!!Экзамен зачет 2023 год / The Law of Obligations

avail himself of the actio conducti to claim it (or part of it) back.142 Finally, the actio conducti could be brought in order to claim damages. For such a claim to succeed it had to be shown, as a rule, that the lessee had been prevented from frui licere due to the lessor's fault.143 Take the case of the owner of an insula who had leased it, for a sum of 30, to a principal tenant. The latter had in turn sublet the various cenacula for a total of 40. The owner then demolished the insula. Question: what can the principal tenant sue for? Alfenus draws a distinction:

"si vitiatum acdificium ncccssario dcmolitus esset, pro portione, quanti dominus praediorum locasset, quod cius temporis habitatorcs habitarc non potuisscnt, rationcm duci ct tanti litcm aestimari: sin autcm non fuissct necessc dcmoliri, scd quia melius acdificarc vcllct, id fecissct, quanti conductoris intcrcsset, habitatores ne migrarcnt, tanti condemnari oportcrc."144

If the evacuation of the house was not due to the fault ot the lessor, the lessee may claim back that part of the rent that he had paid for the time during which he could not use the house. If, on the other hand, the lessor had ordered the house to be demolished merely because he wanted to rebuild it in grand new style, he has to reimburse the (principal) tenant for his loss of profits (i.e. the amount of rent which the tenant had not been able to extract from his subtenants). In other words: the lessee may claim his positive interest.'45

(b) Choosing unsuitable slaves

Digesta 19, 2, 30 pr. provides an example (one of several) where the damages arose due to the fact that the lessee was prevented from frui licere. But the loss could also be caused by the res locata itself. One merely has to think of the hire of slaves in this regard. The slave may be of an unpleasant or criminal disposition; he may start stealing the lessee's property or engage in other harmful activities. In these instances, however, classical lawyers preferred to apply the rules relating to noxal {i.e. delictual) liability.l4f' The delict was not intrinsically linked to the contractual relationship; the lease had merely provided the occasion for committing it. But the situation was different where the slave turned out to be unsuitable for the very activity for which he had been hired. Two interesting texts discuss the contractual

142 Cf. e.g. Alf. D. 19. 2, 27 pr.; Alf. D. 19, 2, 30 pr.; cf. also Gai. D. 19. 2, 25. 2 (supra, p. 360 ). Cf. further Bruce W. Frier, "Tenant Remedies for Unsuitable Conditions Arising after Entry", in: Studies in Roman law in Memory of A. Arthur Schiller (1986), pp. 65 sqq., 70

- Max Kaser, (1957) 74 ZSS 157 sqq.; Imrc Molnar, "Verantwortung und Gefahrtragung bei der locatio conductio zur Zeit des Prinzipats", in: ANRW, vol. I I , 14 (1982), pp. 663 sqq. Cf. also Buckland/Stein. p. 500; Thomas, TRL, p. 294.

144Alf. D. 19, 2, 30 pr.

145Kaser. (1957) 74 ZSS 158; Honscll, Quod interest, pp. 119 sqq.; cf. further Afr. D. 19, 2, 33 (second part, from: ". . . nam ct si colonus"): Atr. 1). 19, 2, 35 pr.

1'' Paul. D. 19, 2, 45 pr,, 1; Mayer-Maly, Locatio conductio, pp. 156 sqq. On noxal liability

generally, see infra, pp. 916 sq., 109У sq., 1118 sq.

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liability of the lessor for an unfree muleteer who had caused, due to clumsiness in handling it, the death of the lessee's mule:

"Servum meum mulionem conduxisti: neglegentia eius mulus tuus peril, si. . . eum locassem, non ultra me tibi praestaturum, quam dolum malum et culpam meam abessc: quod si sine definitione pcrsonac mulionem a me conduxisti et ego eum tibi dedissem, cuius neglegentia iumenturn perierit, illam quoque culpam me tibi praestaturum aio, quod eum elegissem, qui eiusmodi damno te adficeret."147

What is the basis of the lessor's liability under the actio conducti? A distinction is drawn by Labeo as to whether a specific slave was hired for this purpose or whether the selection of the particular slave had been left to the locator. If, in the latter instance, the locator has chosen an unsuitable slave, he is liable on account of culpa in eligendo. For the former alternative, too, culpa seems to be the decisive criterion—culpa in contrahendo, as one could put it. In which respect the lessor has been negligent is, however, left to speculation. Perhaps his fault lies in not disclosing that the slave is too lazy, too weak or inexperienced to be a competent muleteer, but possibly he is blamed for the mere fact of having provided a slave who turns out to be incapable of properly handling a mule. In the latter case, the lessor's liability comes very close to a liability based on an implied guarantee that the object of the lease is fit for the purpose envisaged in the contract.

(c) Defect of title

Such a guarantee could, of course, be undertaken expressly by the lessor.148 If the expectations raised by the lex conductionis were disappointed, the lessee could bring the actio conducti for his full interest. There were certain cases, however, apart from (possibly) the hire of muleteers, where the Roman lawyers took a guarantee to be implicit in the contract of lease. A variety of texts confirm that the problem of defect of title was handled in this way—just as, incidentally, in the case of emptio venditio.149

"Si quis domum bona fide emptam vcl tundum locaverit mihi isque sit evictus sine dolo malo culpaque cius, Pomponius ait nihilo minus cum teneri ex conducto ei qui conduxit, ut ei praestetur frui quod conduxit licerc."15"

147 Lab. D. 19, 2, 60, 7. The other text is Ulp. D. 9, 2, 27, 34: "Si quis servum conductum ad mulum regendum commendaverit ei mulum illc ad pollicem suum eum alligaverit de loro et mulus eruperit sic, uC et pollicem avelleret servo et se praecipitaret, Mela scribk, si pro perito impentus locatus sit, ex conducto agendum cum domino ob mulum ruptum vel dcbilitaium, sed si ictu aut terrorc mulus turbatus sit, turn dominum cius, id cst muli, et servi cum eo qui turbavit habiturum legis Aquiliae actionem. mihi autem videtur et eo casu, quo ex locato actio est, competere etiam Aquiliae." On these texts (and the question of their authenticity), cf. Mayer-Maly, Locatio conductio, pp. 159 sq.; Kaser, (1957) 74 ZSS 161 sqq.; Stein, Fault, pp. 105 sqq.; Molnar, ANRW, op. cit., note 143, pp. 622 sqq.

14H Cf. Ulp. D. 19, 2, 15, 1 (". . . si quid in lege conductionis convenit").

149Cf. supra, pp. 293 sqq.

150Ulp. D. 19, 2, 9pr. Cf. further Ulp. (Hans Kreller, (1948) 66 ZSS 76 sq.) D. 19, 2, 7;

Tryph. D. 19,2, 8; Ulp. D. 19,2, 15, 8 and Kaser, (1957) 74 ZSS 166 sqq.; Mcdicus, Id quod interest, pp. 96 sqq.; Honsell, Quod interest, pp. 130 sqq.; Molnar, ANRW, op. cit., note 143,

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If a third party asserted a real right in the object of the lease and evicted the lessee, the latter could take recourse against his lessor. It did not matter that the lessor had been in good faith himself and that not even negligence could be attributed to him. The lessee could reasonably expect not to have his frui licere disturbed by a third party with a-better right to the object leased to him. Ulpianus (D. 19, 2, 7)151 makes it clear that the lessee could recover his (positive) interest: he could claim the 60 that he had been prevented from extracting from his subtenant, not only the 50 that he himself owed to the lessor.152 Here, as in some other instances too,153 the lessor could, however, avert liability under the actio conducti by providing reasonable alternative accommodation: "plane si dominus non patitur et locator paratus sit aliam habitationem non minus commodam praestare, aequissimum esse ait absolvi locatorem."154

(d) Publicatio

Very similar (at least from the lessee's perspective) to these cases of eviction due to a defect in title on the part of the lessor were instances where the lessee was prevented from frui licere because of expropriation (publicatio).155 The consequences of this form of State intervention on the lessor/lessee relationship are discussed in a most interesting, but very controversial text by Africanus.156 Relating first of all the opinion of his teacher Iulianus, he writes:

"Si fundus quem mihi locaveris publicatus sit, teneri te actione ex conducto, ut mihi frui liceat, quamvis per tc non stet, quo minus id praestes."

It appears that Iulianus was prepared to grant a claim for the full (positive) interest even though, as he specifically states, the lessor could not in any way be blamed. This amounts to liability on the basis of an implied guarantee that the lessee will not be expropriated. But would exposure to such far-ranging liability not constitute an unprecedented

pp. 622 sqq. For a different opinion (liability only if the lessor knew about his defect in title), see Nicola Palazzolo, "Evizione della cosa locata e responsabilita del locatore", (1965) 48 BIDR 275 sqq. He leans particularly on Afr. D. 19, 2, 35 pr.

bl "Si tibi alienam insulam locavero quinquaginta tuque eandam sexagmta Titio locaveris et Titius a domino prohibitus fuerit habitare, agentem te ex conducto sexaginta consequi debere placet, quia ipse Titio lenearis in sexaginta."

152 Interestingly, the subtenants in their action against the sublessor could not claim quod interest, but only the prepaid rent. For an explanation, see Frier, Landlords and Tenants, PP.-.79 sqq.

Маусг-Maly, Locatio conductio, pp. 155 sq.

154Ulp. D. 19, 2, 9 pr. (not interpolated: sec Kaser, (1957) 74 ZSS 168).

155Cf. e.g. Paul. D. 21, 2, 11 pr. ("futuros casus evictionis", relating to the expropriation of provincial land). On this text cf. supra, pp. 288 sq.

™D. 19, 2, 33. But see Hans Ankum, "Afr. Dig. 19, 2, 33, Haftung und Gefahr bei der publicatio eines verpachteten oder verkauften Grundstucks", (1980) 97 ZSS 165, according to whom "publicatio" in D. 19, 2, 33 refers to a sale of the fundus to a magistrate or imperial official in the public interest; formally, this was a voluntary sale, even though dc facto the vendor was under some political pressure to sell.

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hardship for the lessor?157 And how can this be reconciled with what Africanus says a few lines later: ". . . et circa conductionem servandum puto, ut merccdem quam praestiterim restituas . . .: nee ultra actione ex conducto praestare cogeris"? This is Africanus himself speaking, and he makes it quite clear that the conductor should be able to reclaim only the rent that he might have paid and nothing more. For centuries, one has tried to interpret Julian's statement in this light,158 but it is very difficult to see how "teneri te . . ., ut mihi frui liceat" can be understood to mean anything but a claim for the conductor's interest. Today it is no longer necessary to try at all costs to reconcile divergent views of Roman jurists for the sake of extracting easily applicable rules from the sources. Nor do we have to assume, more specifically, that Africanus only endorsed what his teacher Iulianus had pronounced. Classical Roman law developed in a casuistic fashion and, particularly where blanket clauses left a lot of leeway, controversies were bound to arise.iy) This seems to have been the case in the present instance, where a decision had to be taken whether, on the basis of the precepts of good faith, an actio conducti should be granted or not. Iulianus (whom we generally see vigorously using the ex bona fide clause inherent in the iudicia bonae fidei as a motor for law reform)16" was evidently prepared to hold the lessor liable under the actio conducti.161 In this particular case, however, his opinion does not seem to have prevailed; Africanus, about 20 years Iulianus' junior,162 rejected it: cautiously and most politely, but none the less quite clearly.163

157 Kascr, (1957) 74 ZSS 177. Contra: Andreas Wackc, "Dig. 19, 2, 33: Afrikans Vcrhaltnis zu Julian und die Haftung fur hoherc Gcvvalt", in: ANRIV, vol. I I , 15, 1976,

p.481.

1 r>H Cf. e.g. Accursius, gl Ut mihi frui, ad I). 19, 2, 33; Donellus, Cotnuwtitaridejtirc Civili,

Lib. XIII, Cap. VII, XVI"; Cluck, vol. 17. p. 370.

l^' On the nature of classical Roman law (and the consequences for the credibility of our sources) in this context, see especially Andreas Bertalan Schwarz, "Das strittige Recht der romischen Juris ten", in: Festschrift jiir Fritz Schtilz, vol. II (1951), pp. 201 sqq.; Max Kaser, 7мг Methode der rotnischai Rechtsfindung (1962), pp. 74 sq.; idem, RPr I, pp. 181 sqq., 188 sqq.; Tomasz Giaro. "Ubcr mcthodologische Werkmittcl der Romanistik", (1988) 105 ZSS 180

sqq.

l(>" Cf. supra, pp. 298 sq., 320.

16 For an examplary exegesis of D. 19, 2. 33 in all its ramifications, see Wacke, ANRW, op. cit., note 157, pp. 455 sqq. Ho draws attention to the point (p. 481) that Iulianus did not hesitate to decide against the wealthy landed aristocracy (to which he himself probably belonged).

162 A.M. Honori, "Julian's Circle", (1964) 32 TR 17.

1' Cf. especially Emil Seckel, Ernst Levy, "Die Gcfahrtragung beim Kauf im klassischen romischen Recht", (1927) 47 ZSS 219 sqq.; Honsell, Quod interest, pp. 122 sqq.; Wacke, ANRW, op. cit., note 157, pp'. 476 sqq.; Aiikum, (1980) 97 ZSS 157 sqq. Contra especially Kaser, (1957) 74 ZSS 177 sqq.; Nicola Palazzolo, "Evizione della cosa locata e responsabilita del locatorc", (1965) 68 BIDR 292 sqq. Modem German law would follow Africanus in the solution of this case: cf. Wackc, pp. 494 sq.

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(e) Leaky vats and toxic plants

Another situation in which the locator's liability was arguably based on

an implied guarantee brings us back to an old acquaintance, the fragment "Si vas".1(S4 It deals with emptio venditio, but says in the end:

"[Q]uod et in locatis doliis praestandum Sabinum respondisse Minicius refert." This is confirmed by another celebrated text which deals more directly with the hire of (wine) jars:

"Si quis dolia vitiosa ignarus locaverit, deinde vinum effluxcrit, tenebitur in id quod interest nee ignorantia cius crit excusata: et ita Cassius"'s scrips.it."">h

It is not easy to understand this decision and to reconcile it with the general principles.167 The difficulties are compounded by the fact that, in the very next sentence, Ulpianus seems to proceed from quite a different principle:

"[Ajliter atquc si saltum pascuum locasti, in quo hcrba mala nascebatur: hie cnim si pecora vel demortua sunt vel ctiam deteriora facta, quod interest praestabitur, si scisti, si ignorasti, pensionem non petes et ita Servio Labeoni Sabino placuit."

In the one case, vats have been hired, but they were so damaged that the hirer's wine runs out. The lessor is liable, no matter whether he knew about the defect or not ("nee ignorantia eius erit excusata"). The position is different where a pasture that is leased out contains

poisonous herbs. The lessee's cattle die. But he can claim damages only if the lessor had known about the evil weeds.168 How can these

statements be reconciled? Do we have to assume that the Roman lawyers decided casuistically and that the search for a general principle determining the liability of the lessor would be futile?169 Did the Romans apply two (or possibly three) different types of liability: strict liability in the case of wine jars and related objects, liability only for dolus as far as pastures were concerned170 (and possibly culpa liability for all other objects)? What would be the reason for such a differentiated system of liability? Or is it possible to reconcile the two statements with each other? Attempts to do just that have not been lacking. But does one have to (effectively) rewrite either the first part of D. 19, 2, 19, 1—in order to achieve such reconciliation on the basis of liability for

164 Pomp. D. 19, 1, 6. 4. Cf. supra, pp. 309, 320, 334 sqq.

1('5 Cassius was a student of Sabinus. Sabinus (whose opinion has been related by another

of his students, Minicius) is quoted by Pompomus in I). 19, 1, 6, 4. 16fi Ulp. D. 19, 2, 19, 1.

fi7 For a recent discussion, see Christoph Krampe, Die Garantiehctftwtg des Vermicters fur Sachma'ngel (1980), pp. 21 sqq.

вн However, in the case of ignorantia the lessor still loses his right to claim counterpcrformance (the merces locarionis). On this aspect of the decision (and on its relation to Ulp. D. 19, 2, 15, 2, cf. the recent discussion by Ernst, (1988) 105 ZSS 554 sqq.

"l9 Krampe, op. cit., note 167, p. 26.

170Prevailing opinionsee Stein, Fault, pp. 100 sqq.; Mayer-Maly. Locatio conductio, pp. 168 sqq.; Medicus, Id quod interest, p. 155.

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366 The Law of Obligations

dolus only171—or alternatively the second half of it (so that the lessor would always be strictly liable)?172 It is very difficult, if not impossible, to reconstruct the true position in Roman law.

To my mind, the most convincing argument would run something like this.173 The idea of different degrees of liability is bound to lead to problems. Why should the lessor of pasture always (i.e. even if he could have known that his field contained poisonous weeds) be liable only for dolus? And what is the justification for the strict liability of a lessor of vats for wine? Can one necessarily say that such a lessor implicitly promises to compensate for the loss of wine due to any leakage? And why does the text mention only these two extreme cases? Would all other objects have to be brought (together with the vats) under strict liability or (together with pasture) under dolus liability? These and other problems can be avoided only by postulating a common principle underlying both decisions. This common principle can neither be strict liability (for then the reference to scientia on the part of the lessor in the second example would be futile), nor dolus liability (for then the reference to ignorantia non excusata174 in the first example would not make sense). It can therefore only be that type of liability which was normally applied to the lessor anyway, and that is culpa.175 Or, to formulate in terms of D. 19, 2, 19, 1: the lessor is liable if he knows about the defect in the object of the lease, or if his ignorance cannot be excused. It is within this framework that the characteristics of the object of the lease become relevant. Where defective vats are let, the lessor's ignorance can normally not be excused and his negligence can therefore be presumed. It is a matter for speculation why that was so: possibly, because it was the lessor who chose the vats and because the lessee did

not have any opportunity to acquaint himself with their fitness for holding wine.176 Not so where a pasture is the object of the

171See Franz Haymann, Die Haftuny des Verkaujersjiir die Beschaffenheit der Kaufsache, vol. I (1912), pp. 96 sqq.

172See Gerhard Beseler, "Et ideo-Dcdararc-Hic", (1931) 51 ZSS 70.

"Cf. Klaus Luig, "Zur Vorgeschichte der verschuldensunabhangigen Haftung des Vermieters fur anfangliche Mangel nach § 538 BGB", in: Festschrift flir Heinz Huimer (1984), pp. 129 sqq.

Dismissed by many as interpolated (cf. e.g. Mayer-Maly, Loctitio conductio, p. 169); but see, for instance, Voci, L'etrore, p. 251.

175Luig, Festschrift Hubner, p. 132; cf. also Buckland/Stein, p. 500; Liebs, RR, p. 244.

176Cf, for example, Honsell, Quod interest, p. 134; also Ulrich von Lubtow, "Zur Frage der Sachmangelhaftung im romischen Rccht", in: Studi in onore di Ugo Hnrico Paoli (1955), pp. 490 sq. After all, the dolia were sunk into the ground. In the case of pasture, on the other hand, the lessee was in as good a position as the lessor to evaluate what was growing on it. It was not expected of the lessor to let his own cattle trial-graze on the pasture. According to Mayer-Maly (Locatio conductio, p. 170), the crucial difference lies in the fact that the effluxion of wine in the case of leaking vats is the typical kind of damage that is bound to happen, whereas the loss of cattle due to mala herba growing on the lessor's pasture is not so typically related to the defect. Others argue that a leaking vessel is not a receptacle, whilst a pasture with poisonous herbs is still a pasture (Thomas, TRL, p. 294; Kaser, (1957) 74 ZSS 166). Also, it has been pointed out that, in the case of vats, express guarantees were

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lease: the lessor's ignorance about the toxic plants is much more easily excusable; as long as he had not known about their existence, no fault is normally attributable to him. He cannot normally be held responsible for not knowing that there happen to be poisonous weeds growing somewhere on his land. The standard of diligentia required of a lessor of vats was therefore different from what could reasonably be expected of a lessor of pasture; the one was required to know about certain defects (and if he didn't, this was bound, as a rule, to constitute culpa), the other one not.

(f) From Vlp. D. 19, 2, 19, 1 to § 538 BGB

Roman wine jars have left their mark on the history of private law. The

subsequent fate of D. 19, 1, 6, 4 has already been briefly discussed.177 Similarly interesting was the afterlife of D. 19, 2, 19, I.178 Throughout

the various periods of European jurisprudence there were those who tried to see this fragment as an expression of the general principle of liability for fault: only for fault, but for every kind of it. This is very much in accordance with what has been suggested above. Accursius's Glossa ordinaria provides a good and early example. "Sed cur aliter?", he asks, apropos the words "in quo mala herba" in D. 19, 2, 19, 1. "Respon. quia in doliis ignorare non debuit. in pascuis vero iuste potuit ignorare. nam quae facilius sciri possunt, si ignoratur, gravius coercentur." In other words: ignorance in the case of vats is inexcusabilis, whilst in the case of pasture it is normally excusabilis. This was still the prevailing opinion centuries later, during the times of the usus modernus and of pandectism.179 Voet—among others—tried to rationalize the decision with regard to the wine jars on the basis that the locator had himself manufactured them:

"Praestetur dcnique reparatio damni totius, quod conductor ex rei conductae vitio passus cst, sive sciverit locator vitium illud sivc ignoraverit, quoties circa rem

originally given by the lessors. In the course of time, these acddentalia negotii became so common that they were ultimately turned into naturalia negotii (Karlowa, Romische Rechtsgeschichte, vol. II (1901), p. 640). According to Stein (Fault, p. 103) the vats were defined by mere description. "In such a case the lessor is liable for all loss caused by his failure to supply goods which answer to that description." (But it is very doubtful whether the Romans recognized the lease of unascertained goods; there appears to be no evidence for this proposition.) For a similar view, sec Karl Heldrich, Das Versdmldeti beim Vertragsabschluss (1924), p. 21. Most recently, attention has been drawn to the economic background to D. 19, 2, 19, 1. Lessors of pasturage, frequently resident in Rome, could not be expected to know the toxic state of their plants, whereas the lessor of vats was easily able to determine whether the dolia were sound or not. Also, the lessors of pasturage (unlike the lessors of dolia) belonged typically to the upper class of society, and the jurists may not have regarded it as "socially practicable" to increase the scope of their liability: c(. Brigitte Clark, "Leaky Vats and Toxic Plants: Ulp. D. 19, 2, 19, 1 and the Liability of the Lessor", (1987) 50 THRHR

455.

177 Cf. supra, p. 365.

17K Cf. Luig, Festschrift Hiibner, pp. 132 sqq.

179 Cf. e.g. Heineccius, Elementa luris Civitis, §§ 924, 929; Gluck, vol. 17, pp. 361 sqq.; Arndts, Pandekten, § 311; Dernburg, Pandekten, vol. II, § 111, 2.

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locatam artificium vcrsatur, ct locator artitcx est; quippc qui tune utique scirc debucrat, quac suae artcs crant. . . ."|ч"

This interesting but, de lege lata, somewhat far-fetched argument (which Voet also tried to promote in the case of sale)18' did not gain widespread acceptance.182 Much more influential, in the long run, was a train of thought that can be traced back to Donellus.

"Quaeritur igitur", we read with regard to the two cases discussed in D. 19, 2, 19, I:183

"cum utrobique sit ignorantia, cur, si pariter culpa est in locators, non pariter is obligctur m id quod interest. . . . Scio dici posse, ignorantiam istam non pariter in his aestimari, propterea quod qui saltum locavit, potucrit juste ignorare in со saltu malam hcrbam essc, cam non sit cujusvis noxias hcrba a bonis discernere. Qui autem vitiosa dolia locavit, potucrit vitium explorarc ct sine damno, aqua immissa. At ego de eo loquor, qui hoc ipsum cxplorans cognoscere primo non potuerit. Dicamus igitur hie quoquc idem, quod modo in tundo evicto, quodque supra in vasis vitiosi venditione diximus. eum qui vasa vitiosa ignorans locavit, nihilominus teneri со nomine in id quod interest, quia dolium locans hoc ipso quod dolium dixit, pro integro locavit, scu vi ipsa integrum dixit; quia non est dolium, nisi vas, nee vas, nisi instrumentum ad capiendum humorcm paratum. Quidquid autem in emptione aut locatione emptor locatorve dixcrunt, id pracstarc cos oportct."

By the word "vat" the lessor implicitly refers to a receptacle without leakage. If it does turn out to be leaky, the lessor is liable: not on account of negligence, but because of his implied guarantee. Donellus

— in accordance with D. 19, 2, 19, 1—restricted his argument to dolia; but there is no reason why one should not also be able to ascribe to the term "saltus pascuus" the meaning "grazing ground without poisonous weeds". The argument proposed by Donellus thus lent itself to generalization which was bound to occur sooner or later. It did occur later rather than sooner, namely in Bernhard Windscheid's textbook of pandectist law. If the leased thing is affected by a defect which diminishes its fitness for use, we read in § 400, the lessor is liable to the lessee for his interest, if he has fraudulently concealed such defect or if he has either expressly or tacitly guaranteed its absence. The main basis for this assertion is D. 19, 2, 19, 1. It is indicative of Windscheid's influence on the first draft of the BGB that his suggestion to regulate the lessor's liability for defects in the thing accordingly was immediately accepted.1"4 This is all the more remarkable since a preliminary draft

m> Commentarius ad Patidectas, Lib. XIX, Tit. II, XIV. lfil

Cf. supra, p. 335.

I H 2 Pothier {Traite dit central de towage, § 119), however, went even further. He argued that D. 19, 2, 19, 1 imposes liability not only on the manufacturer but also on the merchant, because his calling as such requires him to have knowledge of the goods in which he trades. This line of argument has been followed in the South African courts (Hunter v. Cumnor Investments 1952 f l ) SA 735 (C) at 74UH-742A. For details of the impact of D. 19. 2, 19, 1 with its "curious" distinction {Alexander v. Armstrong (1H79) 9 Buch 233 at 237) on South African law. c(. Kerr, Sale and Lease, pp. 211 squ.; Clark. (1987) 5(1 THRHR 456 sqq.

1НД Commcmarii de Jure Civili. Lib. XIII, Cap. VII, XVI.

184 For the reasons, see "Motive", in: Mtigdan, vol. II, pp. 209 sq.

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had made the lessor responsible only for fraudulent behaviour, and had not even accepted culpa liability.185 Thus, the following rule was finally introduced into the BGB:

"If a defect of the kind specified in § 537 exists at the time of entering into the contract . . . the lessee may demand compensation due to non-fulfillment."

There is no longer any mention of fault. The liability is based on an implied guarantee. Today, there is a great deal of debate whether this is a happy solution to the problem.186 Within the German law of contract, the rule of § 538 BGB represents something of an anomaly;187 its excessive strictness has repeatedly been criticized.188 On the other hand,

however, attention has been drawn to the social policy perspective of § 538 I;189 it increases the protection of the lessee and can thus be seen as one of the few "drops of social oil"190 within the machinery of the

BGB.

9.The problem of risk

(a)Pcriculum locatoris

Over the preceding pages we have been discussing the locator's liability under the contract of locatio conductio (rei). Such liability, as we have seen, can be based either on fault or on a guarantee (be it express or implied), and the conductor can avail himself of the actio conducti to claim damages. A different, though closely related, question is whether the conductor has to pay the rent, even though he is not able to use (or use and enjoy) the object of the lease. The piece of land may have been swallowed by an earthquake. The (inevitable) invading army may have marauded the cornfields. Jackdaws and starlings may have swooped

Cf. Horst Heinrich Jakobs, Werner Schubert. Die Beratung des Btirgerlichen Gesetzbudis, Recht dor Sdmldverhaltmsse, vol. II (1980). pp. 428 sqq.

For a discussion of the problems involved and of the casuistry, see Krampe, op. cit., note 167, pp. 11 sqq. For an interesting parallel, see the landlord's implied warranty of liability for leased dwellings in American law, developed on the basis of the following dictum mjarvis v. First National Realty 138 AppDC 369, 428 F 2d 1071 (DC Cir. 1970): ". . .

in the case of the modern apartment dweller, the value of the lease is that it gives him a place to live. . . . When American city dwellers, both rich and poor, seek 'shelter' today, they seek a well known package of goods and services. . . . In order to reach results more in accord with legitimate expectations ot the patties and standards of the community, couns have been gradually introducing more modern precepts of contract law in interpreting leases." The concept of implied warranty of habitability (representing one of these "more modern concepts") has been adopted by the Restatement on Landlords and Tenants in 1976. It is criticized by Frier, Studies Schiller, pp. 66 sqq., who argues that the Roman law of urban lease knew no warranty of this type and was thus more "socially adequate" than the modern American lease law.

1H7 Heinrich Honsell, "Positive Vcrtragsvcrlctzung", 1979 Jura 1%.

1Я" Cf. e.g. Walter Wilburg, Die Elenmitc des Schademrechts (1941), p. 141.

1H'' "Protokolle", in: Mugdati, vol. II, p. 814. Cf. Peter Schlechtriem, Vertragsordnung nnd ausservertraglidie Haftung (1972), p. 337; Ingo Koller, Die Risikozuredinung bei Vertragsstomngen in Atistauschi'erhaltnissen (1979), pp. 118 sq. Cf. also Krampe, op. cit., note 167, pp. 38 sqq.

Cf. Wieacker, Privatreditsgesdiichte, p. 47(1.

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down, with disastrous consequences, upon the orchard. Neither of the parties can be blamed for any of these events. Yet, one of them will "feel" the loss: either the locator—who has let his property but may now lose out on the rent—or the conductor, who might have to pay the rent without having been afforded the benefit of frui licere. The former solution would be in accordance with "casum sentit dominus": after all, the locator is still owner of the object. In favour of the second alternative, it may be argued that a valid locatio conductio had been concluded and that the locator had done everything that could be expected of him; thus, the conductor should also have to carry out his part of the arrangement, i.e. to pay the rent. It is obvious that this is not a question of liability (for damages). We are dealing with the problem of risk. As in the case of sale,191 "risk" in this context refers to the question whether counterperformance can still be demanded where the performance has become impossible. For an answer we must turn our attention to Ulp. D. 19, 2, 15, 2:

"Si vis tempestatis calamitosae contigcrit, an locator conductor! aliquid praestarc debcat, videamus. Servius omncm vim, cui resisti non potcst, dominum colono praestarc debere ait, ut puta fluminum graculorum sturnorum ct si quid simile accidcrit, aut si incursus hostium fiat."1'-'2

As a rule, the risk was on the lessor: periculum locatoris. The range of incidents for which the lessor had to carry the risk was defined as "vis, cui resisti non potest". Alfenus, in another text, refers to "vis extraria".193 Both are tantamount to what, in another context,194 we have termed vis maior.iy5 Thus, not every incident for which neither of the parties could be blamed fell under periculum locatoris. Take, as far as agricultural leases are concerned, what one might describe as nonexternal vis ". . . si qua tamen vitia ex ipsa re oriantur, haec damno coloni esse, veluti si . . . raucis aut herbis segetes corruptae sint".196 If the crops are destroyed by worms or weeds, we are dealing with a type of risk which is intrinsically related to the process of

Steinwenter (1958), pp. 60 sqq.; Giuseppe Provera, "Sul problema del rischio contrattuale nel diritto romano", in: Studi in onore di Emilio Betti, vol. Ill (1962), pp. 693 sqq.; Robin Seager, "Of'vis' and Weeds: D. 19, 2, 19, 2 and 19, 2, 19, 1", (1965) 31 SDHI 330 sqq.; Claude Alzon, "Les risques dans la 'locatio conductio'", (1966) 12 Labeo 312 sqq.; Watson, Obligations, pp. 110 sqq.; Hans Ankum, "Remissio mcrcedis", (1972) 19 RIDA 223 sqq.;

Chorus, Handelen, pp. 149 sqq.; Molnar, ANRW, op. cit., note 143, pp. 666 sqq.; P.W. de Neeve, "Remissio Mercedis", (1983) 100 ZSS 308 sqq.; Pinna Parpaglia, op. cit., note 7, pp.

4 sqq.; Ernst, (1988) 105 ZSS 541 sqq., 550 sqq. |l)5Alf. D. 19, 2, 30, 4. m

Cf. supra, p. 193.

193 Cf. also Gai. D. 19, 2, 25, 6 ("Vis maior, quam Graeci fteoi) pCotv appellant"); on this text, see, most recently, Theo Mayer-Maly, "Acquo animo ferre", in: MNHMHPetropoutos,

vol. II (1984), pp. 108 sqq., and Ernst, (l'988) 105 ZSS 545 sqq. 196 Ulp. D. 19, 2, 15, 2.

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