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provided them with accommodation, protection in case of need, etc.63 Clientship created reciprocal duties, which were, however, based on fides rather than on law. Thus it involved a complex net of social relations, relations which would have been classified, in legal terminology, as contract of lease, contract of services and contract for work. Of course, there was no need for such distinctions yet. As a matter which fell outside the ambit of the law, everything remained jumbled up; and this may be one of the historical reasons for the hybrid nature of locatio conductio once clientship disintegrated and once the praetor started to "legalize" the relationship and to grant reciprocal actions.64

III.LOCATIO CONDUCTIO REI

1.The nature of lease

Locatio conductio rei, then, was a bilateral consensual contract which gave rise to two iudicia bonae fidei, the actiones locati and conducti. It involved the letting of a thing, either for use or for use and enjoyment of the fruits (res locata or fruenda locata)/15 Which of these two alternatives applied in an individual case depended on the nature of the thing and on the agreement between the parties. In any case, however, the arrangement was classified as locatio conductio (rei). Modern civilian legal systems have used this distinction to further refine the typology of contracts. They normally deal with the contract of hire or lease ("By a contract of lease the lessor is bound to give to the lessee the use of the leased thing . . . " (Miete)ee) as opposed to what one could call, for want of a precise English terminus technicus, usufructuary lease ("By a contract of usufructuary lease the lessor is bound to give the lessee . . . the use of the object leased and the enjoyment of its fruits, insofar as they can be considered as proceeds under the rules of normal management" (Pacht)).67

2. The objects of lease

Both movables and immovables could be the object of locatio conductio rei;68 thus, in our texts we find, for instance, the hire of

63 Cf. e.g. Berger, ED, p. 391; Kaser, RPr I, pp. 1!8 sq. More specifically on client-coloni, cf. most recently P. W. de Neeve, Colomis. Private Farm-Tenancy in Roman Italy During the Republic and the Early Priucipate (1984), pp. 187 sqq.

64Kaser, RPr I, pp. 564 sq.; but see Kaufmann, Altromische Miete, pp. 320 sqq.

65Сf. e. g. Afr. D. 19, 2, 35 pr.; Gai. D. 19, 2, 25. On what frui ent ailed (fructus

percipere), see P.W. de Neeve, "Rcmissio Mcrcedis", (1983) 100 ZSS 303. 66 § 535 BGB.

f'7 § 581 I BGB. On the specific structure of the usufructuary lease ("Pacht") in Roman law cf. recently Pinna Parpaglia, op. cit.. note 7, p. 27 and passim; Wolfgang Ernst, "Das

Recently, the thesis has been advanced that the object of locatio conductio (rei) was not a res

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slaves69 and animals,70 of barns and stores (horrea),71 as well as the lease of residential accommodation and of agricultural land, the latter usually in the form of "usufructuary lease", i.e. the lessee having both ius utendi and ius fruendi. The agricultural lease, of course, was often as problematic and potentially explosive from a social and an economic point of view as the letting and hiring of urban accommodation.

During the first two centuries A.D. a process of concentration of landed property took place.72 "Latifundia perdidere Italiam" warned Plinius (Secundus),73 whose own nephew, however, owned big estates scattered over the whole of Italy. Seneca, who seems to have owned a private fortune to the value of 300 million sesterces, became one of the greatest landowners of his time. Agricultural investment74 yielded an annual return of around 5-6 % and was much more popular than investment in urban properties. Most of the landed aristocracy, however, preferred to reside in town and also found it inconvenient to run their estates, from a distance, by using slaves.75 Strict discipline and control was necessary, and in addition, the owner had to carry the risk of crop failures and sluggish demand. Hence it became more and more common for the landed proprietors to leave the management and cultivation of their estates to free farmers and smallholders (coloni).76 Their lot was generally a sorry one, for the economic conditions during the Imperial age were not favourable to the agricultural community.77

but an activity relating to this res; Pinna Parpaglia, Vitia ex ipsa re (1983), e.g. pp. 138, 145; cf. also Ernst, (1988) 105 ZSS 590 sq.; Frier, Landlord and Tenant, p. 215 ("To some extent

. . . urban leasehold might better be thought of as the exchange of money for certain services from the landlord, and not just for a place (res)"); but see Theo Mayer-Maty, (1983) 34 lura 155.

69 Gai. Ill, 146; cf. supra, p. 236.

11 Cf. e.g. Alf. D. 19, 2, 30, 2 and Sibylle von Bolla, Untcrsuchungen zu Tiermiete und Viehpacht itn Altemm (1940).

71Lab. D. 19, 2, 60, 6; 9; Paul. D. 19, 2, 55 pr.; Alzon, loc. cit.; Cannata, (1964) 30 SDHI 235 sqq.; Thomas, (1966) 13 RIDA 353 sqq.; Wackc, (1980) 26 Labeo 299 sqq.

72Cf. e.g. Duncan-Jones, pp. 323 sqq.; De Martino, pp. 268 sqq.; most recently De Nceve, Colonus, pp. 217 sqq.

73Historia mturalis, Lib. XVIII, 6, 35.

74Duncan-Jones, pp. 33 sqq.; Moses I. Finley, The Ancient Economy (1975), pp. 95 sqq. On the size and cost of farms in the late Republic cf. also Frier, Roman jurists, pp. 11 sq.

71Cf., for example, De Martino, pp. 314 sqq.

lk "Colonus" is related to "cotere"; the term indicates that the conductor was a farmer

who was duty-bound to cultivate the land (as opposed to the "rather slangy word" (Frier, Landlords and Tenants, p. 59) "inquilinus" for the urban tenant). Originally, it did not necessarily refer to a small tenant; nor was it a terminus technicus for tenants of plots belonging to large estates. It was only in the period after Diocletian that what has become known as the "eolonate" developed, the term "coloni" then referring to poor people of low social rank who were bound to their land and found themselves in a quasi-servile condition of dependency. On the term "colonus" and on the rise of what he prefers to call farmtenancy in Italy in the course of the 1st century B.C., see De Necvc, Catenas, pp. 21, 31 sqq., 119 sqq. On the eolonate of the later antiquity the literature abounds; cf. Kaser, RPr II, pp. 142 sqq.

As to the crisis in Italian agriculture, sec mainly M. Rostovtzeff, The Social and Economic History of the Roman Empire (2nd ed., 1957), e.g. 502 sqq. But see C.R. Whittaker, "Agri deserti", in M.I. Finley (ed.), Studies in Roman Property (1976), pp. 137 sqq.

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Most tenants found it very difficult, if not impossible, to draw the kind of profit from the soil which they needed to be able to pay their rent and to maintain their family. Lamentations of poor coloni abound; very often they ran into debts vis-a-vis their lessors, which further increased their dependence and made them even more susceptible to exploitation. Their social and economic position gradually deteriorated,78 so that it does not seem to have been a rare phenomenon to see coloni in their desperation run away in search of better soil or join a gang of brigands. Again, the law took very little account of these harsh realities of life. Whether or not the lessor was owner of the object leased did not affect the validity of the contract of locatio conductio. Subletting was possible™ and indeed widely practised.80 Thus, it could happen that a person—be it by mistake or on purpose—hired a slave or rented a house which actually belonged to him. Such a conductio rei suac was, as a rule, invalid;81 and if the lessee became owner of the res during the currency of the locatio conductio, the contract came to an end.82 We find this principle suprisingly often affirmed in our sources and it may be inferred that locationes rei suae were by no means rare occurrences, particularly in post-classical times.83 Also, unlike the emptio rei suae, the hiring of one's own thing was not a logical impossibility and the invalidity of the transaction was therefore less obvious. A number of exceptions existed and it appears, more particularly, that where the locator had a (real) right in the thing as against the owner, the latter was able to undertake a valid hiring of this thing.84

3.Merces locationis

(a)Merces uera et certa

The second essential element on which agreement had to be reached before a contract of locatio conductio could be said to have come into existence was the rent {merces locationis): ". . . nam ut emptio et venditio ita contrahitur, si de pretio convenerit, sic et locatio et conductio contrahi intellegitur, si de mercede convenerit.""5 If no

7H For post-classical times, sec Kaser, RPr II, pp. 401 sq.

Cf. e.g. C. 4, 65, 6: "Nemo prohibcrur rem quam conduxit fruendam alii locarc, si nihil aliud convenit"; Molnar, Studi Sanfilippo, vol. II, pp. 420. Cf. today also § 10У8 ABGB and art. 1573 codice civile. A different approach has been adopted by the PrALR (§ 309 I 21) and the BGB (§ 549 I, 1: "A lessee is not entitled, without the permission of the lessor, to transfer to a third party the use of the leased thing, particularly to sublet the thing").

811 Cf, for example, Mayer-Maly, Locatio conductio, pp. 27 sqq; Cardascia, Studi Biscardi, vol. II, pp. 365 sqq. The right to sublease was presumed unless specifically excluded: cf.

Frier, Landlords and Tenants, p. 62.

8[ Ulp. D. 50, 17, 45: "Neque pignus nequc depositum neque precarium neque emptio nequc locatio rei suae consistere potest"; Iul. D. 16, 3, 15.

* Ulp. D. 19, 2, 9, 6.

ю Cf., in this context, the interesting hypothesis by Mayer-Maly, Locatio conductio, p. 118.

H4 For details, see J.A.C. Thomas, "Conductio rei suae". (1971) 2 Index 283 sqq. H5 Gai. D. 19, 2, 2 pr.

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remuneration for the letting had been agreed upon, the contract could be commodatum, depositum or mandatum, but it could not be locatio conductio. The merces locationis was subject to very much the same rules as pretium in sale.86 It generally had to consist in money; and it had to be verum and certum, but not necessarily iustum. Only a few comments are necessary.

Obviously the locatio could not be made donationis causa87 and thus, for instance, a conductio nummo uno was invalid.88 There was no verum pretium. As to the "certainty of price" requirement, the same problem cases were discussed as in sale. What if I let my house for "quanti Titius aestimaverit" or what if no reward is fixed at the time of the conclusion of the contract, on the understanding that such agreement may be reached at a later stage? Gaius leaves these questions open,89 but Justinian says "non proprie locatio et conductio contrahi intellegitur".90 And as to the question of equality in exchange, we can refer to Paulus D. 19, 2, 22, 3, this notorious epitome of individualism in the domain of Roman private law:

"Quemadmodum in emcndo ct vendendo naturaliter concessum est quod pluris sit minoris emerc, quod minoris sit pluris vendcre et ita invicem se circumscribere, ita in locationibus quoque et conductionibus iuris est."41

(b) Pecunia numerata?

Somewhat more complex is the situation with regard to the first of the above-mentioned requirements, namely that the merces had to consist in pecunia numerata. From early on,92 there was at least one exception: in the case of agricultural tenancies it could be agreed that the locator should receive, in the place of a monetary reward, a specified proportion of the crops. This arrangement was called colonia partiaria93 and, despite its affinity to societas, the contract was still locatio conductio (rei). Plinius recommended this type of transaction (albeit as a last resort) in view of the fact that the coloni were notoriously

6 On the close relation betwee n sale and hire cf. e. g. Gai . I l l , 142; Gai . D. 19, 1, 2 pr.; Inst. Ill, 24 pr.; M aye r-M aly, Locatio conductio, pp. 63 sqq. R 7 Paul. D. 19, 2, 20, 1. ня Ulp. D . 19, 2, 46. m Gai. Ill, 143. On Cato, De agri cuhura, X VII, 14, see Watson, O bligations, pp. 103 sqq.

90 Inst. Ill, 24, 1. Justinian could afford to be strict on this point, since e xclusion from the re gime of locatio conductio no longe r me ant non-e nforce ability of the transaction. An actio praescriptis ve rbis was available .

91Cf. sup ra, p. 2 56.

92On negotia partiaria in Cato, De agri cuhura, CXLV sq., 136 sq. see Watson, Obligations,

pp.104sq.

'For details see Franz Kobler, Der Teilbau im rb'mischen und geltenden itahenischen Rccht

(1928); Mayer-Maly, Locatio conductio, pp. 135 sqq.; J.A.C. Thomas, "The Nature of Merces", 1958 Ada juridica 197 sqq.; F.P. van den Heever, The Partiarian Agricultural Lease in South African Law (n.d). Specifically on the medieval concept of share-cropping, see E.J.H. Schrage, "Colonia partria, Zum Rechtsbegriff der Teilpacht aus der Sicht der Glossatoren", in: Satura Roberto Feenstra oblata (1985), pp. 393 sqq.

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destitute and usually struggled to pay their rent.94 Colonia partiaria, under these circumstances, was favourable for the lessor in that it gave him an income in kind where he might well have lost out otherwise. For the tenant it was advantageous in that he could share the risk of crop failure with the lessor: if the harvest was poor, the lessee's obligation towards the lessor was reduced proportionate.95

There is considerable dispute whether classical law recognized further exceptions to the pecunia numerata requirement. Two smallholders own one ox each. In order to pool their assets, they agree that each of them may in turn use both oxen for a period often days.96 Locatio conductio? Two persons who do not get on with each other own a farm in common. They agree that each of them will in turn hire the other's share for a year at a time with the effect that they would be in a position, in alternate years, to use and draw the profits of the whole farm. After he has had the farm for one year, the one party sends his cattle onto the field, with the result that the prospects of the following year's crop are ruined. Can the other party avail himself of the actio conducti?97 In the first example, the granting of an actio in factum was considered, in the second one (involving co-owners) the actio communi dividundo. Others seem to have argued that the actions arising from locatio conductio could be applied.98 But ultimately, still in classical law,99 the view came to prevail that locatio conductio required a merces in money.100 This was Justinian's view too, and use-exchange transactions came to be accommodated as innominate contracts.

4.Leases for a fixed term

(a)Lustrum; ius repellendi and ius migrandi

Apart from these essentials of locatio conductio, the parties were, of course, entirely free to agree to any number of accidentalia negotii. Often, for example, they fixed a specific term during which the lessee was to have (and enjoy) the object of the lease; in the case of agricultural tenancies this was usually quinquennium (or: lustrum), a period of five

94Epistulae, Lib. IX, 37.

95Gai. D. 19, 2, 25, 6.

96Ulp. D. 19, 5, 17, 3; Inst. Ill, 24, 2.

97Ulp. D. 10, 3, 23.

9Я As can, for instance, be seen from "quaeritur" in Gai. Ill, 144. Cf. further Afr. D . 19, 2, 35, 1; on this text, see J.A.C. Thomas, "D. 19, 2, 35, 1", (1971) 74 BIDR 83 sqq.; Karlheinz Miscra, "Der Nutzungstausch bci Nachbarn und Miteigentumern", (1977) 94 ZSS 273 sqq., 277 sqq.

But probably only at a time when the availability of other remedies (csp. the actio in factum) for such use-exchange transactions was widely recognized.

100 Cf. e.g. Mayer-Maly, Locatio conductio, pp. 129 sqq.; Thomas, 1958 Acta Juridica 191 sqq.; Watson, Obligations, pp. 101 sqq.; Miscra, (1977) 94 ZSS 267 sqq. On Ulp. D. 19, 2, 19, 3, cf. Mayer-Maly, Locatio conductio, pp. 137 sq. and Karoly Visky, "I contratti di locazione nella crisi economica del III secolo", in: Studi in onore di Cesare Sanfilippo, vol. I (1982), pp. 670 sqq.

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years.101 After the lapse of this period the contract came to an end and the lessee had to hand the object back. Only under certain circumstances was either of the parties allowed to dissolve the contractual relationship before that time: the lessor could expel the lessee if the latter did not pay the rent, if he neglected his duty to cultivate

the land,1"2 or grossly abused the former's property, if the object of the lease was in need of repair or if the lessor needed it for his own use;103

the lessee could relinquish the object, if it had become unfit for use or if its continued use entailed a danger for him.104 The lessor thus had a ius repellendi, the lessee a corresponding ius migrandi. Especially with regard to the latter, a rather restrictive tendency prevailed. This is not only in tune with the unfavourable treatment accorded to lessees generally, but also shows a specific desire to keep coloni on the soil and thus to ensure, in the public interest, that the land continued to be cultivated.105 As far as public lands were concerned, there even seems to have been a practice of forcing lessees to stay on after expiry of the term of lease, if no other lessee could be found to look after the land. This device backfired, however, for fewer and fewer people were prepared, under these circumstances, to take public lands on lease in the first place. The penuria colonorum eventually forced the Emperor Hadrian to relent:

"Valde inhumanus mos est iste. . . . facilius invenientur conductores, si scierint fore ut, si peracto lustro disccdere voluerint, non teneantur."1""

(b) Relocatio tacit a

The desire to promote soil cultivation, incidentally, provides the policy background to another legal construction: "Qui ad certum tempus conducit, finito quoque tempore colonus est; intellegitur enim dominus, cum patitur colonum in fundo esse, ex integro locare."107 This is what came to be called relocatio tacita: if the conductor remained on the land after the term of the lease had come to an end, the contract was deemed to have been renewed; its duration was extended.

101Cf. e.g. Paul. D. 19, 2, 24, 2-4; De Neeve, Colonus, p. 10; Visky, Spuren, pp. 205 sqq. For urban leasehold, cf. Frier, Landlords and Tenants, p. 37.

102Paul. D. 19, 2, 54, 1; on this text, see Giuseppe Gilibcrti, "La 'stipulatio poena', in

D.19, 2, 54, 1 (Paul. 5 Resp.)", (1983) 29 Labeo 44 sqq.

103C. 4, 65, 3 (Ant.); Mario Battaglini, "La risoluzione del contratto de locazione per necessita del locatore ncl diritto Romano e comune", in: Studi in onore di Emilio Belli, vol. IV (1962), pp. 523 sqq.; Frier, Landlords and Tenants, pp. 92 sqq. This was not a numerus clausus of instances of justified expulsion. On cases where a third party was involved in the

expulsion of a tenant, cf. Frier, pp. 79 sqq.

04 Cf., for example, Gai. D. 19, 2, 25, 2 ("Si vicino aedificante obscurentur lumina

cenaculi, teneri locatorem inquilino: certe quin liceat colono vel inquilino relinquere conductionem, nulla dubitario est"); Alf. D. 19, 2, 27, 1 (". . . si quis timons causa emigrasset . , ."); Ulp. D, 19, 2, 13, 7 ("Exercicu veniente migravit conductor . . ."): for details, see Frier, Landlords and Tenants, pp. 92 sqq.

105 Mayer-Maly, Locatio conductio, pp. 216 sqq.

"* Call. D. 49, 14, 3, 6. 107 Ulp. D. 19, 2. 14.

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It was the very same contract that continued to exist, and hence pignora (and other accessory rights) did not fall away either: "Qui impleto tempore conductionis remansit in conductione, non solum reconduxisse videbitur, sed etiam pignora videntur durare obligata."108 Details about the length of time for which such (re-)locatio was deemed to have been concluded are not entirely clear109 and were consequently controversial in later times.110 The relocatio tacita as such, however, with tacit or implied consent as its dogmatic basis,111 has survived the ages and can still be found in the modern German Civil Code.112 § 568 BGB ("If, after the expiration of the term of the lease, the use of the thing is continued by the lessee, the lease is deemed to have been extended for an indeterminate time. . . .") has even gained in stature, for it applies not only where the lessee continues to use the thing after effluxion of the time for which the lease had originally been entered into but also where the lessor has terminated the lease by way of notice.113 The relocatio tacita, in its modern form, has thus assumed a new function and plays a role (albeit a rather minor one) in the quest for security of tenure for housing tenants.

5. Leases for an indefinite period

We have so far been discussing the situation where the lease was for a fixed term. If, on the other hand, the parties did not agree on the duration of the lease and concluded their contract for an indefinite period, then either of the parties could unilaterally terminate the lease at any time. There was no security of tenure at all. Again, the termination of the contract happened in a relatively crude and unrefined manner: expellere or repellere in the case of the lessor, migrare, relinquere, deserere as far as the lessee was concerned.114 The institution of giving notice was unknown to the Romans and so were specific periods of notice. Our modern rules relating to the giving of notice try to safeguard the reasonable interests of the debtor; historically, they derive from local customs which have varied from place to place and from

108Ulp. D. 19, 2, 13, 11; for details, see Frier, Landlords and Tenants, pp. 165 sqq.

109In cases of agricultural lease, the relocatio according to Ulp. D. 19, 2, 13, 11, was from year to year: the tenant allowing for the "planting of seeds, reaping etc., would need a year fully to derive benefit from the holding over" (Thomas, TRL, p. 295); this was different in the case of domestic premises or immovables. It is unclear, however, how far Ulp. D. 19, 2, 13, 11 can be accepted as being genuinely classical (cf. e.g. Mayer-Maly, Locatio conductio, pp 220 so,).

Cf. eg. Gluck, vol. 17, pp. 278 sqq.; Vangerow, Pandekten, § 644.

1 Ulp. D. 19, 2, 13, 11 (". . . hoc enim ipso, quo tacucmnt, consensisse videntur"; Kaser, RPr I, p. 229; RPr II, p. 88). In canon law (Liber Sextus, Lib. V, Tit. XII, De rcgulis iuris, XLII1) this became "qui tacet, ccmsenrire videtur").

112"Motive", in: Mugdan, vol. II, pp. 230 sqq.

113BGH, 1980 Neue Juristische Wochenschrift 1578.

114Kaser, RPr I, p. 568; Frier, Landlords and Tenants, pp. 70, 92.

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time to time.'15 First of all, the debtor has to be left in no doubt whether the lease will come to an end (hence with regard to the lease of living accommodation, modern German law requires writing).116 Secondly, the debtor must have some time to adjust himself to the new situation.117 And thirdly, the law usually tries to ensure that the lessee be allowed sufficient time "to have some real benefit from the transaction".118 This is the reason why, in the case of agricultural leases for an unspecified period, the lessee must be able to enjoy the property for at least one year (i.e. one farming cycle).119

6. Leases in perpetuity

Implicit in what has been said so far is, of course, the fact that lease (as opposed to sale) is concerned with a merely temporal transfer of the object.120 Even if no definite period had been agreed upon, the contract was terminable by either of the parties at any time. Gaius mentions one exception,121 which, however, related exclusively to agri vecticales belonging to a municipality. These were usually let in perpetuity,122 i.e. upon the terms that, as long as the rent was paid, the land was not to be taken away from either the tenant or his heir. There seems to have been some debate about whether this was sale or hire: "sed magis placuit locationem conductionemque esse."123 In post-classical times, long-term leases became more and more common as a device to attract competent managers to run the often uncultivated public estates.124 Alongside the ordinary locatio conductio, emphyteusis (with regard to fundi patrimoniales, i.e. the private property of the emperor)125 and a

115Cf. the statutes of the upper Italian city-states, for example the Statutes of Trient (1528): "Item statuimus et ordinamus, quod si aliquis locator velit aliquem conductorem expellere de domo . . ., debeat certiorare ipsum conductorem per mensem ante tempus locationis finitae" (cf. Klaus Genius, Der Bestandsschutz des Mietverhaltnisses in seiner historischen Entwicklung bis zu den Naturrechtskodifikationen (1972), p. 74 sq.); Johannes a Sandc, Decisiones Frisicae (Leovardiae, 1635), Lib. Ill, Tit. VI, Def. I (". . . consuetudine apud Frisios receptum est, ut dominus, qui vel ipse re locata uti frui, vel alteri earn locare aut alienare, vult colono aut inquilino ante Calendasjanuarii denuntiet"; cf. further Genius, e.g. p. 144).

116§ 564 a BGB.

117Hence the periods of notice, the length of which can be determined, for instance,

according to whether the rent is measured by days, weeks or months; cf. § 565 BGB.

118Mackay v. Naylor 1917 TPD 533 at 538.

119Cf, for example, Grotius, Inleiding, III, XIX, 8; Van Lecuwen, Censure Forensis, Pars I, Lib. IV, Cap. XXII, 6; § 595 BGB; but see the more refined considerations by Pothier,

Traite du contrat de louage, n. 28.

120Hence: "Non solet locatio dominium mutare": cf. Ulp. D. 19, 2, 39. For an exception (the so-called locatio conductio irregularis—a phenomonen similar to the depositum irregulare), see infra, p. 402, note 101.

lil Gai. Ill, 145.

122Kascr, RPr I, p. 455.

123Gai. Ill, 145.

124Cf. Ludwig Mitteis, Zur Geschichte der Erbpacht im Alterthum (1901), pp. 33 sqq.; Levy, Vulgar Law, pp. 43 sqq.; Kaser, RPr II, pp. 308 sqq.

For details, see Kaser, RPr II, pp. 151 sqq.

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so-called ius perpetuum (relating to fundi rei privatae, i.e. State land)125 came to be recognized; both institutions were covered by the vague and comprehensive concept of ownership in vulgar law.126 As a consequence of this, the dividing lines between locatio conductio and ownership became blurred, a development which was stopped only by the Emperor Zeno, who recognized and accepted the ius emphyteuticarium as an institution sui generis, creating a ius in rem and being distinct from both locatio conductio and transfer of ownership subsequent to a contract of sale.127 The European ius commune continued to provide special rules for long-term leases128 and distinguished between locatio conductio simplex (or: ad modicum tempus) and locatio conductio ad longum tempus. Only the former was regarded as an obligatory contract of lease, to which the Roman rules relating to locatio conductio were applied. If the term for which the lease was entered into exceeded modicum tempus (usually ten years), the lessor was taken to have transferred dominium utile129 to the lessee. The lessee's position was sometimes equated with that of an emphyteuta; more often, however, locatio conductio ad longum tempus was regarded as a separate institution (which did not preclude the application of some of the rules relating to emphyteusis). Others distinguished between locationes in perpetuum and emphyteusis.130 Pothier mentions the louage a tongue temps13* but does not give any special rules. Modern German law no longer recognizes perpetual leases. If a lease is entered into for more than 30 years, either party may terminate the contract after 30 years by giving notice.132 The emphyteusis has not survived codification. It continues to exist in South African law,133 and with it the lease in perpetuity.134

126Levy, Vulgar law, pp. 45 sqq.

127C. 4, 66, 1; cf. Inst. Ill, 24, 3.

12H For what follows, see Paolo Grossi, Locatio ad longum tempus (1963); Coing, pp. 369 sq. As to the glossators, cf., more recently, E.J.H. Schrage, "Emptio (Nondum) Tollit Locatum", 1978 Acta Juridica 6 sqq.

129On the distinction between dominium directum and dominium utile, cf. E. Meynial, "Notes sur la formation de la theorie du domaine divisc (domaine directe et domaine utile) du XHe au XlVe siecle dans les romanistes—etude de dogmatique juridique", in: Melanges Fitting (1908), vol. II, pp. 409 sqq.; Robert Feenstra, "Les origincs du dominium utile chez les Glossateurs", in: Fata iuris romani (1974), pp. 215 sqq.; D.P. Visser, "The 'absoluteness' of ownership: the South African common law in perspective", 1986 Acta Juridica 39 sqq.

130Cf. e.g. Stryk, Usus modemus pandectarum. Lib. XIX, Tit. II, § 51.

131Contrat de louage, n. 27.

132§ 567 BGB.

133С G. van der Merwe, Sakereg (1979), pp. 420 sqq.

134Kerr, Sale and Lease, p. 183. Van Leeuwcn, Censura Forensis, Pars I, Lib. IV, Cap. XXII, 4, says: "Caeterum quod a quibusdam alia dicatur quae ad certum tempus, alia quae in perpetuum initur, proprie ad locationem non pertinet, sed in alium contractum transit: Emphyteusin nimirum:. . . ."

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7. The duties of the locator

If, as we have seen, locatio conductio involved the letting of a thing either for use, or for use and enjoyment of the fruits {fruenda locata), then obviously such frui licere was what the locator owed under the contract. He had to let the thing to the other party for the period agreed upon and he had to see to it that this thing was and remained fit for that other party's use and (possibly) enjoyment. Thus, for instance, he had to keep a house or stable that he had let in good repair.135 Another example is discussed by Gaius:

"Si vicino acdificantc obscurentur lumina ccnaculi, teneri locatorem lnquilino: . . .

de mcrcedibus . . . cum eo agatur, reputationis ratio habenda est. cadem intellegcmus, si ostia fencstrasve nimium corruptas locatur non restituat."'36

Neither does the tenant have to dwell in darkness, nor does he have to suffer constant draught. If the locator sues for rent, a set-off will take place.

Apart from his main obligation of frui licere, the locator also had to comply with whatever the parties had agreed upon "in lege conductionis".137 Locatio conductio was a consensual contract which gave rise to bonae fidei iudicia. Hence all ancillary agreements, with which the parties might have supplemented or adapted the content of locatio conductio to suit their individual case, became part and parcel of the contract138 and were sanctioned by the actiones locati and conducti. They specified the contractual programme for this individual case and therefore had something like the force of law between these two parties: "contractus enim legem ex conventione accipiunt."134 Often such special terms were not individually negotiated; instead, the parties adopted a standardized version, prepared and used by the locator. The lex conductionis (locationis)140 under these circumstances fulfilled the function of what we today call standard contract terms.

8.The range of the lessor's liability

(a)Prevention of frui licere

Failure on the part of the locator to comply with his duties could, as we have seen, entitle the lessee to terminate the lease by simply moving out.141 In addition, he was released (either partially or totally) from his obligation to pay the rent and, where he had already paid it, he could

135 Ulp. D. 19, 2, 15, 1. I3ft

Gai. D. 19, 2, 25, 2. 137 Ulp. D. 19, 2, 15, 1. 13H Cf. infra, pp. 509 sqq. 134 Ulp. D. 16,

3, 1, 6.

' Cf. Maycr-Maly, Locatio conductio, pp. 106 sqq.; von Liibtow, Symbolae Taubenschlag,

vol. Ill, pp. 239 sqq.; Frier, Landlords and Tenants, pp. 61 sqq.; De Neeve, Colonus, op. cit., note 101, pp. 5 sqq.; cf. also Kaser, RPr I, p. 229. 141 Cf. supra, p. 356.

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