Joannes Voet.

A contribution to an English translation of Voet's Commentary on the pandets, comprising all the titles on purchase and sale--letting and hiring--mortgages--evictions--warranty--and allied subjects; being lib online

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Online LibraryJoannes VoetA contribution to an English translation of Voet's Commentary on the pandets, comprising all the titles on purchase and sale--letting and hiring--mortgages--evictions--warranty--and allied subjects; being lib → online text (page 24 of 69)
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Rerum Permutation e): — for the plea of Goods SOLD AND DELIVERED,
Lib, 21. tit. 3 {De Exceptimie Rti VtivliUie H Traditae). See also as to
Warranty ana the connected actions for reciprocal Restitution of the
Price and the Thing sold (^**Redhibitio "), and for recovery of the difference
in value ("Quanti minons ") in Lib. 21. tit. I {De Aediiitio Edicto^ &c.)\
as to Evictions or Judicial liecoveries, Lib, 21. tit, 2 {De Evictionibus^
(t'c); as to Interest, Fruits (Mesne Profits), Accessories, and
Default or Delay in Payment or Fulfilment ('* Mora "), in Lib, 22. tit, 1
{De Uauris et Fructibua^ &c,). See also the titles De Rei Vindicatione^
Lib. 6. tit. 1 ; De acquirendo Rerum- Dominioy Lib, 41. tit. 1 ; and
(especially as to Damages) De Verborum Obligation Lib, 45. tit, 1.]



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( 192 )



LIB. XIX. TIT. II.
LOCATI CONDUCT I.



LETTING AND HIRING.



imST, 3. 24.— WZ>. 4. 65.]

\*^ Throughout this title the person who lets or gives on hire is
called the locator ^ lessor, or letter, and sometimes landlord ; and the party
who takes on hire, the conductor, lessee, hirer, or tenant. For convenience,
colonus, which may also be rendered ** cultivator,'* has been generally
translated ** tenant" of an agricultural holding (as iiiqnilinus is of an
urban tenement), without reference to any question as to the precise
condition of coloni among the Romans. In dealing with the contract
Locatio open's, in which one jmrty gives out, and the other imdertakes the
construction of a work, the transport of goods, &c., the first is called the
locator, and the other (who would frequently with us be called *' contractor
for the work ") sometimes the conductor, sometimes the redemptor, or
redemptor opens. The word ** redemptor " is, however, also applied in Law
to a farmer of public taxes, a purcluiser of law suits, &c. — Tr.]



SUMMAKY.



1, The meaning of Locatio; —
its affinitr to purchase. — In what
it differs from a '* promise " to give
on hire ? — ^Whether a long lease is
an alienation? — Whether a long
lease is void if not made before the
tribunal of the place where the
properly, being immoveable, is
situated ? — Whether one who is
prohibited from alienating may
give a long lease ?

2. Whether leases of rural and
urban tenements must be in writing
by tJie laws of Holland and Utrecht r



3. What things mayor may not
be given on hire? — Whether the
property of another? — Whether
and when giving on hire transfers
the ** dominium " or ownership ?

4. Whether a usufructuary of the
right of habitation (liahitatio), or of
the use of a thing (usus), or a
creditor having the use of mort-
gaged property in lieu of interest
[antichresis) can give it on hire to
the owner ?

5. When the conductor {tenaiU)
may sub-let, and when not ?



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LETTING AND HIRING.



193



6. Of LoaUio operammy the
HniiNG OF Services :— What may
be 80 hired? — Generally, one has
the option of choosing whose ser-
vices he will hire ; but not in the
case of privileged mills [* * thirlage,"
dwang-Mohm] ; — ^nor can the cap-
tains of ships of war carry goods
for hire.

7. Merces, Rent or Hibb:-—
Must be certain. The amount is
often determined by usage when
not fixed by agreement.

8. The Merces should consist of
money : but sometimes of a portion
of the produce. Whp is a Colonus
partiarius, and whether he can
claim remission of rent on the
ground of unusual sterility ?

9. Locatio (giving on hire) is
made either privately or by public
auction; Things belonging to the
Fisc, the Prince, cities, and towns
are leased by public auction.
** Leases at wiU." — Leases by
curators till their wards attain
majority. — Whether such leases
expire by veuia aetatis, or by the
marriage of the ward ? — Tacit
leases. — Whether sureties and
pledges given in security for the
original lease or rents remain
boimd on a tacit renewal ? —
Whether on the tacit renewal of a
lease, a penal clause, or clause of
consent to jud^ent in the original
lease, is con8id.ered to be tacitly
renewed ?

10. For what time a tacit renewal
is considered to be made ; especially
in rural and urban tenements P

11. The law of Holland does not
recognise tacit continuations of
leases of rural and urban tene-
ments. — Not even is there a tacit
continuation when the lessor has
died or become insane, and there is
no heir existing at the expiry of
the term of the lease.

12. Authors who have written
on tacit hiring.



13. Whether on the expiry of
the term of lease the original
tenant has a preferential right to
renewal of the lease, on offering
the same rent as a new tenant P —
Whether if he be tenant of land
belonging to the FiscP — ^Whetiber
when a usufructuary is lessor, the
proprietor has a right to be pre-
ferred to a stranger as tenant, on
offering as much rent as the latter P

[The Actio Conduoti.]

14. The Actio Conduct L — ^Against
whom it is given ; and for whatP —
When for the " histrumenia ** of the
house or farm let ? — ^for repairs ? —
for liberty to remove things put up
by the tenant at hb own cost, and
the invecta et illatay at the termina-
tion of the hiring? — ^Whether for
reparation of damage sustained by
the tenant through a vice or defect
in the thing hired ?

15. When a person has sepa-
rately hired the same thing, or his
services, to two persons, whidi has
the preferential right ?

16. Cases in which a tenant may
be ejected before the expiry of the
term without his being entitled to
claim damages or id quod interest : —
when the lessor requires the thing
for his own uses : — ^in the case of
necessary repairs; — of misuse by
the tenant ; — of delay in payment
of rent ; — of the death of a usufruc-
tuary, prebendary, or fiduciary
[who has leased lands for a term
extending beyond his own right] ;
and how far a proprietor, pre-
bendary, successor, or fidecom-
missary is considered to have
confirmed a previous lease by
accepting rent ? — Of lands occupied
by and taken on lease from the
enemy in time of war, when he
has been expelled before the expiry
of the term of lease.

17. Cases in which a tenant
ejected before the expiry of the
term has a right to id quod interest,*



* Damages for both loss sustained and profit not made.
C.P. <



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194



LIB. XIX. TIT. II. LOCATI CONDUCTI.



under which is included additional
rent for which he may have sub-let
the premises. — ^The case of one
who knowingly or ignorantly has
given another's property in hire : —
of a usufructuary who has leased
out the subject of his usufruct as
his own :— of a dotal land given in
lease by a husband, and whether
on the dissolution of the marriage
the wife is bound to stand hj such
a lease? — Whether a pupil must
stand by leases made by his tutors ?
— ^Whether the legatee of the pro-
prietorship or of me usufruct of a
thing, or a purchaser, must stand
by a lease made by the testator or
vendor? — ^The law of Holland in
these cases.

18. When the ris^ht exists of
ejecting a tenant before the expiry
of the term, it must be done by
public and not by private authority ;
— and after timely previous notice,
in order that the tenant may jtro-
vide for himself elsewhere against
the next [ordinarily recog^iised]
term for moving. — ^The right of
ejecting the tenant is not prevented
by the circumstance that the very
land leased has been mortgaged to
the tenant as security against his
being deprived of it before the
expiry of the lease. — A tenant can-
not be ejected for every abuse, but
only, in the discretion of the Judge,
for those of a serious character.

19. When a ** narticular succes-
sor" is obliged by law to stand
by a lease, rent for the rest of the
term must be paid to him, though
the tenant has already paid it m
advance to the lessor.

20. Whether literary persons can
compel neighboui-s to quit, who
follow noisy occupations.

[The Actio Locati.]

21. The Actio Locati,— To and
against whom it is given ? If a
plurality of persons have taken in
hire, whether they are liable singtdi
in Bolidtimf — ^Whether an action



lies in favour of an original lessor
against a sub- lessee? — Whether
when the sub-lessee has on former
occasions paid to the first lessor ? —
Whether the sub-lessee is dis-
charged by paying to the first
lessor what he owed to the second
[his own] lessor ?

22. In this action the rent for
the whole term may be recovered,
although the tenant has quitted
before its expiry, if he did so with-
out just cause. Whether the rent,
which has been paid by a third
party for the use of the remainder
of the term, after the tenant has
quitted before its expiry, goes in
exoneration of the latter, or to the
profit of the lessor ?

23. If a tenant quits for just
cause, he does not pay rent for the
whole term, but only pro rata. —
Enumeration of just causes for
quitting: the case of alienation by
tibe lessor; — of the non-commodious
use of the thing hired ; — of incur-
sions by the enemy or brigands ; —
of just fear from the ruinous condi-
tion of the premises, pestilence {peste
violentiore\ or spectres. It is not
a just cause that the tenant has
become owner of a land more
suitable to his purposes.

24. Whether and when a remis-
sion of rent must be made on account
of imwonted sterility, discussed at
length. Whether the rent is to be
increased on account of unusual
fertility?

25. What is imwonted sterility,
is to be decided by the Judge. It
is to be estimated after taking into
consideration the whole fruits of
the entire land, and not of particu-
lar portions, when it is partly imder
^:ain and partly planted with vines.
What the mw is when the deficiency
of crop has raised the selling price.
What if an abimdant produce
lowers the price? — ^Whether when
one of neighbouring proprietors
remits rent, the rest must also do
so?



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LETTING AND HIRING.



195



26. Other causes on account of
which rent has to be remitted; —
when a tenant is ejected without
cause before the expiry of the term ;
— when the use of the thing hired
has not been given at the first, but
is afterwards offered; — when the
extent of a field has been greatly
overstated.

27. Whether wages are due when
the services hired have not been
rendered, explained with distinc-
tions: — The Roman and Modem
law, when either through his own
act or the act of the merchant, or
through being prevented by accident
the master of a ship has not con-
veyed merchandise.

28. When one has in good faith
paid rent to the enemy in occupa-
tion of territory, he is not liable to
pay it over again, if he was not
previously in notable default.

29. For what culpa in respect to
the subject hired the conductor is
responsible. More notable examples
of culpa. The case of a tenant
changmg the form of the subject
hired; — of a driver up-setting a
carriage; — a ship captain com-
mencing his voyage during a severe
storm, or not taking a pilot in
perilous places; — of a fuller ex-
changing clothes, or suffering them
to bB destroyed by rats. — The
responsibility of the conductor for
the act of a third party.

30. When a conductor is re-
sponsible for cidpa levissima; — the
case [of a person letting defective
casks; — ] of gems broken in the
setting, &c.

31. Whether and when the con-
ductor is responsible for accident ? —
If an artincer has expended his
labour on another's property, and
it has perished by accident, the
material perishes to the owner, and
the artificer loses the hire for his
labour.

32. When the term of hiring has
expired the thing must be restored



to the locator. The penalty, under
the Roman law and our law respec-
tively, for not restoring it. Whether
a tenant can dispute me title of his
lessor ? — ^Whether a third party can
intervene as owner of tine thing
hired to prevent the conductor from
restoring it to the locator ? — ^Whether
the thing hired can be retained for
the expenses laid out on it by the
party who took it on hire ?



[The Letting of Work on
(Contract.]

33. Locatia operia, what it is?—
Whether it includes the hiring of
services [operarum) ? — And how it
differs from Locatio operarum and
from Locatio usus [ret],

34. An opus [t. e., a contract for
the execution of a work] is given
in hire either in gross or by
measurement, or for hii'e to be
paid for each day. — Whether a
Hedemptor operis [i.e., the contractor
for a work] can commit its execu-
tion to another ? — And wheliier he
is personally liable for the act of
his substitute.

35. Of the approval or disap-
proval [i. e, , acceptance or rejection]
of the work. The effect of the
approval being left to the locator
himself r*. e., of the party for whom
the work is done]. What if the
redemptor [contractor] has departed
from the prescribed plan with the
consent of the locator? Whether
and how far it can be left to the
decision of a debtor himself whether
he is indebted, or to the decision of
a creditor whether he desires a
thing to be due to him.

36. Of approval by a third party ;
— Whether he can prolong the time
agreed upon for completion of the
work? What the law is if he
gives an inequitable or a fraudulent
decision; or an erroneous one
through the fraud of the contractor
himself?— If the third party will
not or cannot arbitrate, the locaiio

o2



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196



LIB. XIX. TIT. II. LOCATI CONDUCTI.



aperU is not null, but in that case
tae Judge arbitrates.

37. The risk of the opm; —
whether it pertains to the locator or
condudor explained, with distinc-
tions. — ^Whemer, after approval of
the work, the risk is with the
hoator if the opus collapses from a
defect in the work itself ? — ^Within
what time the locator may sue on
account of a defect in an opus com-
pleted but not approved ?^- Whether
when there is a plurality of con-
tractors for the same opusy they
can be sued singuli in solidum if it
be not completed, or collapses in
consequence of an inherent defect
{suo vitio) ?

38. Within what time the opus
redemptum [i. e., the work taken in
contract or hii'e] must be completed ?
Whether an action can be brought
for the id quod interest [damages,
&c.], or the work can be re-let to
another, before the expiry of the



time within which it should be
completed ?

39. Where the work {opus) must
be done ? — if done elsewnere, it is
considered as not done. — Whether
a red^emptio operis is valid when no
place has been fixed [or is ascer-
tainable] for its execution.

40. When the hire must be paid
to the contractor, if no aCTeement
has been made as to this ?— Whether
when the work has not been exe-
cuted in the manner prescribed, it
may be thrown on the hands of the
contractor? or whether the hire,
diminished pro rata^ must be paid ?
— ^Whether retention of the work
for the hire is permissible P

41. Contracts between the master
of a ship and charterers ; — between
the master and his socii nautici ; —
the mtister and the owner of the
goods; — the master of a fishing
Doat and those engaged for the
fishing.



§ 1. Letting and Hiring, " Locatio conductio,'' is in many
respects akin to purchase and sale, and depends on nearly the
same rules of Law. It is distinct from a promise to let a thing,
and from the pact that a thing is not to be hired out to any
one else than (say) Titius ; as to which see what has been said
in the Title on Purchase and Sale de contrah. empt. num. 2 ;
for letting and hiring is itself a contract [constituted not by
a solemn formula of words, but by consent Dig, ut. cit.]^ of
the class styled horuiefidei, consensual {consensu constans), and
for the exchange of use or work for hire. For just as Purchase
and Sale is contracted when the price has been agreed upon,
so also Letting and Hiring is contracted when the hire has
been agreed on. Dig. h. t. fr. 1. 2. Inst. h. t. (3. 24) pr.
So that neither writing nor any other solemnity is necessary,
provided there be proof of the contract. Inst. tit. de oblig. 1.
ex consensu (8. 23). And although a lease be contracted for a
long period, as for ten years or more, it is not therefore
necessary, according to our usages, that it be perfected before
the Judge of the place, as if the lessee thereby acquired any
jus in re,* which jt4« in re can only be created in immoveables

♦ The expression jua in re is here used in the sense of dominium or
ownership. It was, however, only used by the Boman Classical Juriflts



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LETTING AND HIRING — LONG LEASES. 197

before the local tribunal [where the land is situated], as will
be shewn in the title de acquir. rer domin. (lib. 41. tit. 1),
For, as all are agreed that no jtis in re is acquired by a lessee
by the hiring of immoveables for a moderate time, or at least
not such a one as requires for its creation the formality of
delivery of the thing leased before the tribunal of the place,
there is the more reason why neither should any jus in re be
acquu'ed to the lessee by an agreement for a longer term, lest
by the merely accidental circumstance of time, which can
neither induce nor destroy an obligation, an affair should be
withdrawn from the class of jura ad rem [i, e,, personal as dis-
tinguished from real rights. — Tr.] and transferred to that of
jura in re.* Neither does it seem doubtful that in a lease for
ten or twenty years, or for a longer term, the lessor and his
heirs may be compelled by the personal actio conducti to give
up to the lessee the use for the entire time stated in the
contract, however long ; and vice versa, that tlie lessee and his
heirs ma}'^ be compelled to remain in the tenauc)^ and pay the
rent during the whole period covered by the lease, however
long, Arg. Cod. h. t. (4. 65) fr. 10. Cod. 1. 2./r. 24. § 3. (de
sacro sanct. Eccles.) Novell. 120. cap. 3. In so far, however,
as both by the usages of Holland and the new ordinance of
Utrecht, of the year 1659, art. 19., purcliasers and other
successors must stand by a lease made by the vendor, it may
perhaps be not unreasonably contended that such long leases
do not much differ from other alienations which can only be
perfected before the Judge of the place, in this, that the tenant
who has liired a land for more than ten years could claim the
use of it to himself against the will of one who has acquired



as a contraction {or jua in re aliend, and not as involving ownership OTJiis
in rem, in which extended sense it is used by their successors and the
modem Civilians. (Austin's Jurisprudence. Tab. II. Notes,) **By the
jus civile the conductor [lessee] could only protect his right by a personalis
actio against his lessor. But the legislation of the praetors extended to
him, for his interest, the benefit of the various interdicts, and thus gave
him what was called a quasi in rem actio. The extension by the praetor
of those remedies in favour of- the conductor was precisely equivalent to
the introduction of the rule by which our Courts of Common Law gave
the lessee, who had been ousted from possession, specific restitution to his
term in the land ;" — which right (as it availed against all who could not
shew a better title than the lessor) led to the modem English action of
ejectment. — Note by Mr. Campbell to Austin'' a Jurisp. Srd Ed., p. 834.

* The expression Jura ad rem or jus ml rem is an invention of the
Civilians, not to be found in the Classical Jurists, and is equivalent to
the personalis actio of the latter (Austin^ The term jura in re is here
used (as stated in the preceding note) m the sense of jura in rem, or
"right of ownership," a ri^ht avaihng against all the world, and not in
its classical use as an eUipsis for the full term, jura in re ulieim.



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198 LIB. XIX. TIT. 11. LOCATI CONDUOTL

the dominiuvi or ownership by a particular title;* so that
otherwise [i. e., if such leases were not treated as on the same
footing as alienations and executed before the tribunal of the
place. — Tr.] a dangerous door might be opened to fraudulent
persons for leasing their immoveable property for the longest
periods, to the prejudice of creditors, whereby the lands subject
to the burden of such long leases would undoubtedly fetch a
lower price when afterwards sold by public auction [i, e., by
public authority. — Tr.]. The differing opinions of the doctors
may perhaps be reconciled by this distinction, that a private
lease for more than ten years is good as between the contract-
ing parties themselves and their heirs, but not to the prejudice
of a third party, he being a singular successor, or of creditors
who might be defrauded by so long a lease. And this is
supported by what is said by Neostadius Curiae supr. decis. 70,
and by Ant. Matthaeus paraem, Belg. jurisc. paraemia 5. n. 13,
and others, to the effect that even in sales, solemn delivery of
immoveables is, in accordance with the preamble of the Constitu-
tion of Charles prescribing such delivery, principally required
in order to prevent injury to a third party, but that, in respect
to the purchaser and vendor, a private sale and simple delivery
so operates that a vendor cannot contradict his own act or
recall the thing from the purchaser, but rather is to be repelled
by the Exceptio rei venditae et traditae. Compare as to long
leases, Groenewegen ad l. 9. Cod. h. t and ad Grotii manud*
Jurispr. Holl. lib, 8. cap. 19. num. 21 ; Sim. Van Leeuwen
Cens. For. part. 1. lib. 4. cap. 22. n. 5 ; Abr. a Wesel ad noveUa^
const. Ultrajectin. art. 19. num. 13. 14. 15, and the jurists
there cited. + Nor can I doubt but that on these principles is
to be decided the question, whether a long lease may be made
of a thing by one who is prohibited from alienating it ; as to
which see Tiraquellus de retract, gentilit. § 1. gloss. 14,
num. 81 et seqq. Sande de prohib. alienatione, part I. cap. 1.
num. 45. 46. 47.

§ 2. Moreover, according to the usages of Holland and
Utrecht, leases as well of urban as of rural tenements must
now be in writing; Statut. Ultraject. rubr. 7. art. ult.
Politica, Ordin. Holland an. 1580. art. 81. vol. 1. pi. HoU.
p. 887. And although there was formerly a prolix discus-
sion among the jurisconsults of Holland in regard to urban

• The term particular or singular successors is used in the Civil and
Scotch Law in opposition to universal successors, who succeed to a univer-
sity of rights, as to the whole succession of a defunct, the estate of a
bankrupt, &c. A siiufular or particular title is such a one as purchase,
donation, bequest, &c.

t And see ante Lib. 18. tit. 6. § 6 ; and note, page 148.



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EXECUTION OF LEASES. — WHAT MAY BE LET. 199

tenements, some insisting, with plausible reasoning, that
writing was necessary in these also, Reap, jurisc. HoU. part. 1.
Consil, 262, and others denying the necessity for this, and
holding that the Roman Law governed, Groenewegen, ad. I.
24. Cod. h. t.f states that every ground for doubt has been
removed by the Edict of the States of Holland promulgated on
the 8rd April, 1677, vol. 3. placit. pa^. 1037, whereby it is
provided that no lease of lands or other immoveable things
should be made without writing and seal ;* the lessor [in failure
of compliance with these requisites] being denied any action
for rent as well as the legal hypothec and right of retention
[lien] in the invecta et iUatay and the lessee being deprived of
all right of sueing for the use of the thing ; even though the
hiring and letting should be admitted on both sides : besides
that all parties contravening the law are liable to pecuniary fine.

§ 3. All things may be given on hire which are not
excluded from commerce, whether corporeal or incorporeal,
except that, under the Roman law, rural tenements coidd not
be hired by soldiers or curile officers for cultivation,! Dig. h. U
fr. 50. Cod. h. t. (4. 65)^. 80. 81. 85., but Groenewegen notes
that this restriction is not now observed [in Holland and
France. — Tr.] ad. d. L 81 ; and neither can rights of personal
servitudes themselves J be leased nor real servitudes already
created separately from the lands, for they cannot exist distinct
from the lands of which they are ** qualities " [i.e., things qualify-
ing or affecting the particular land, and therefore inseparable
from it. — Tr.] Dig. h. t.fr. 44. For the rest, it matters not
whether a thing belongs to the person who gives it on hire



Online LibraryJoannes VoetA contribution to an English translation of Voet's Commentary on the pandets, comprising all the titles on purchase and sale--letting and hiring--mortgages--evictions--warranty--and allied subjects; being lib → online text (page 24 of 69)