!!Экзамен зачет 2023 год / The Law of Obligations

cultivation197 and therefore has to be borne by the person responsible for and entitled to such cultivation: the conductor.198 More casuistry has been added by post-classical compilers to illustrate this distinction between the two parties' respective spheres of risk.lyg A variety of other texts deal with the lease of residential space200 and attribute the risk of fire (incendium) as well as collapse (ruina) to the locator. Even if the conductor's frui licere is infringed due to aedificii vitia (forcing the locator to pull down the house or to carry out extensive repair works), the locator loses his right to claim the rent.201

(b) Remissio mercedis

Where a cornfield was destroyed terrae motu or where a house burnt down, frui became definitely and completely impossible. As a result, the conductor was entitled to a complete release from rent liability: periculum locatoris. Such remission then, as one can put it, was a matter of juristic law (formulary remissio). It has often been argued that the emperors went further and were prepared, under certain circumstances, to grant relief to the lessee in cases where his harvest had been exceptionally poor: remissio mercedis as a matter of imperial clemency.202 Thus, we would be dealing with two different institutions: deductio ex mercede203 where the conductor has lost the enjoyment as such, remissio mercedis where he retains enjoyment of the res locata without, however, being able to obtain the yield that was

197 Views differ on what exactly vitia ex ipsa re refers to: faults which appear in the res (e.g. Watson, Obligations, p. 112), which result from the res (e.g. Molnar, ANRW, op. cit., note 143, p. 66)9), which arise in products or produce of the res (e.g. Seager, (1965) 31 SDHI 333), which could have been overcome by diligence and labour and are therefore ultimately due to negligence or imperitia on the part of the conductor (e.g. ParpagHa, op. cit., note 7, p. 32) or which occur "nell' ambito defl'attivita agricola" (Francesco Sitzia, "Considerazioni in Tema di Periculum Locatoris e di Remissio Mercedis", in: Studi in Metttoria di Giuliana d'Amelio, vol. I (1У78), pp. 333 sqq.); cf. also Ernst, (1988) 105 ZSS 540 sqq., 554 sqq. (anything that prevents cultivation of the soil without constituting a blow of fate

("schicksalhafte Einwirkitng" — vis maior).

148 But see also Ulp. D. 19, 2, 19, 1 (". . . si saltum pascuum locasti, in quo herba mala nascebatur: . . . si ignorasti, pensionem non petes") and the analysis by Ernst, (1988) 105

ZSS 554 sqq.

144 Ulp. D. 19, 2, 15, 2. According to Ernst, (1988) 105 ZSS 560 sqq., there was a significant shift in the post-classical analysis of risk-allocation; it was no longer based on the "fundamental content" of the contract of locatio conductio and the "basic concept" of vis maior (p. 559); the focus was now on the economic position of the lessee: could he reasonably be expected to pay the rent even though he had been unable to avert the incident

that had prevented him from cultivating the land?

200 Ulp. D. 19, 2, 19, 6; Alf. D. 19, 2, 30 pr., 1; Alf. D. 19. 2, 35 pr.; Alf. D. 19, 2, 27 pr.; Lab. D. 19, 2, 60 pr.

This may appear to be surprising, because aedificii vitia could well be said to arise "ex ipsa re". But obviously the lawyers did not want to draw a distinction between ruina (which we find counted amongst the typical incidents of vis maior elsewhere, too) and those actions that were necessary to prevent ruina. Cf. Kaser, (1957) 74 ZSS 176.

2112 Mayer-Maly, Locatio conductio, pp. 140 sqq.; Kaser, (1957) 74 ZSS 173 sqq.; idem, RPr

I, p. 567.

203 Cf. e.g. Alf. D. 19, 2, 27 pr.

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to be expected.204 Alternatively, it has been suggested that complete destruction of the harvest was a question of risk, whereas remissio mercedis was applied in case of a partial destruction of the harvest.205 Imperial remissio mercedis has traditionally been seen either as an instrument of social policy designed to help tenants in distress206 or as the product of administrative policy aimed at counteracting the decline of Italian agriculture.207 It has been shown, however, that the expressions, "deducere ex mercede" and "remittere mercedem", were not used with a strictly technical meaning in mind.2"8 More particularly, remissio mercedis could refer to both a complete and a partial remission of rent.2"9 Above all, it appears that imperial remissio mercedis did not go beyond the confines of the risk rule. Take, for instance, Ulp. D. 19, 2, 15, 5:

"Cum quidam dc fructuum cxiguitatc quereretur, non esse rationem eius habendam rcscripto divi Antonini continctur. item alio rescripto ita continetur: 'Novam rem desideras, ut propter vctustatem vinearum remissio tibi detur.' "21"

One may reasonably infer from this that exiguitas fructuum in itself was not a ground for remission of rent. Lack of care and insufficient cultivation are the most obvious causes of a bad crop, which must be attributed to the lessee. But even where we are dealing with the normal vagaries of agriculture, the tenant cannot claim relief: he could have acquainted himself with the quality of the soil, with the geographical situation of the farm and with the general weather patterns of that region.211 Likewise (to come back to the example discussed in D. 19, 2, 15, 5) the lessee of a wine farm cannot base his claim for remissio mercedis on the age of the vines: as a competent farmer, he should have known that vines decline in productivity after they have reached a certain age.212 Thus, even where we are dealing with exiguitas fructuum, remissio mercedis can be granted only if it was due to vis maior. Or, in risk-related terminology: a bad harvest caused by vis extraria is nothing other than an instance of impaired frui.213 Imperial remissio mercedis, then, was not a separate institution; it was an

2114 Cf. especially Maycr-Maly, loc. cit.; also e.g. Watson. Obligations, p. 110.

205 Alzon, (1966) 12 Ldfcpo 315, Molnar, ANRW, "op. cit., note 143, pp. 660 sqq., 674 sqq.

2I"' Stcphan Brassloff, Sozialpoiilische Motive in der romischeti Rechtsentwicklunq (1933), pp. 87 sq.; Hans Ankum, "Remissio Mercedis", (1972) 19 RID A 237.

2"7 Maycr-Maly. Locatio condnctio, p. 143; Kaser, (1957) 74 ZSS 174. Visky, Studi

Sattfilippo, vol. I, pp. 679 sqq., 685 sq.

2(fe Cf. e.g. Paul. D. 19, 2, 24, 5; Afr. D. 19, 2, 33 (both on remissio mercedis); Ulp. 1).

19, 2, 19, 3 (deductio ex mercede). For details, see De Neeve, (1983) 100 ZSS 298 sqq. 2119 Ulp. D. 19, 2, 15, 7 and other literary and epigraphic sources: De Neeve, (1983) 100

ZSS 301.

210 Cf. further Ulp. D. 19, 2, 15, 3; С 4, 65, 8 (Alex.).

21 Cf., in similar vein, J.A.C. Thomas, "Remissio Mercedis", in: Studi in memoria di Guido Dondtuti, vol. Ill (1973), p. 1274.

212 Molnar, ANRW, op. ci t . , note 143, p. 676; De Neeve, (1983) 100 ZSS 312; slightly

differently Thomas, Studi Donatuti, vol. Ill, p. 1274. 213 De Neeve, (1983) 100 ZSS 303.

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instance of periculum locatoris.214 It neither substantially improved the position of the tenants, nor seems to have been based on economic motives. Its advantages, as far as we can see, were mainly a matter of procedure; for to approach the Imperial chancellery was easier than to institute a formulary action.215

Bad harvests can be followed (or preceded) by abundant years. Where that was so, the lessor was entitled to refuse remissio mercedis or to recover what had been remitted. Such compensation seems to have been current practice and was discussed by Ulpianus in the following terms:

"Papinianus . . . ait, si uno anno rcmissionem quis colono dederit ob stcrilitatem,2"' deinde sequentibus annis contigit uberitas, nihil obesse domino remissionem, scd integram pcnsionem etiam cius anni quo remisit exigendam. . . . quid tamen, si novissimus erat annus stcrilis, in quo ci remiserit? vcnus dicctur et si supcriores uberes fucrunt et scit locator, non debcrc cum ad computationcm vocari."217

The Roman rules relating remissio mercedis were applied throughout the history of the ius commune;218 but it always remained doubtful

whether they had to be regarded as natural emanations of the contractual risk regime (the lessor is bound to afford frui licere; this entails that the lessee has to be able to reap the fruits of the land (percipere fructus rei); if he is prevented, on account of vis maior, from doing so, he has not received what is due to him under the contract and does therefore not have to pay the rent either)219 or as an extraordinary deviation from general principles, a special concession granted to the lessee by way of the ius "positivum" and based, ultimately, on equitable considerations.22"

214 Thomas, Studi Dotiatuti, vol. Il l , pp. 1271 sqq.; Sitzia, Studi d'Amelio, vol. I, pp. 331 sqq. (360 sq.); Dc Neeve, (1983) 100 ZSS 296 sqq.; cf. also Molnar, ANRW, op. cit., note 143, p. 661; Ernst, (1988) 105 ZSS 571 sq. (according to whom imperial remissio mercedis fitted in with the post-classical but not with the (early) classical risk regime (as espoused by Servius in Ulp. D. 19, 2, 15, 2)).

215 De Neeve, (1983) 100 ZSS 332 sqq.; cf. alsoAnkum, (1972) 19 RIDA 222 sqq., 234 sq. For alternative explanations as to why imperial rcmissio was introduced, despite being, at least substantially, in accordance with the normal risk regime, see Giannetto Longo, "Osservazioni critichc sulla disciplina giustinianca della locatio-conductio", in: Studi in onore di Biondo Biondi, vol. II (1965), pp. 293 sqq.; Sitzia, Studi d'Amelio, vol. I, pp. 347 sq., 360 sq.

21(1 On the significance of "stenlitas" cf. Ankum, (1972) 12 RIDA 229; Sitzia, Studi d'Amelio, vol. 1, pp. 346 sqq.

217D. 19, 2, 15, 4. There is no reason to assume that this would haveapplied only to sterilitas or with regard to imperial remissio mercedis. Cf. Thomas, Studi Donatuti, vol. Ill, pp. 1274 sq.;Dc Neeve, (1983) 1WZSS321 sqq.; contra, for example, Molnar, ANRW, op.

cit., note 143, p. 674; cf also Ernst, (1988) 105 ZSS 569 sq. 2I* Cf. the analysis by Ernst, (1988) 105 ZSS 573 sqq.

219Cf, for example, Donellus, Commentarii de Jure Ch'ili, Lib. XIII, Cap. VII, IX; Gluck,

vol. 17, pp. 454 sqq.

220 The basic assumption, under these circumstances, being that the risk of enjoyment of the property is, naturally, with the lessee. Cf, for example, Grotius, De jure belli ac pads. Lib. II, Cap. XII, XVIII.

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The latter view dominated, when, at the turn of the 18th and 19th centuries, Prussia,221 France and Austria codified their private law. The French and Austrian legislators saw a parallel to the equally exceptional rules of laesio enormis relating to contracts of sale and they thus determined that remissio mercedis was to be granted only if the actual yield was less than half of what could normally be expected.222 To the fathers of the BGB, of course, the idea of an equitable interference with contractual terms in cases of changed circumstances did not appeal223 and remissio mercedis thus shared the fate of laesio enormis224 and of the clausula rebus sic slantibus:225 it was not incorporated into the new code. The lessee was advised to insure himself against a typical disaster such as crop failure on account of hail; also, it was argued that he was always free to insert a clause into the individual contract reserving him the right of remissio mercedis. The liberalistic concept of the BGB collapsed, however, in the years of economic crisis following the First World War. As with both laesio enormis and clausula,226 remissio mercedis experienced a remarkable renaissance. It was reintroduced by way of special legislation227 and managed to establish itself so firmly

that in 1985 it was able to crown its career by finally gaining entrance even into the BGB.228

10. The duties of the conductor

(a) Payment of rent, cultivation; the standard of care

The conductor, obviously, had to pay the rent. The due date was usually specified by the parties;229 in case of doubt, payment postnumerando (i.e. after the lease, or a payment period that might

221§§500, 518, 561, 571 121.

222Am. 1796 sq. code civil; § 1105 ABGB. Cf. also artt. 1635 sqq., 1648 codice civile.

223Cf. Ernst, (1988) 105 ZSS 583 sq.

224Cf. supra, pp. 267 sq.

225Cf. infra, p. 579, 681. The connection between remissio mercedis and clausula was

seen, particularly clearly, by Leyser, Meditationes ad Pandectas, Spec. CCXVII, VI.

226Cf. supra, pp. 268 sqq. and infra, p. 582.

227Cf. the Pachtschutzordmmg of 9.6.1920.

22K § 593 BGB. The position under the Roman-Dutch common law in South Africa has been summed up by Solomon J in Hansen, Schrader & Co. v. Kopelowitz 1903 TS 707 (at 718 sq.) in the following words: "A lessee is entitled to remission of rent either wholly or in part where he has been prevented either entirely or to a considerable extent in making use of the property for the purposes for which it was let, by some vis maior or casus fortuitus, provided always that the loss of enjoyment of the property is the direct and immediate result of the vis maior or casus fortuitus, and is not merely indirectly or remotely connected therewith." However, these principles today only obtain in the Transvaal and Natal; in the other two provinces the legislator has curtailed the lessee's right to a remission of rent. For all details, see Kerr, Sale and Lease, pp. 222 sqq.

229 Mayer-Maly, Locatio conditctio, pp. 138 sqq.

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have been set, had come to an end) seems to have been the rule.230 Apart from that, the lex locationis frequently imposed further duties on the conductor, who, in turn, was obliged to comply with these terms.231 Tenant-farmers, in particular, were required to cultivate the lessor's land in due season and also to keep farm buildings in good repair. A clause to that effect seems to have been so common, and it tied in so well with the official policy of preventing soil-exhaustion and deterioration into wasteland, that it came to be implied as a contractual duty, irrespective of whether it had been specified in the lex locationis

or not.232 Failure to cultivate entitled the lessor to bring the actio locati and to sue his tenant for damages.233 The legal vehicle for the

recognition of such a duty of cultivation was, of course, the "ex bona fide" clause contained in the formula of the actio locati: if the tenant farmer let the land lie fallow, he did not do what, in good faith, he ought to have done under a contract of (agricultural) lease.

With regard to other objects of lease, nothing so specific was required of the conductor. In general, one could expect him at least to take good care of the lessor's object and to see to it that its condition did not deteriorate during his tenure: "Item prospicere debet conductor, ne aliquo . . . corpus deterius faciat vel fieri patiatur."234 If, in fact, the object did deteriorate and if such deterioration was due to the lessee's negligence, the lawyers were again prepared to grant the actio locati against him. For one of the earliest reported examples we may turn to Ulp. D. 19, 2, 13, 7:

"Exercitu veniente migravit conductor, dein de hospitio milites fenestras et cetera sutstulerunt. . . . Labeo autcm, si resistere potuit et non resistit, teneri ait, quae sententia vera est."235

230 This conclusion has been (and is) usually drawn from the Roman sources (e.g. texts such as Paul. D. 19, 2, 24, 2); cf. e.g. Grotius, Inleiding, III, XIX, ll;Pothier, Traite du contrat de louage, n. 134; Windscheid/Kipp, § 400, n. 12; Frier, Landlords and Tenants, p. 37; Ebrahim NO v. Hendricks 1975 (2) SA 78 (C) at 81E.

231Cf, for example, Alf. D. 19, 2. 29 (duty not to fell, bark or burn the trees in a forest, nor to allow others to do so); Ulp. D. 19, 2, 11, 1 (prohibition on the use of fire); Ulp. D. 19, 2, 11, 4 (prohibition of storing hay in the villa urbana). For all details and for an analysis of how these clauses were interpreted by the Roman lawyers, see Bruce W. Frier, "Tenant's Liability for Damage to Landlord's Property in Classical Roman Law", (1978) 95 ZSS 243 sqq.

232Gai. D. 19, 2, 25, 3: "Conductor omnia secundum legem conductionis facere debet. et ante omnia colonus curare debet, ut opera rustica suo quoque tempore faciat, ne intempestiva cultura deteriorem fundum faceret. practerca villarum curam agere debet, ut eas incorruptas habeat." On the basic duty to cultivate cf. Mayer-Maly, Locatio conductio, pp. 177, 180 sq.; Frier, (1978) 95 ZSS 240 sq.; De Neeve, Colonus, op. cit., note 101, p. 10; Ernst, (1988) 105 ZSS 554, 587 sqq.

233Cf. e.g. Paul. D. 19, 2, 24, 2. It also provided a justification for the tenant's expulsion;

cf. supra, p. 356 and Mayer-Maly, Locatio conductio, p. 215. 234 Ulp. D. 19, 2, 11, 2; cf. also Marci. D. 20, 2, 2.

231 On this text Theo Mayer-Maly, "Haftung aus Miete nach Staatsunrecht", (1957) 74 ZSS 370 sqq.; Frier, (1978) 95 ZSS 235 sqq.

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The tenant abandons the premises, because an army is approaching.236 Thus, he is not in a position to prevent the soldiers from quartering in the abandoned dwelling and from damaging it. If he could have done so, had he not run away, he is liable to the locator. Thus, it is the possibility of resistance that gives rise to the liability for damages. The tenant in question did not act as an ordinary tenant should have acted in such a situation; his conduct, though not in itself harmful, enabled the soldiers to loot the premises and was characterized by an element of blameworthiness. It is on the basis of this and similar decisions that culpa was eventually recognized as the basis of the conductor's liability.237 This fitted in well with the utility principle, since locatio conductio rei is an onerous contract, benefiting both the lessor and the lessee: ". . . sed ubi utriusque utilitas vertitur, ut in empto, ut in locato, ut in dote, ut in pignore, ut in societate, et dolus et culpa praestatur."238 Again, one has to remember that the standard of conduct required of the tenant, and with it the concept of culpa, "was determined by the bona fides relationship between landlord and tenant, therefore by a socially conditioned standard of conduct". Thus, it was in principle an objective standard, "oriented to the deed, not to the doer".239

(b) Vicarious liability?

Problems could arise in cases where the lessor's property was not damaged by the tenant himself, but by one of the slaves (or other persons) who worked for him and whom he had brought onto the premises. Could the tenant be held liable, not only for his own fault,

23(1 This must have been a (nominally) friendly army; the invasion by a hostile army was considered vis cui resisti non potest. Cf. Mayer-Maly, (1957) 74 ZSS 368 sqq.

237 Frier (1978) 95 ZSS 234 sqq.; Tafaro, Regufa, pp. 272 sqq. It has often been suggested that the conductor, under a contract of locatio conductio rei, apart from culpa. was liable, beyond culpa, for custodia: cf. Mayer-Maly, Locatio conductio, pp. 202 sqq.; Arangio-Ruiz, Responsabilita, pp. 130 sqq.; Wolfgang Hoffmann-Riem, "Die Custodia-Haftung des Sachmietcrs untersucht an Alf./PaiTl. D. 19, 2, 3(1, 2", (1969) 86 ZSS 394 sqq. This proposition is usually based on C. 4, 65, 28 (Diocl. et Max.) and Inst. Ill, 24, 5. But the former text deals with locatio conductio in general and is logically and systematically unconvincing (cf. e.g. Mayer-Maly, Locatio conductio, p. 214); and the diligentissimus paterfamilias of Ins!. Ill, 24, 5 does not necessarily have to have been grafted on to a classical custodia liability, but may have been a rhetorical accentuation of the diligentia required of a careful debtor (cf. Kaser, RPr II, p. 354). Alfcnus, in the above-mentioned timber case (D. 19, 2, 29), seems to refer to custodia (". . . an ctiam ita silvam custodire". etc.). But, first of all, we are dealing here with a discussion of liability under a specific clause contained in the lex locationis, and secondly silvam custodire in this context expresses the content of the conductor's obligation rather than a standard of liability: Geoffrey MacCormack, "Custodia and Culpa", (1972) 89 ZSS 194 sq.

;3* Ulp. D. 13, 6, 5, 2 in fine.

239 Frier, (1978) 95 ZSS 243. In modern private law negligence is also determined according to objective criteria. For details cf. e.g. Peter Hanau, in: Miinchener Komtnentar, vol. II (2nd ed., 1985), § 276, nn. 78 sqq. The reason is that private law is concerned with the protection of reasonable expectations and with a balancing of interests between two parties, rather than with an isolated adjudication of guilt.

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but also for the fault of others? One of the key fragments, in the present context, relates to a drowsy furnace-tender:24"

"Si fornicarius servus coloni ad fornaccm obdormisset et villa fuerit exusta, Neratius

scribit ex locato conventum praestare debere, si neglegens in cligendis ministeriis fuit:. . . ."2+1

The slave fell asleep, and, as a consequence, the house burnt down. The master of the slave (i.e. the conductor) is liable ex locato, but only if he himself was negligent in choosing the slave. In other words: the

conductor is not responsible for the fault of third parties, whose services he used, "to the same extent as for his own fault";242 he is not

subject to strict {= no fault) liability. For the actio locati to be successful, culpa must be attributable to him (and not only to the third party) in cases such as these too. Culpa remains the basis of the tenant's liability; it merely usually takes the form of culpa in eligendo.243 The tenant is held responsible, because it was ultimately he who endangered the house by selecting an unsuitable slave to tend the furnace. Along very similar lines runs the argument in Ulp. D. 19, 2, 11 pr.:

"Videamus, an et scrvorum culpam et quoscumque induxent praestare conductor debcat? . . . mihi ita placet, ut culpam etiam eorum quos induxit praestet suo nomine, etsi nihil convenit, si tamen culpam in inducendis admittit, quod tales habuerit vel suos vcl hospitcs: et ita Pomponius . . . probat."

Here it is not so convenient to refer to culpa in eligendo, because to bring both his family and his servants onto the estate is not really a matter of choice for the tenant. His fault seems rather to lie in the fact that he exposed the lessor's estate to people who were prone to cause damage, without properly supervising them.244 Again, however, the tenant is held responsible for his own fault.245

11. The position of the lessee

(a) His protection against the lessor

We have thus far been discussing the requirements for a contract of lease, to which obligations on the parts of both the lessor and the lessee

240 The example is not as outdated as it might seem. On Zimbabwean tobacco farms 1 have seen big barns in which the tobacco leaves are stored and dried. An open fire is kept burning in a furnace, and this furnace has to be watched by a servant (who still occasionally falls asleep).

241Ulp. D. 9. 2, 27, 9 (cf. also Coll. XII, VII, 7).

242In the words of § 278 BGB.

243Culpa in eligendo has often been regarded as spurious: cf. e.g. Wolfgang Kunkel, "Diligentia", (1925) 45 ZSS 329 sqq.; Manlio Sargenti, "Problemi della responsabilita contrattuale", (1954) 20 SDHI210; von Lubtow, Lex Aquilia, p. 160. Contra: Mayer-Maly, Locatio conductio, p. 199; Geoffrey MacCormack, "Culpa in eligendo", (1971) 18 RIDA 539; Frier, (1978) 95 ZSS 256 sqq.; Rolf Kniitcl, "Die Haftung fur Hilfspersonen im romischen Recht", (1983) 100 ZSS 399 sqq.

244Knutel, (1983) 100 ZSS 404.

245For further details about the vicarious liability of tenants and for a discussion of Proc./Ulp. D. 9, 2, 27, 11 and Coll. XII, VII, 9, see Frier, (1978) 95 ZSS 256 sqq. and Knutel, (1983) 100 ZSS 391 sqq.

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it gave rise, and when and under which circumstances the contractual relationship came to an end. A final comment has to be made concerning the position of the lessee. From the point of view of a modern observer, it was stunningly weak. Not only did the conductor not acquire ownership or a limited real right, he did not even become possessor. He was a mere detentor. As a result of this, he did not have any protection through actiones in rem; nor could he avail himself of the possessory interdicts. Thus, the lessor could at any time expel his tenant, even where the parties had agreed upon a specific term of tenancy. Alternatively, he could evict the tenant by bringing the interdicta unde vi or uti possidetis. Of course, by doing so, the lessor committed a breach of contract and unless the expulsion was justified,246 he became liable to the tenant under the actio conducti. But a mere actio in personam for damages must often have been cold comfort for somebody who had just lost his home.247

(b) Alienation of the leased property by the lessor

Most precarious, too, was the tenant's position if the lessor sold the leased property to a third party. Once ownership had been transferred, such a third party could evict the tenant, who again did not have any protection against the new owner/possessor. The latter did not even commit a breach of contract, since he did not become party to the contract of lease. Again, the only remedy the tenant could resort to, once he had been evicted, was the actio conducti against his lessor, i.e. the old owner/vendor. In order to achieve at least some indirect protection for the tenant, the lessor/vendor was required to include a special pactum in the contract of sale to the effect that the purchaser would allow the tenant to remain on the premises for the term of the lease:

"Qui fundum fruendum vel habitationem alicui locavit, si aliqua ex causa fundum vel aedes vendat, curare debet, ut apud emptorem quoque cadem pactione et colono frui et inquilino habitare liceat: alioquin prohibitus is aget cum eo ex conducto."248

But this was not really a satisfactory solution to the problem. Of course, such a pactum did not give the tenant any direct claim or defence against the purchaser.249 That would have been a direct contract

246Cf. supra, p. 356.

247It must be kept in mind, though, that this result was much less peculiar in Roman law than it would be in a modern legal system. For whatever remedy (real or personal) the lessee

might have had—ultimately everything boiled down to condemnatio pecuniaria.

248 Gai. D. 19, 2, 25, 1. C{. also С 4, 65, 9 (Alex.): "Emptori quidem fundi necesse non est stare colonum, cui prior dominus locavit, nisi ea lege emit, verum si probetur aliquo pacto consensisse, ut in eadem conductiorte maneat, quamvis sine scripto, bonae fidei iudicio ei quod placuic parere cogitur." On [he reception (and the "productive misinterpretation") of this text by the glossators, cf. E.J.H. Schrage, "Emptio (Nondum) Tollit Locatum", 1978

Actajuridica 3 sqq.

24 Wesenberg, Vertrage zugunsten Driller, pp. 41 sqq.; Мауег-Maly, Locatio conductio, pp. 43 sqq.; Genius, op. cit., note 115, pp. 35 sqq.

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in favour of a third party, which, as we know, was anathema to the Roman lawyers.250 The pactum did, however, improve the position of the tenant in so far as the purchaser had to think twice before he resorted to expulsion: for, whilst the tenant still had only his actio conducti against the lessor/vendor, the latter was now able to take recourse against the purchaser and to sue him with the actio venditi for breach of his informal promise.

(c) Emptio tollit location

The authors of the European ius commune usually summed up the position which had been handed down to them from Roman law in the maxim "emptio tollit locatum": sale breaks hire. This is as crisp and poignant as it is inaccurate. First of all, it is not the contract of sale that has any detrimental effect on the relationship between the lessor/vendor and his tenant. It is only on account of the subsequent transfer of possession and of ownership that the lessor/vendor makes it impossible for himself to carry out his obligation under the contract of lease (namely to provide uti frui praestare licere), and that he exposes the tenant to the risk of being expelled by the purchaser.251 And the second point: the contract of lease was, of course, not "broken" by either sale, transfer of ownership or any other transaction. It continued to exist and did, in fact, provide the tenant with his only remedy, the actio conducti against the lessor. Whatever transaction had taken place between the lessor and the third party did not affect the tenant's contractual position, but jeopardized his (continued) detention. Emptio tollit locatum therefore really means that the tenant was not in a position to counter the claims of any new owner of the property.

Harsh as it is, this rule, once again, cannot really be said to reflect a social bias on the part of the Roman lawyers. It was not designed as an instrument to oppress poor tenants. It was the logical consequence of certain basic and general concepts about real rights and personal rights and about their interplay and relationship. The actual cases cropping up in legal practice do not seem to have necessitated fundamental rethinking;252 the fairly roundabout chain of contractual actions (tenant against lessor/vendor—lessor/vendor against purchaser) by and large

250Cf. supra, pp. 34 sqq.

251The position of the tenant, incidentally, was jeopardized not only on account of a transfer of ownership following a contract of sale; if, for instance, the lessor granted an ususfructus over the leased property to a third party, the same problem could arise. The tenant could not prevail against the claims of the usufructuary. For further details, see Mayer-Maly, Locatio conductio, pp. 46 sqq.;J.A.C. Thomas, "The Sitting Tenant", (1973) 41 TR 35 sqq.

Mayer-Maly, Locatio conductio, pp. 45 sq.; Genius, op. cit., note 115, pp. 39 sqq.; Frier, Landlords and Tenants, pp. 64 sqq. (who discusses the "nuisance value" of expulsion).

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appears to have worked well enough to provide a not inconsiderable deterrent against heedless expulsion.253

(d) D. 43, 16, 12 in fine

"Emptio tollit locatum" became part and parcel of the European Roman common law;254 on the eve of codification it represented pandectist doctrine255 and obtained in parts of Germany. By that time, however, strong tendencies against the retention of this rule had made themselves felt. They emanated from three entirely different quarters. Firstly, the Digest itself contained a rather curious inconsistency, which appeared to improve the position of the tenant. A small clause at the end of D. 43, 16, 12 strengthened the tenant's right of uti frui during the term of the lease,256 in that it gave him the right to resist the purchaser, if the latter wanted to take possession, provided he (the tenant) did so on account of a iusta et probabilis causa. It appears plausible to accept the contract of lease as a iusta causa in this sense.257 As soon as one did so, however, one had granted the tenant the right to prevent traditio of the property from the lessor/vendor to the purchaser and thus effectively to paralyse the purchaser's right of eviction—at least in all those cases where the purchaser's right to evict was dependent upon his position as owner and where the acquisition of such a position, in turn, depended, as it usually did, on traditio.258

Digesta 43, 16, 12 in fine is a post-classical addition and does not represent classical Roman law.259 But in the days when the law of the Corpus Juris Civilis was still applicable and therefore had to be approached under systematic rather than historical auspices, the text provided—depending on the interpreter's point of view—either an awkward stumbling block or a welcome inroad into "sale breaks hire".

" Again, one must guard against evaluating Roman law, ahistorically, from a modern perspective. A claim for damages was not as "weak" as it might appear to us. First of all, all other claims ultimately gave the successful plaintiff not more than a sum of money either: omnis condemnatio pecuniana. Secondly, the way in which damages were assessed in court, particularly the iusiurandum in litem (taken by the plaintiff!), put some pressure on the defendant rather to provide restitution in kind.

4 But see Schrage, 1978 Acta Juridica 3 sqq. and now (more clearly) idem, "Zur mittelalterlichem Geschichte des Grimdsatzes 'Kauf bricht nicht Miete' ", in: E.J.H. Schrage (ed.), Das romische Recht im Mitteialter (1987), pp. 283 sqq., where he demonstrates that the glossators and commentators interpreted C. 4, 65, 9 so restrictively and recognized so many exceptions that the main rule (emptio tollit locatum) did not have much practical significance.

^Cf. e.g. Windscheid/Kipp, § 400, n. 7.

~56 Cf. further Pap. D. 43, 16, 18 pr. and Mayer-Maly, Locatio conductio, pp. 53 sqq.;

Genius, op. cit., note 115, pp. 30 sqq.

257 Cf. e.g. Christian Fnedrich Muhlenbruch, Die Lehre von der Cession der Forderungsrechte

(3rd ed., 1836), p. 279; Rudolf von Jhering, Der Besitzwille (1889), p. 441. For a thorough discussion of this problem, see Karl Ziebarth, Die Realexecution und die Obligation (1866),

passim, e.g. pp. 1 sqq., 163 sqq.

258 Cf. e.g. Jhering, op. cit., note 257, pp. 448 sqq.

59 Mayer-Maly, Locatio conductio, pp. 53 sqq.; Kaser, RPr II, p. 406; but see Thomas, (1973) 41 TR 37.

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