note 25, pp. 58 sq.

28Cf. Schulz, CRL, p. 544.

29"Roman jurisprudence displays, in urban leasehold as elsewhere, an emphasis on enforcement of the agreed-upon terms of contracts. Such emphasis can be defended as support for the security of the market-place": Frier, Landlords and Tenants, p. 186.

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up problems? Quite the contrary is true. All too easily are we tempted, today, to visualize living conditions in Rome in terms of what we can glean from the excavation of leisurely country towns like Pompeii or Herculaneum. We think of wealthy Roman senators residing in private mansions of the type of a Villa dei Misteri or a Casa del Fauno.30 In some instances we may be correct. But space in Rome was limited. It is estimated that the Imperial urbs did not extend beyond an area of eight square miles, yet had to accommodate about 1 200 000 inhabitants.31 Owing to the lack of efficient transport systems, the suburban space could hardly be used for the housing of those who had to transact business in town. Only the wealthiest, under these circumstances, could afford to own their own home (domus). Most people had to live in insulae, imposing and often monumental blocks of flats which amazed the ancient world.32 In the more luxurious of them, the ground floor was either let as a whole to one tenant or subdivided into comfortable multiple-room apartment units.33 This ground-floor tenant, however, had to be prepared to pay a very substantial annual rent. Marcus Caelius Rufus, for instance, a contemporary and student of Cicero, is said to have paid 30 000 sesterces.34 According to Carcopino, even "the humblest tenant [at that time] had to pay a rent of 2 000 sesterces a year".35 And he did not get much comfort for that price, either: the insulae in which he lived were ill supplied with water, light and fireplaces. But for the ground floor, they lacked domestic

quantitative studie s on the size of citie s and of city pop ulation in the Ro man E mpire , see D unca n-Jone s, pp. 259 sqq.

~- For this and what follows cf. Carcopino, pp. 33 sqq. According to the Rcgionarics, the city had 1 797 domus as oppose d to 46 602 insulae. T he most characte ristic fe ature of these

by Livius, A b urbe condita, Lib. X XI, LXII) of the ( appare ntly) m ad ox which "scale d the stairs of a riverside insula to fling itself into the void from the third store y amid the horrified cries of the onlooke rs" ( Carcopino, pp. 35 sqq.): a bad ome n inde ed! Au gustus impose d a limit of 2 0 m on the he i ght of p rivate ho use s .

33 It is to these apartment units (as described in Ulp. D. 9, 3, 5, 2) that Frier, Landlords and Te n a n ts , p p . 5 s q q . w i s he s t o c o n f i ne t he u s e o f t he te r m "c e n a c ul u m " ( a s o p p o se d t o "dive rs oria " or "m e ritoria ", the squ alid te ne me nt house s f or the po or) .

34 Cice ro, Pro M. Caelio oralio, VII —17.

" Carcopino, p. 56. Juvenal, Saiura, III, 223 sqq., remarks that the annual rent tor a miserable flat in town would have bought splendid estates in a medium-sized country town. The figure of 2 000 sesterces is probably exaggerated. Our legal and extra-legal texts deal with upper-class leases, not with "the hordes of depressed lower class tenants who constituted the vast majority of the Roman tenantry" (Frier, Landlords and Tenants, p. 39). The latter, according to Frier (p. 51), paid rent "on a short-term basis, perhaps most commonly daily". Payment at yearly intervals (as a rule: postnumerando!) in all probability applied only to upper-class tenants. English law seems to offer a parallel in so far as the law of lease has traditionally been reserved for relationships with some sort of permanence (as opposed to a mere licence).

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drainage. They were usually dangerous to live in, overcrowded, squalid and noisy.

"Almost everywhere, the higher you went in a building, the more breathless became the overcrowding, the more sordid the promiscuity. . . . Whatever the disposition of the ground floor, the upper storeys were gradually swamped by the mob: entire families were herded together in them; dust, rubbish, and filth accumulated; and . . .

bugs ran riot."36

The insulae were normally exploited by a system of letting and subletting.37 They were let to a principal lessee, who in turn sublet the cenacula (or meritoria) of the upper storeys and thus relieved the owner of all the troubles involved in the exploitation of his property. However, so

"intolerable was the burden of rent that the sub-tenants of the first lessee almost invariably had to sub-let in their turn every room in their cenaculum which they could possibly spare".38

In other words: the free play of forces on the housing market can hardly be said to have produced socially acceptable conditions. If anything, there was a greater need to regulate the relationship between lessor and lessee in Rome than there is today. The extremes of wealth and poverty were much more marked; so was, of course, the inequality of

3f' Carcopino, loc. cit.

37 For details Frier, Landlords and Tenants, pp. 29 sqq.; Guillaume Cardascia, "Sur une fonction de la sous-location en droit romain", in: Studi in onore di Arnaldo Biscardi, vol. II (1982), pp. 365 sqq. The same applied in the case of warehouses (horrea): the owner of a horreum usually let the whole warehouse to a principal tenant (the horrcarius) who then in turn let out the storage space to the individual customers (cf. e.g. Andreas Wacke, "Rcchtsfrage der romischen Lagerhausvcrmictung", (1980) 26 Labeo 304 sqq.; differently

Claude Alzon, ProbUmes relatifs a la location des entrepots en droit romain (1965), according to whom the individual customer always contracted directly with the owner; the horrearius was merely a subordinate, something like a foreman of the staff of the horrea, acting in the employ of the owner. This view has however generally been rejected: cf. e.g. J.A.C. Thomas, "Return to 'Horrea' " (1966) 13 RIDA 357 sqq.).

It is obvious that the contract between owner and horrcarius was locatio conductio rei. But what was the relationship between horrearius and his customers (the "depositors")? It cannot have been depositum wherever—as was usually the case—the horrearius received a merces. But was it locatio conductio operarum (Joachim Rosenthal, "Custodia und Aktivlegitimation zur Actio furti", (1951) 68 ZSS 231 sqq.) or locatio conductio operis (Felix Wubbe, "Zur Haftung des Horrcarius", (1959) 76 ZSS 511 sqq.) or locatio conductio rei (prevailing opinion: cf. e.g. Thomas, (1966) 13 RIDA 362; Kascr, RPrl, p. 565; Wacke, (1980) 26 Labeo 309) or a combined locatio rei and operis faciendi (Alzon, pp. 201 sqq.)? The horrearius was an independent contractor who employed his own staff; thus he was probably not merely an employee of the "depositors" (thus: no locatio conductio operarum). In all our sources, the horrearius is referred to as locator, by customers as conductores. The relationship must therefore have been one of locatio conductio rei, despite the fact that the horrearius (unlike "normal" lessors) was liable for custodia (Paul. D. 19, 2, 55 pr.; Lab. D. 19, 2, 60, 6 and 9; C. 4, 65, 1 (Ant.); С 4, 65, 4 (Alex.); Wubbe, (1959) 76 ZSS 508 sqq.; Carlo Augusto Cannata, "Su alcuni problemi relativi alia 'locatio horrei' nel diritto romano classico", (1964) 30 SDHI 244 sqq.; Alzon, pp. 41 sqq., and many others). The horrearius is providing a "safe-keeping place", i.e. he is as locator under an additional contractual duty of custodiam praestare. These (modern) disputes about the horrea contract are, incidentally, another confirmation of the fact that the Romans did not employ the scheme of three different types of locatio conductio (Thomas, (1966) 13 RIDA 362).

3H Carcopino, loc. cit.

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bargaining power as far as the scramble for urban accommodation was concerned.

3. Some typical problems

Apart from that, the tenant seems to have been surrounded by potential sources of disaster. A mere glance over the Digest reveals that his life cannot have been unexciting. Lofty as they were, the insulae were far too lightly built. Builders tried to economize. Thus it could happen that the piling up of earth against the wall of a house by a neighbour had disastrous effects: the earth was soaked by continual rain storms, and from the seepage of moisture the wall became wet and broke down.39 The collapse of houses (ruina) is frequently mentioned, i.a. as one of the typical incidents falling outside the ambit of custodia liability.40 Alfenus (D. 19, 2, 30 pr.) discusses the case of an owner of an insula who had leased it, for a sum of 30, to a principal tenant, who in turn sublet the various cenacula for a total of 40. Now the owner demolishes the building, allegedly in order to prevent its collapse. Can the principal tenant sue him for a refund of his rent (30) or also for what he has lost on account of the fact that he could not extract any profits from the subtenants? In D. 19, 2, 27, 1 we meet a tenant who decides to move out "timoris causa".41 Does he have to pay the full amount of the rent agreed upon? Answer: not if there were grounds for his fears, even though a danger might in fact not have existed. What happens if a tenant has paid his rent for one year in advance and then, before the lapse of that year, the building collapses or burns down? He may reclaim the money for the remaining time,42 not, interestingly, with a condictio,43 but with the actio conducti.

Fires were, of course, the other great disaster which all inhabitants of an insula constantly dreaded.44 Thus we find lessors insisting on the incorporation of special clauses into the contract: that the lessee may not bring easily inflammable substances (like hay) into his lodgings45 or even that he may not have a fire ("ignem ne habeto").46 In case of

wIav. D. 19, 2, 57.

4(1 Cf. e.g. supra, p. 192.

44 As to the justification of such fear, cf., for example, Ulp. D. 1, 15, 2 ("pluribus uno die incendiis exortis"). Cf. further e.g. Juvenal, Satura, III, 197 sqq. Aulus Gcllius relates the story of a group of friends walking up the Cispian hill when they see a big urban insula on fire. "Magni reditus urbanorum pracdiorum", says one of them, "sed pcricula sunt longe maxima, si quid autem possit remedii fore, ut ne tam adsidue domus Romae arderent, venum hercle dedissem res rusticas et urbicas cmissem." It was mainly the risk of fire that made it more attractive for wealthy Romans to invest in farmland rather than in urban properties. For details, see Frier, Landlords and Tenants, pp. 21 sqq.

4* l p . D. 19, 2, 11, 4. Ulp. D. 19, 2, 11, 1.

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contravention, the lawyers were prepared to grant the actio locati to the lessor, irrespective of whether a third party had in actual fact set the hay on fire or whether—in the second example—the house had not burnt down on account of the lessee's fire but due to casus fortuitus.47

All these texts are suggestive in their implications. But they also show that the Roman lawyers dealt with the particulars of lease of residential space in very much the same manner as they dealt with any other problem brought before them. They appear to have been insensitive to the social dimensions of this type of contract,48 and certainly they did not make any special effort to relieve the lot of tenants. Generally speaking, therefore, the Roman law of lease was landlord-friendly and it appears to have been entirely out of tune, at least by modern standards, with the social and economic problems of an ever-growing urban tenantry.

4. The Roman lawyers and the law of lease

The reason for this should not be sought in any social bias on the part of the lawyers. It is true that they may not have been fully aware of the acuteness of the problems. As respectable members of the class of clarissimi et amplissimi viri49 they were unlikely to reside (or even to know anybody who resided) in the upper storeys of the insula of Felicula.50 But that does not mean that they tailored the law to suit the needs of their fellow capitalists and to make the exploitation of slums a particularly profitable enterprise.51 Nor, indeed, was the Roman law of lease totally detached from the social framework within which it was supposed to operate. By and large, the rules that were developed reflect a balancing of competing interests, based on the realities of the Roman rental market and, from a public policy perspective, apt to serve as a satisfactory instrument of social control.52 The whole problem, however, lies in the fact that the jurists created the Roman lease law with only one segment of the market in mind: it was meant, primarily, to resolve the problems arising from upper-class housing. It was not designed to oppress or to relieve the lot of the poor: they simply did not feature.53 Roman law was actional law and where there was no

47The idea of versari in re illicita; cf. supra, pp. 197, 209.

48Cf. generally Schulz, Principles, p. 24 (s. v. "Isolation").

49Cicero, De oratore, 1, XLV—45.

50An apartment block of extraordinary di mensions, that seems to have been famous throughout the ancient world (cf. Tertullius, Adversus Valentinianos, VII, 3). On the status and social background of the Romanjurists during the various periods of Roman law, see especially Fritz Schulz, History of Roman Legal Science, passim; Wolfgang Kunkel, Herkunft und soziale Stellwny der romischen juristen (2nd ed., 1967), passim.

*! Cf. e.g. Schulz, CRL, p. 545.

32For all details, see Frier, Landlords and Tenants, pp. 21 sqq. ("The Social Institutions of the Roman Rental Market"), pp. 174 sqq. ("Recognition of Interests in Roman Lease Law"), pp. 196 sqq. ("Roman Jurisprudence as an Instrument of Social Control").

53This is the main thesis of Frier's book on the Roman law of urban leasehold, which is now authoritative.

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litigation, no law could be developed. Thus, the procedural and social factors determining the incidence of litigiousness in Roman society in turn determined both the content and the structure of the private law. Lower-class tenants did not have the means to approach a jurisconsultus for his opinion and a whole variety of considerations effectively deterred them from making use of thejudicial apparatus.54 Usually the reward they might have been able to obtain by bringing a lawsuit did not warrant the amount of time, expense and trouble required. Moreover, members of the lower classes

"were probably ignorant of the law, and they were also the victims of a social structure that was not only exaggeratedly pyramidal in its distribution of wealth and influence, but also bound by stark social conventions. . . . Simultaneously, however, their poverty effectively protected these same lower classes against private law suits by others. Much of Roman private law may therefore have remained confined for all practical purposes to the upper social tiers."ss

Thus, our legal sources, like the literary, usually refer to the world of the Roman upper class. This is true even in the case of lease, for, as Bruce W. Frier has demonstrated, the inquilini of the jurists were not typically lower-class tenants.56 Comfortable cenacula or whole apart- ment-house complexes were available for those who could afford them,57 and we even know of members of the senatorial rank who were attracted by the advantages of renting.58 The Roman lawyers contented themselves with finding solutions to the problems brought before them, and that, in this instance, led to the creation of what has been termed a "law of upper-class-leasehold".59 Arguably, it is in any event only this sector of the rental market that can be adequately regulated by means of private law. Even today, as we have seen, the task of policing the market of urban housing in its entirety leads us into the area of administrative and legislative intervention and, more generally, into the field of public law.60 The Roman lawyers worked within the

54 For details, see Frier, Landlords and Tenants, pp. 48 sqq.

55 Frier, Landlords and Tenants, pp. 50 sq. Cf., on a more gene ral level, also D avid D aube,

Ro man La w, pp. 71 sqq. ( ". . . the source s, the le gal one s in particular, conce ntrate on the

haves; it is they who occupy the centre of the stage. . . . The have-nots are invisible: die im

Dunkeln sieht man nicht").

56 Landlords and Tenants, pp. 40 sqq.; cf. also p. 52: "The inquilini of slum te neme nts find

no place in juristic decisions on leasehold, despite their numerical preponderance among urban tenants."

57T he archae ologic al e vide nce in Ostia and Rome is discusse d by Frie r, Lan dlo rd s and Tenants, pp. 3 sqq.

58Sue tonius ( D e v ita Ca e sa rum , T ibe rius, X X X V , 4) , for instan ce , t e lls the stor y of a

senator who was stripped of his rank by Tiberius, because he used to enter his urban leases only in the course of July, remaining, until then, on his country estates. In this way, he tried to take advantage of the sharp drop in (upper-class) rents which occurred annually after the 1st July, the day which traditionally marked the start of the rental year. .

5 Frier, Landlords and Tenants, p. 52.

60 Cf. supra, p. 343. If in many Western legal systems this applies to the whole of the law of lease, modern South African law offers an even closer parallel to the situation in Roman law: the law of lease (locatio conductio rei) in its pure and proper sense applies, by and large,

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framework of the existing social and procedural structures. Problems resulting from unequal bargaining power fell outside their sphere of competence and experience—as did social reform or social engineering in general. Hence the specific structure of the Roman law of lease: the characteristic lack of control over the formation and content of the contract and its focus on the allocation of (objectively existing) risks and on occurrences producing liabilities under the contract.

5. Legal rules and extra-legal restrictions

At this stage one further point should perhaps be mentioned which accounts, more generally, for the fact that there was so little law (comparatively speaking) relating to locatio conductio of whatever type. Roman law was originally based on status relationships; it concerned itself with the family unit rather than with the individual. There was a movement, as Sir Henry Maine has put it, from Status to Contract.61 A characteristic feature of Roman law was that it tended to interfere with the internal aspects of these status relationships as little as possible; pietas, fides, reverentia and the mores maiorum were largely relied upon as entirely satisfactory regulatory mechanisms:

"[T]he need of the Roman for liberty demands restraint in the matter of the creation and recognition of legal principles. He demands a wide space free of legal rules because of the number and power of extra-legal restrictions. The Romans were enmeshed in a web of such restrictions, the intricacy and strength of which can hardly be conceived by the isolated beings of modern times."62

Thus, for instance, contractual relationships between a paterfamilias and his sons in power or his slaves did not exist; and it is immediately obvious that where the need for skilled labour was largely satisfied by a slave economy, locatio conductio in its labour-law variant had to be of much less significance than it is today. Particularly important, in our context, is the patronatus, a comprehensive power-relationship (involving, for instance, the ius vitae necisque), mitigated only by pietas, fides and censorian supervision, which existed between the former master and his freedman, but which could also be created by way of deditio or applicatio. Thus, many peasants, artisans and workers were technically free, but in fact their situation was half-servile. They worked as clientes for their patrons, who in turn

only to upper-class housing. It is to this segment of the law and of society that books such as those by Kerr and Cooper (The South African Law of Landlord and Tenant (1973)) refer. A totally different body of (administrative) law governs the residential rights of urban blacks. Cf, for an overview, W.H.B. Dean, "The Legal Regime Governing Urban Africans in South Africa—An Administrative Law Perspective", (1984) Ada Juridka 105 sqq.

6' Ancient Law, p. 100.

62 Schulz, Principles, p. 21; cf. also Hans Kloesel, "Libertas", in: Hans Oppermann (ed.),

Romische Wertbegriffe (1983), pp. 120 sqq.

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