Corpus iurisprudentiae Romanae

1 Paulus, On the Edict, Book XXXIV. Leasing and hiring is a natural transaction common to all nations, and it is contracted not by words but by consent, just like purchase and sale.

2 Gaius, Daily Events, Book II. Leasing and hiring resembles purchase and sale, and is established by the same rules of law. For as purchase and sale is contracted by an agreement as to the price to be paid, so also is leasing and hiring understood to be contracted where an agreement is made as to the rent. 1Purchase and sale is held to bear such a resemblance to leasing and hiring that, in some instances, it is customary to make the inquiry as to whether the transaction is one of purchase and sale, or one of leasing and hiring; for example, if I have a contract with a goldsmith to make me some rings of a certain weight, and of a designated form, and he agrees to make them for three hundred aurei; is this a purchase and sale, or a leasing and hiring? It is held that it is only a single transaction, and is rather a purchase and sale than a leasing and hiring. If, however, I furnish him the gold, and compensation for his work is agreed upon, there is no doubt that this is a leasing and hiring.

3 Pomponius, On Sabinus, Book IX. Where a tract of land is leased, and the tenant receives the implements for its cultivation after they have been appraised, Proculus says that the intention of the parties is that the tenant should have the implements, as being purchased; just as when any property, after having been appraised, is given by way of dowry.

4 The Same, On Sabinus, Book XVI. A lease, or a precarious tenancy is made in the following terms, namely: “As long as he who leases or gives the property may be willing,” and it is terminated by the death of the owner of the property.

5 Ulpianus, On the Edict, Book XXVIII. If I rent you a lodging and afterwards remit the rent, an action on leasing and hiring will lie.

6 Gaius, On the Provincial Edict, Book X. Where anyone has rented property, he is not required to surrender what he recovered on account of said property in an action for theft.

7 Paulus, On the Edict, Book XXXII. If I rent you a house belonging to another for fifty aurei, and you rent the same house to Titius for sixty, and Titius is forbidden by the owner to occupy it; it is established that you can bring an action on hiring against me, to recover sixty aurei, because you yourself are liable to Titius for sixty.

8 Tryphoninus, Disputations, Book IX. Let us see whether neither sixty nor fifty aurei should be paid, but an amount equal to the interest the tenant has in the enjoyment of the property leased, so that the second lessor can only recover the sum that he owes to the party who rented the property from him; and since the profit of the lease is to be computed according to the amount of the higher rent, the result is that the sum recovered should be greater. The first lessor will still have a right to claim the fifty aurei which he would have collected from the first tenant, if the owner had not forbidden the last tenant to occupy the house. This is our practice.

9 Ulpianus, On the Edict, Book XXXII. If anyone rents me a house or a tract of land which has been purchased in good faith, and he is evicted from the same without fraud or negligence on his part; Pomponius says that the lessor will, nevertheless, be liable to an action on lease, in order that the lessee may be enabled to enjoy the property rented to him. It is clear that if the owner will not allow him to occupy the premises, and the lessor is ready to furnish him another house which is just as convenient, he says that it would be perfectly just for the lessor to be released from his obligation. 1What Marcellus stated in the Sixth Book of the Digest may be added, namely: “If an usufructuary rents a tract of land subject to an usufruct, for five years, and dies; his heir will not be liable to permit him to enjoy the same, any more than a lessor would be liable to a lessee after a house has been destroyed by fire. But whether the lessee will be liable to an action on the lease to collect the rent during the time he was in the enjoyment of said property, is a question asked by Marcellus; just as he would have been compelled to pay, if he had leased the services of a slave subject to an usufruct, or a lodging. He states that the better opinion is that he will be liable; and this is perfectly just. He also asks if the lessee should incur any expense on account of the land through the expectation of enjoying it for five years, whether he can recover the same. He says that he cannot do so, because he should have foreseen that this would take place. But what if the usufructuary had not leased the land to him as such, but as the owner of the same? He will certainly be liable, for he deceived the lessee; and this the Emperors Antoninus and Severus stated in a Rescript. They also stated that, where the house has been destroyed by fire, the rent must be paid for the time that the building stood. 2Julianus says in the Fifteenth Book of the Digest, that, where anyone leases land on the condition that if anything should happen to it through the exertion of irresistible force, he will be responsible for the same; he must abide by the contract. 3Where, in the terms of a lease of land, the lessee was notified to be careful about fire, and some accident caused a conflagration, he will not be compelled to make good the loss. But where damage is caused by the negligence of the lessee, for which he was responsible, he will be liable. 4The Emperor Antoninus, together with his father, stated in a Rescript with reference to a flock of goats, which a party had hired, and which had been stolen from him, “If it can be proved that the robbers drove away the goats without any fraud on your part, you will not be compelled to be responsible for the occurrence in an action on lease, and you can recover any rent for the time following the theft as being money paid which was not due.” 5Celsus also states in the Eighth Book of the Digest that want of skill should be classed with negligence. Where a party rents calves to be fed, or cloth to be repaired, or an article to be polished, he must be responsible for negligence, and whatever fault he commits through want of skill is negligence, because he rents the property in the character of an artisan. 6If you lease me a house belonging to another, which has been bequeathed or given to me, I am not liable to you for the rent in an action on lease. Let us see, however, whether anything is due for the time which has elapsed before the bequest was made. I think that the rent should be paid for that time.

10 Julianus, On Urseius Ferox, Book III. And I can properly bring an action on hiring, or for the purpose of compelling you to release me from the contract.

11 Ulpianus, On the Edict, Book XXXII. Let us see whether the tenant is liable for the negligence of his slave, and of those to whom he has sublet the property, and also to what extent he is responsible; shall he surrender the slave by way of reparation, or will he be liable in his own name; and, with reference to those to whom he has sublet the premises, must he only assign to the owner any rights of action which he may have against them, or will he be accountable just as if the negligence was his own? It is my opinion that he is responsible in his own name for the negligence of his sub-tenants, even though nothing had been agreed upon with reference to this: provided, however, he committed negligence in subletting the property to such persons, either his own slaves or tenants. Pomponius approves this in the Sixty-third Book On the Edict. 1If it was agreed upon at the time of the lease that the tenant could not have fire, and he, nevertheless, has it, he will be liable, even though an accident may cause a conflagration, because he had no right to have it. The rule is different where he is permitted to have fire which will not cause injury, for, in this instance, he is allowed to have it provided it causes no damage. 2The lessee must also be careful not to injure the property, or any right attaching to the same, nor to permit this to be done. 3Where a party hired his services for the transportation of wine from Campania, and then, a controversy having arisen between himself and another, he sealed the casks with his own seal and that of the other person, and placed the wine in a warehouse; he will be liable to an action on hiring to return the possession of the wine to his employer, without any dispute, unless the employee was guilty of negligence. 4It was agreed upon between a lessor and a lessee that hay should not be placed in a building in a city. It was, nevertheless, placed there, and a slave, having afterwards set fire to the hay, killed himself. Labeo says that the lessee is liable to an action, because he himself was the cause of the disaster, by bringing in the hay in violation of the terms of the lease.

12 Hermogenianus, Epitomes of Law, Book II. Moreover, even if some stranger had kindled the fire, the lessee would be liable for the damage caused.

13 Ulpianus, On the Edict, Book XXXII. The question is also asked, where the driver of a vehicle, while trying to pass others, overturns one, and injures or kills a slave, what course must be pursued? I think that an action on hiring will lie against him, for he should have been more careful. Moreover, a prætorian action under the Lex Aquilia will be granted him. 1If the master of a ship should receive a cargo to be taken to Minturn?, and, as his ship was unable to ascend the river, he should transfer the merchandise to another which was lost at the mouth of the river; in this instance, the first master will be liable. Labeo says that if he was not guilty of negligence, he will not be liable; but if he acted against the consent of the owner, or transferred the cargo at a time when he should not have done so, or loaded it in a vessel which was less seaworthy than his own; an action on hiring can be brought against him. 2Where the master of a ship takes it into a river without a pilot, and, a storm having arisen, he cannot manage the ship and loses it; the owners of the cargo will be entitled to an action on hiring against him. 3If anyone leases a slave for the purpose of instructing him, and takes him to a foreign country where he is either captured by the enemy, or loses his life, it is held that an action on hiring will lie, provided he did not hire him for the purpose of taking him into a foreign country. 4Julianus also says in the Eighty-sixth Book of the Digest that if a shoemaker, being dissatisfied with a boy employed by him should strike him on the neck with a last so hard as to destroy his eye, an action on hiring can be brought by his father; for although masters are permitted to inflict light punishment, still, this is immoderate. We have stated above that an action under the Lex Aquilia will also lie. Julianus denies that an action on injury can be brought, because the party did not commit the act for the purpose of causing injury, but in the course of instruction. 5Where a precious stone has been given to an artisan for the purpose of being set or engraved, and it is broken; if this was caused by any defect in the stone, an action on hiring will not lie, but where it occurred through want of skill, it can be brought. It must be added to this opinion, “unless the workman assumed the risk,” for then, even if the accident was caused by a defect, an action on hiring will lie. 6If a fuller should receive clothing to be cleaned, and mice gnaw it, he will be liable to an action on hiring, because he ought to have provided against this. If a fuller changes cloaks, and gives one to one person which belongs to another, he will be liable to an action on hiring, even though he did so ignorantly. 7A tenant left the premises on the approach of an army, and the soldiers afterwards removed the windows and other things from the house; if the tenant did not notify the owner when he left, he will be liable to an action on hiring. Labeo says that if he could have resisted, and did not do so, he will be liable; and this opinion is true. But if he could not notify the landlord, I do not think he would be liable. 8Where anyone rents measures, and a magistrate orders them to be destroyed; if they were false, Sabinus makes a distinction where the lessee was aware of the fact, and where he was not. If he knew that they were false, an action on hiring will lie, otherwise not. If the measures were correct, he will only be liable where he was to blame for the act of the Ædile. This opinion is also held by Labeo and Mela. 9Two lessees can be held liable for the entire amount involved. 10Where it is included in the contract for the hire of labor, that if the article is not completed by a certain time it may be given to someone else, the first lessee will not be liable to an action on hiring unless the article is given to someone else under the same contract; nor can this be done until the day fixed for its completion shall have passed. 11Where, after the term of his lease has elapsed, the tenant remains on the premises, not only is a renewal of the lease held to have been made, but also any pledges which have been given as security are still considered to be encumbered. This, however, is only true where another party had not encumbered the property at the time of the original lease, otherwise his fresh consent will be necessary. The same rule applies where lands have been leased to the government. What we have stated, namely, that the tenant is held to have made a new lease through the silence of both parties, must be understood to mean that where they were silent, the lease is renewed for a year, but this does not apply to ensuing years, even though the term of the lease should, in the beginning, have been five years. Moreover, if no contrary agreement was made during the second year after the end of the term of five years, the lease will be considered to be renewed for that year, as the parties are held to have consented for the year during which they kept silent. This rule must also be observed afterwards for every ensuing year. Another rule is applicable to urban estates, however, for a tenant is liable for all the time he occupies the premises, unless a certain term fixing the duration of the lease is mentioned in the written instrument.

14 The Same, On the Edict, Book LXXI. Where anyone rents land for a certain time, he remains a tenant even after it has expired; for it is understood that where an owner allows a tenant to remain on the land he leases it to him again. A contract of this kind does not require either words, or writing to establish it, but it becomes valid by mere consent. Therefore, if the owner of the property should become insane or die in the meantime, Marcellus states that it cannot be held that the lease is renewed; and this is correct.

15 The Same, On the Edict, Book XXXII. The action on hiring is granted to the lessee. 1Moreover, the action will, to a certain extent, lie in the following cases; for instance, where the party is unable to enjoy the property which he has leased, perhaps because possession of an entire field or of a portion of the same has not been given him; or a house, or a stable, or the place where flocks must be kept, has not been repaired; or where something is not furnished which was agreed upon under the terms of the lease; an action on hiring will lie. 2Let us consider whether the lessor is obliged to do anything for the lessee, where bad weather has caused the latter loss. Servius says that the lessor must indemnify the lessee for any violence which could not be resisted; as, for instance, that caused by the overflow of rivers, by birds of different kinds, or by any similar accident, or where an invasion of enemies takes place. If any defect should arise with reference to the property itself, the loss must be borne by the tenant; as, for example, where wine becomes sour, or the crops are ruined by weeds. If, however, an earthquake occurs, and destroys all the crops, the loss will not be sustained by the tenant, for he cannot be compelled to pay the rent of land in addition to the loss of the seed. Where, however, the olive crop has been spoiled by fire, or this has taken place through the unusual heat of the sun, the owner of the land must bear the loss; but if nothing extraordinary happens, the tenant will be responsible for it. The same must be said where an army that was passing by removed anything in mere wantonness. But if a field should be so ruined by an earthquake that nothing remains of it, the loss must be borne by the owner, for he is obliged to furnish the land to the lessee in such a condition that he can enjoy it. 3Where a tenant alleged that a fire had taken place on the land, and asked that the rent be remitted; it was stated in a Rescript, “If you cultivated the land, you are entitled to reasonable relief on account of the occurrence of an unexpected fire.” 4Papinianus says in the Fourth Book of Opinions that where a landlord has remitted the rent to a tenant for one year on account of sterility, and there was a great yield during the following year, the landlord has lost nothing on account of remitting the rent, and he can even claim the rent for the year which he remitted. He gave the same opinion with reference to the loss under a perpetual lease. If, however, the landlord remitted the rent for a year on account of sterility, as a gift, the same rule will apply, as this is rather an agreement than a donation. But what if he remitted the rent because of sterility during the last year of the lease? It is held to be more correct that, if the preceding years were fruitful, and the landlord was aware of the fact, he should not call the tenant to account for the one which was sterile. 5It is stated in a Rescript of the Divine Antoninus that no attention should be paid to a tenant who complains of the smallness of the crops. It is also stated in another rescript, “You are claiming something unusual, when you ask that the rent shall be remitted to you on account of the age of the vines.” 6Again, where a certain individual, in the case of the loss of a vessel, demanded what he had paid for transportation on the ground that it was a loan; it was stated in a Rescript by the Emperor Antoninus that the Imperial Procurator had not improperly demanded the freight from the owner of the vessel, since he had not performed his duty in transporting the property. This rule must likewise be observed in the case of all other persons. 7Wherever there is any ground for the remission of rent for the above-mentioned reasons, the lessee cannot recover any interest to which he may be entitled, but he will be released from the payment of rent in proportion to the time. Finally, it has been already stated that the loss of the seed must be borne by the tenant. 8It is clear that if the owner of the property does not allow the lessee to enjoy it, either because he himself has leased it, or for the reason that someone has leased the property of another acting as his agent, or as if it was his own, he must indemnify the lessee to the extent of his interest. Proculus held this opinion where a party pretended to be an agent. 9Julianus says in the Fifteenth Book of the Digest that sometimes an action on hiring is brought for the purpose of releasing the parties to the contract; as, for instance, where I leased land to Titius, and he died after appointing a ward his heir, and, as the guardian had caused the ward to reject the inheritance, I leased the said land to another party at a higher rent; and afterwards the ward obtained possession of the estate of his father. In an action on hiring, he can recover nothing more than to be discharged from liability on his contract, for I had a good reason for again leasing the property:

16 Julianus, Digest, Book XV. Since, at the time, no right of action was granted me against the ward.

17 Ulpianus, On the Edict, Book XXXII. He also says that the ward is entitled to an action against his guardian, if he ought not to have rejected the estate.

18 Julianus, Digest, Book XV. There will also be included in this action any profits which the ward could have obtained from the lease of the land.

19 Ulpianus, On the Edict, Book XXXII. But you should add to the opinion of Julianus that if I was in collusion with the guardian I would be liable to an action on hiring to the extent of the interest of the ward. 1Where anyone rents defective casks, not knowing that they are such, and the wine afterwards leaks out, he will be liable to the amount of the party’s interest, and his ignorance will not be excusable. This opinion was held by Cassius. The case is different if you rented a tract of land for pasturage in which poisonous herbs grew; for, in this instance, if any of the cattle died, or were depreciated in value, and you knew of the existence of the herbs, you must indemnify the lessee to the amount of his interest; and if you were ignorant of their existence, you cannot collect the rent. This was also held by Servius, Labeo, and Sabinus. 2We must consider where anyone leases a tract of land what implements he must furnish the lessee, and if he does not do this, whether he will be liable in an action on lease. A letter of Neratius to Aristo upon this point is extant which states that casks must be furnished the tenant, as well as a wine-press and an olive-press, equipped with ropes, and if they are lacking, the owner must provide them, and he must likewise repair a press if it is out of order. If any of the implements become damaged through the fault of the tenant, he will be liable to an action on lease. Neratius says that the tenant is also required to provide the vessels which we use for pressing the olives. If the oil is pressed out by means of baskets, the owner must furnish the press, the windlass, the baskets, the wheel, and the pulleys by which the press is raised. He must also furnish the brazen kettle in which the oil is washed with warm water, as well as the other necessary utensils for handling the oil, together With the wine-casks, which the tenant must cover with pitch for present use. All these things shall be provided in this manner, unless some other special agreement has been made. 3Where the landlord inserted in the lease that he should be entitled to a specified amount of grain at a certain price, and he refuses to accept it, and is unwilling to make any deduction from the rent, he can bring an action to recover the entire amount; but the result will be that, in the discharge of his duty, the judge must take into account the interest which the lessee had in delivering the grain, rather than in paying money by way of rent. The same must likewise be held where an action on the lease is brought. 4What action will lie where a tenant adds a door or anything else to a house? The better opinion is that held by Labeo, namely, that an action on lease will lie to permit the tenant to remove it; provided, however, that he gives security against threatened injury, lest he may render the house of less value in some respect when he removes what he added, but only that he will restore the building to its original condition. 5If a tenant should bring a metal chest into a house, and the owner subsequently makes the entrance smaller; it is a fact that an action on lease, as well as one for the production of property will lie against the owner, whether he was aware or ignorant of the fact. It is the duty of the judge to compel him to furnish a passage to enable the tenant to remove the chest, of course at the expense of the landlord. 6If anyone should lease a house for a year, and pay the rent for the entire term, and, six months afterwards, the house falls down, or is consumed by fire; Mela very properly says that he will be entitled to an action on lease for the recovery of the rent for the remaining time, but not to one for the recovery of money which was not due; for he did not pay more by mistake, but that he might be benefited with reference to the lease. The case is different where anyone leases property for ten aurei and pays fifteen; for if he paid this sum by mistake, being under the impression that he had rented the property for fifteen aurei, he will not be entitled to an action on lease, but can only sue for the recovery of the money; for there is a great deal of difference between one who pays by mistake, and one who pays the entire rent in advance. 7Where anyone makes a contract for the transportation of a woman by sea, and afterwards a child is born to her on the ship, it has been established that nothing is due on account of the child; for the transportation was not more expensive, nor did the child consume anything which was provided for the use of those navigating the vessel. 8It is clear that an action on hiring can also pass to an heir. 9Where a certain copyist leased his services and the party who had contracted for them died; the Emperors Antoninus and Severus stated the following in a Rescript, in answer to an application of the copyist: “Since, as you allege that you are not to blame for not having furnished the services for which you were hired to Antoninus Aquilia, it is only just that, if you did not receive any salary from another during the year, the contract should be carried out.” 10Papinianus states in the Fourth Book of Opinions that, where an envoy of the Emperor dies, his attendants must be paid their salaries for the remainder of their time of service; provided the said attendants were not, during that time, in the employ of others.

20 Paulus, On the Edict, Book XXXIV. A lease, like a sale, can be made under a condition. 1It cannot, however, be contracted by way of donation. 2Sometimes the lessor is not bound, but the lessee is; as, for instance, where the buyer rents a tract of land until he pays the purchase-money.

21 Javolenus, Epistles, Book XI. When I sold a tract of land, the agreement was that, until the entire amount was paid, the purchaser should lease it for a certain rent. When the money is paid, should a receipt be given for the rent? The answer was that good faith requires that what was agreed upon should be done, but that the purchaser should not be responsible to the vendor for a larger sum than the rent of the property would amount to during the time when the money was not paid.

22 Paulus, On the Edict, Book XXXIV. Moreover, where it is inserted in the contract that if the price is not paid, the property shall not be purchased, an action on lease will lie. 1As often as any work is given to be performed, it is a lease. 2Where I contract for the construction of a house, with the understanding that the person I employ is to be responsible for all of the expense, he transfers to me the ownership of all the material used, and still the transaction is a lease; for the artisan leases me his services, that is to say, the necessity for performing the labor. 3Just as in a transaction of purchase and sale it is naturally conceded that the parties can either purchase or buy something more or less, and hence mutually restrain one another, so the rule is the same in leasing and hiring.

23 Hermogenianus, Epitomes of Law, Book II. And, therefore, a contract of lease when once made cannot be rescinded under the pretext that the compensation was too low, where no fraud by the opposite party can be proved.

24 Paulus, On the Edict, Book XXXIV. Where it is included in the contract of lease that the work shall be approved by the owner, it is considered that this means in accordance with the judgment of a good citizen. The same rule is observed where recourse is to be had to the judgment of any other person whomsoever; for good faith demands that such judgment should be afforded as befits a good citizen. Judgment of this kind has reference to the quality of the work, and not to the extension of the time prescribed by the contract, unless this itself was included in the agreement. The result of which is that where the approval of the work has been obtained by the fraud of the party employed, it is of no effect, and an action on lease can be brought. 1Where a tenant rents a tract of land, the property of a subtenant is not bound to the owner, but the crops remain in the condition of a pledge, just as if the first tenant had gathered them. 2Where a house or a tract of land is rented for the term of five years, the owner can at once bring an action against the tenant, if he abandons the cultivation of the soil, or vacates the house. 3He can, also, bring suit with reference to those things which the tenant ought to do without delay; as, for instance, some labor which he should perform, like the planting of trees. 4Where a tenant is unable to enjoy the property, he can legally bring an action at once for his entire term of five years, although the owner may have allowed him to enjoy it for the remaining years, as the owner will not always be released for the reason that he permitted the tenant to enjoy the property for the second or third year. For where the tenant has been ejected under the lease, and has betaken himself to another farm, he will not be able to cultivate both, nor will he be compelled to pay the rent, and he can recover the amount of the profit which he would have obtained if he had been unmolested; for permission to enjoy the property comes too late where it is offered at a time when the tenant, being occupied with other matters, cannot take advantage of it. If the landlord prevents his enjoyment of the property, and then changes his mind, the affairs of the tenant are held to be unaltered; and the delay of a few days does not lessen the obligation to any extent. Again, a party can properly bring an action on lease, to whom certain articles have not been furnished in accordance with the agreement, or where he is prevented by the owner from enjoying the property, or where this is done by a stranger whom the owner can control. 5If a landlord rents a tract of land for several years, and charges his heir by his will to release the tenant, and the heir does not permit the latter to enjoy the property for the remainder of his term, an action on lease will lie. If he allows him to do so, but does not remit the rent, he will be liable to an action under the will.

25 Gaius, On the Provincial Edict, Book X. Where rent has been promised in general terms, to be decided by a third party, a lease is not held to have been made. But where it is stated that the amount of the rent shall be estimated by Titius, the lease will be valid subject to this condition; and if the party mentioned fixes the rent, it must, by all means, be paid in accordance with his estimate, and the lease will become operative. If, however, he refuses to do this, or is unable to fix the rent, the lease will be of no effect, just as if the amount of the rent had not been determined. 1Where a man has leased anyone a tract of land to be cultivated, or a house to be occupied, and, for some reason or other, he sells the land or the house, he must see that the purchaser permits the tenant to enjoy the land or occupy the house, in accordance with the terms of the same contract; otherwise, if he is prevented from doing so, he can bring an action on lease against the vendor. 2Where a neighbor, in building a house, cuts off the light from a room, the landlord will be liable to the tenant. There is certainly no doubt that the tenant can give up the lease in a case of this kind; and also, where an action is brought against him for the rent, compensation must be taken into account. We understand that the same rule applies where the landlord does not repair any doors or windows which may have been damaged or destroyed. 3The lessee should do everything in accordance with the terms of the lease, and, above all things, he should be careful to perform the labors on the farm at the proper time, lest cultivation out of season cause the soil to be deteriorated. He should also take care of the buildings in order to prevent them from being damaged. 4He will also be considered to be to blame if his neighbor, through enmity, cuts down the trees. 5If he himself cuts them down, he will not only be liable to an action on lease, but also to those under the Lex Aquilia and the Law of the Twelve Tables with reference to cutting trees by stealth, and to the interdict based on a violent or clandestine act. It is, undoubtedly, a part of the duty of the judge who hears the case on lease, to see that the lessor abandons the other actions. 6Superior force, which the Greeks call “Divine Power,” should not cause any loss to the tenant where the crops are injured in an unusual degree, otherwise, he must endure any moderate damage with untroubled mind, where he is not deprived of any extraordinary profit. It is evident, however, that we are speaking of a tenant who pays his rent in cash; on the other hand, where he divides the crops, as in the case of a partnership, he must also share the loss and gain with the owner of the land. 7Where anyone takes charge of the transportation of a column, and it is broken when it is raised, or while it is being carried, or when it is unloaded, he will be responsible for the damage, where this happened through his fault, or that of any of the workmen whom he employs. He will not be to blame, however, if all precautions are taken which a very diligent and careful man should take. We, of course, understand that the same rule applies where anyone agrees to transport casks or lumber, as well as other things which are to be conveyed from one place to another. 8If a fuller or a tailor should lose clothing, and satisfy the owner of the same, the latter must assign to him his rights of action to recover the property.

26 Ulpianus, Disputations, Book II. Where anyone has hired his services to two employers at the same time, he must satisfy the one who has first employed him.

27 Alfenus, Digest, Book II. It is not always necessary to make a deduction from the rent in the case where tenants have been put to a little inconvenience, with reference to a part of their lodgings; for the tenant is in such a position that if anything should fall on the building, and by reason of this the owner be compelled to demolish a portion of the same, he ought to bear the slight inconvenience resulting therefrom; but, in doing so, the owner must not open that part of the house of which the tenant is accustomed to make the most use. 1Again, the question is asked, if a tenant should leave on account of fear, will he be obliged to pay the rent, or not? The answer is that, if he had good reason to be afraid, even though there was not actually any danger, he will not owe the rent; but if there was no just cause for fear, it will still be due.

28 Labeo, Later Epitomes by Javolenus, Book IV. Where, however, the tenant still makes use of the house, he must pay the rent. 1Labeo thinks that the rent is due, even if the house is out of repair. 2The same rule of law applies where the tenant has the power to lease the house and pay the rent. If, however, the landlord does not give the tenant authority to rent the house in which he lives, and he, nevertheless, does rent it, Labeo thinks that he must indemnify him for all that he has paid without fraudulent intent. But if the tenant was occupying the house gratuitously, a deduction should be made in proportion to the unexpired time of the lease.

29 Alfenus, Digest, Book VII. The following was inserted in the contract of a lease: “The lessee shall neither cut down trees, nor girdle nor burn them, nor permit anyone to girdle, cut down, or burn the same.” The question arose whether the lessee should prevent anyone whom he saw doing something of this kind, or whether he should keep such a watch upon the trees that no one could do this. I answered that the word “permit” includes both significations, but that the lessor seemed to have intended that the lessee should not only prevent anyone whom he saw cutting down trees, but should also be careful and take such precautions that no one could cut them down.

30 The Same, Digest of Epitomes by Paulus, Book III. A man who rented a house for thirty aurei, sub-let the separate rooms on such terms that he collected forty for all of them. The owner of the building demolished it, because he said that it was about to fall down. The question arose what the amount of damages should be, and whether the party who rented the entire house could bring an action on lease. The answer was that if the building was in such a bad condition that it was necessary to tear it down, an estimate should be made, and the damages assessed in proportion to the amount for which the owner had leased the premises, and that the time when the tenants were unable to occupy them should also be taken into consideration. If, however, it was not necessary to demolish the house, but the owner did so because he wished to build a better one, the judgment must be for the amount of the interest which the tenant had in his sub-tenants not being compelled to leave the premises. 1An ædile rented baths in a certain town for the term of a year, in order that they might be used gratuitously by the citizens. The baths having been destroyed by fire after three months, it was held that an action on lease could be brought against the proprietor of the baths, that a part of the price should be refunded in proportion to the time during which the baths were not available. 2Inquiry was made as to the action to be brought where a man hired mules to be loaded with a certain weight, and he who hired them injured them with heavier loads. The answer was that the owner could legally proceed either under the Lex Aquilia or in an action on lease, but that, under the Lex Aquilia, he could only sue the party who had driven the mules at the time; but, by an action on lease, he could properly proceed against him who hired them, even if someone else had injured them. 3A man who contracted for the building of a house stated in the agreement: “I will furnish the stone necessary for the work, and the owner shall pay to the contractor seven sesterces for each foot, and as much for the stone as for the labor.” The question arose whether the work must be measured before, or after it was completed. The answer was that it should be measured while it was still unfinished. 4A tenant received a house under the condition that he would return it uninjured, except so far as damage might result through violence or age. A slave of the tenant burnt the house, but not accidentally. The opinion was given that this kind of violence would not appear to have been excepted; and that it was not agreed that the tenant should not be responsible if a slave burnt it, but that both the parties intended that violence exerted by strangers should be excepted.

31 The Same, Epitomes of the Digest by Paulus, Book V. Several persons loaded the ship of Saufeius with grain without separating it; Saufeius delivered to one of them his grain out of the common heap, and the vessel was afterwards lost. The question arose whether the others could bring an action against the master of the ship with reference to their share of the grain on the ground that he had diverted the cargo. The answer was that there are two kinds of leases of property, one of them where the article must itself be returned, as where clothing is entrusted to a fuller to be cleaned, or where something of the same kind must be given back; as, for instance, where a mass of silver is given to a workman to be made into vases, or gold is given to be made into rings. In the first instance, the property still belongs to the owner; in the second, he becomes the creditor for its value. The same rule of law applies to deposits, for where a party has deposited a sum of money without having enclosed it in anything, or sealed it up, but simply after counting it, the party with whom it is left is not bound to do anything but repay the same amount of money. In accordance with this, the grain seems to have become the property of Saufeius, and he very properly gave up a portion of it. If, however, the grain of each of the parties had been separately enclosed by means of boards, or in sacks, or in casks, so that what belonged to each could be distinguished, it could not be changed; for then the owner of the wheat which the master of the ship had delivered could bring an action for its recovery, and, therefore, the authorities do not approve of actions on the ground of the diversion of the cargo in this case, because the merchandise which was delivered to the master was either all of the same kind and at once became his, and the owner became his creditor (for it is not held that there was a diversion of the cargo since it became the property of the master); or the identical article which was delivered must be restored, and in this instance, an action for theft would lie against the master, and hence an action on the ground of the diversion of the cargo would be superfluous. Where, however, the merchandise was delivered with the understanding that the same kind should be returned, the party receiving it would only be liable for negligence, as liability for negligence exists where the contract is made for the benefit of both parties, and no negligence can exist where the master returned to one of the owners a portion of the grain, since it was necessary for him to deliver his share to one of them before the others, even though he would be in a better condition than the others by his doing so.

32 Julianus, On Minicius, Book IV. A man who leased a tract of land to be cultivated for a term of several years died, and devised the said land. Cassius denied that the tenant could be compelled to cultivate the land, because the heir had no interest in it. If, however, the tenant desired to cultivate it, and was prevented from doing so by the party to whom the land had been left, he would be entitled to an action against the heir, and the loss must be borne by the heir; just as where anyone sells something and bequeaths it to another before he delivers it; for, in this instance, the heir will be liable both to the purchaser and to the legatee.

33 Africanus, Questions, Book VIII. Where a tract of land which you have leased to me is confiscated, you will be liable to an action on lease to permit me to enjoy it, even though it is not your fault that I cannot do so; just as it is held if you contract for the building of a house, and the ground on which it is to be erected is destroyed, you will, nevertheless, be liable. For if you should sell me a tract of land, and it should be confiscated before delivery, you will be liable to an action on purchase; and this is true to the extent that you must return the price, and not that you will be obliged to indemnify me for anything more than my interest in having the vacant tract of land delivered to me. Hence, I think that the rule also applies to a lease, so that you must return the rent that I have paid for the time I was not able to enjoy the property, but you cannot be compelled to do this by any other action on lease; for if your tenant is prevented from enjoying the land either by you, or by another party whom you have the power to hinder from doing so, you must indemnify him to the extent of his interest in enjoying the property, and in this his profit is also included. If, however, he is hindered by anyone whom you cannot control, on account of his superior force or authority, you will not be liable to him for anything but to release the rent which has not been paid, or to refund that which has been paid.

34 Gaius, On the Provincial Edict, Book X. Just as if this had happened through an attack of robbers.

35 Africanus, Questions, Book VIII. This distinction corresponds to that which was introduced by Servius, and has been approved by almost all authorities; that is to say, where a landlord prevents a tenant from enjoying the use of the house by making repairs upon it, it must be considered whether or not the house was demolished through necessity; for what difference would it make whether the lessor of a building is compelled to repair it on account of its age, or where the lessor of land is compelled to endure injury from a party whom he cannot prevent from inflicting it? It must be understood, however, that we make use of this distinction with reference to a person who has leased his land to be enjoyed, and has transacted the business in good faith; and not to one who has fraudulently leased land belonging to another and is unable to resist the owner of the same, when he prevents the tenant from enjoying it. 1When we hold land in common, and it is agreed upon between us that we shall have the renting of the same during alternate years for a certain amount, and you, when your year has expired, purposely destroy the crop of the ensuing year, I can proceed against you by means of two actions, one based on ownership, and the other on the ground of a lease; for my share is involved in the action on ownership, and yours only in the action on lease. Then, it is asked, will it not be the fact that, so far as my share is concerned, the loss sustained by me on your account must be made good by means of an action in partition? This opinion is correct, but, nevertheless, I think that that of Servius is also true, namely: “That where I make use of either one of the above-named actions the other will be destroyed.” This question we may ask more simply, if it is suggested that, where it has been agreed upon between two parties who have separate tracts of land belonging to them, each shall have a right to lease the land of the other, with the understanding that the crops shall be delivered by way of rent.

36 Florentinus, Institutes, Book VII. Where work is to be done under a contract, it is at the risk of the contractor until it is accepted. But, indeed, if it has been contracted for to be paid by feet or measure, it will be at the risk of the contractor, until it is measured; and in both instances the risk must be borne by the employer if he was to blame for the work not being accepted or measured. If, however, the work should be destroyed by superior force, before being accepted, it will be at the risk of the employer, unless some other agreement has been made. The contractor is not obliged to be responsible to the employer for anything more than he could have accomplished by his care and labor.

37 Javolenus, On Cassius, Book VIII. If a work is destroyed by superior force before it has been accepted by the employer, he must bear the loss, if the work was of such a character that he should have accepted it.

38 Paulus, Rules. A man who has hired his services is entitled to compensation for the entire time for which he was employed, if he was not to blame for failing to do the work. 1Advocates, also, are not compelled to return their fees, if they are not to blame for not trying a case.

39 Ulpianus, On the Edict, Book II. A lease does not usually change the ownership of property.

40 Gaius, On the Provincial Edict, Book V. He who receives compensation for the safe-keeping of any property is responsible for the custody of the same.

41 Ulpianus, On the Edict, Book V. Julianus, however, says that an action cannot be brought against one person for an injury committed by another; for by what degree of care can he prevent unlawful damage from being caused by someone else? Marcellus, however, says that this can sometimes be done where the party could have taken such care of the property that it could not have been injured, or where he himself, having charge of it, committed the damage. This opinion of Marcellus should be approved.

42 Paulus, On the Edict, Book XIII. If you steal a slave that has been leased to you, one of two actions is available against you: the action on lease, and the one for theft.

43 The Same, On the Edict, Book XXI. If you wound a slave that has been leased to you, the action under the Lex Aquilia or the one on lease can be brought on account of the wound, but the plaintiff must be content with one or the other of these; and this is a part of the duty of the judge before whom proceedings based on the lease are instituted.

44 Ulpianus, On the Edict, Book VII. No one can lease a servitude.

45 Paulus, On the Edict, Book XXII. If I lease you a house and my slaves cause you any damage, or commit a theft, I am not liable to you on the lease, but in a noxal action. 1If I lease you a slave to be employed in your shop, and he commits a theft, it may be doubted whether an action on hiring will be sufficient in this instance; for it is far from being in accordance with the good faith implied by the contract that you should suffer any loss on account of the property which you have hired; or should it be stated that, in addition to the right of action based on the hiring, there is also one on the ground of the crime of theft, and that this offence gives rise to a peculiar right of action of its own? This is the better opinion.

46 Ulpianus, On the Edict, Book LXIX. Where anyone leases property for a coin of trifling value the lease is void, for this resembles a donation.

47 Marcellus, Digest, Book VI. When it is ascertained that a purchaser or a lessee has sold or leased the property to several other parties, in such a way that each of them is responsible for the entire amount, they can only be compelled to pay their shares where it is established that they are all solvent; although, perhaps, it would be more just that, even where they are all solvent, the claimant should not be deprived of the right of suing any one of them that he wishes, if he does not refuse to assign the rights of action which he has against the others.

48 The Same, Digest, Book VIII. If I contract with anyone to perform some labor which I myself have agreed to do, it is settled that I will be entitled to an action on lease against him. 1Where a party refuses to restore to me a slave, or any other movable property which I have leased to him, judgment shall be rendered against him for the amount of damages sworn to by me in court.

49 Modestinus, Excuses, Book VI. Where guardians or curators have been appointed, they are forbidden to rent any property belonging to the Emperor before they have rendered their accounts. And if anyone, concealing the fact, should appear for the purpose of renting lands belonging to the Emperor, he shall be punished as a forger. This decision the Emperor Severus also sanctioned. 1As a result of this, persons who are administering a guardianship or a curatorship are forbidden to rent anything from the Treasury.

50 The Same, Pandects, Book X. Where anyone ignorantly leases property to a soldier, believing him to be a civilian, it is settled that he can collect the rent from him, for since he was not aware that he was a soldier, he is not guilty of violation of military discipline.

51 Javolenus, Epistles, Book XI. I leased a tract of land under the condition that, if it was not cultivated in compliance with the terms of the lease, I should have the right to lease it again to another, and that the tenant should indemnify me for any loss which I might sustain. In this instance, it was not agreed that, if I rented the land for more money, the excess should be paid to you; and, as no one was cultivating the land, I, nevertheless, leased it for more. I ask whether I should give the amount of the excess to the first lessee. The answer was that, in obligations of this kind, we should pay particular attention to what was agreed upon between the parties. It is held, however, that in this instance, it was tacitly agreed that nothing should be paid if the land was rented for more money; that is to say, this provision was inserted in the agreement only for the benefit of the lessor. 1I hired work to be done under the condition of paying a certain amount every day for said work to the party employed. The work being badly done, can I bring an action against him on the lease? The answer was, if you hired this work to be done on condition that the party employed to do it should be liable to you for its being properly performed, even though it was agreed upon that a certain sum of money should be paid for each piece of work, the contractor will still be responsible to you if the work was badly done. For, indeed, it makes no difference whether the work is performed for one price, or whether payment is made for each portion of the same, provided the whole of it must be performed by the contractor. Therefore, an action on lease can be brought against him who performed the work badly, unless payment was arranged for separate portions of it, so that it might be performed according to the approval of the owner; for then the contractor is not considered to guarantee to the owner the excellence of the entire work.

52 Pomponius, On Quintus Mucius, Book XXXI. If I lease you a tract of land for ten aurei, and you think that I am leasing it to you for five, the contract is void. If, however, I think that I am leasing it to you for less, and you think that you are leasing it for more, the lease will not be for a larger sum than I thought that it was.

53 Papinianus, Opinions, Book XI. Where a surety appears for a tenant of public lands before an officer having charge of the same, and which the said officer has leased to the tenant, he will not be liable to the government; but the crops, in this instance, will remain as a pledge.

54 Paulus, Opinions, Book V. I ask whether a surety who appears for a lessee will also be liable for interest on rent which has not been paid, or whether he can take advantage of the constitutions by which it is provided that those who pay money for others are only obliged to be responsible for the principal that is due. Paulus answered that even if the surety bound himself for everything relating to the lease, he also will be obliged to pay interest; just as the tenant is compelled to do, where he is in default for the payment of the rent. For, in contracts made in good faith, even though interest may not so much arise from the obligation, as it is dependent upon the decision of the judge, still, where the surety renders himself responsible for everything relating to the contract of the lessee, it seems but just that he also should bear the burden of interest, if he obligated himself as follows: “Do you bind yourself to the amount of a judgment justly rendered?” Or in these words: “Do you promise to indemnify me?” 1It was agreed by the lessor and the lessee of a tract of land that the tenant, Seius, should not be ejected against his will during the term of the lease, and if he was ejected, the lessor, Titius, should pay him a penalty of ten aurei; or, if the lessee, Seius, should desire to withdraw during the term of the lease, he should be compelled to pay ten aurei to the lessor, Titius, and the parties reciprocally stipulated with reference to this. I ask, as the lessee, Seius, did not pay the rent for two consecutive years, whether he could be ejected without Titius fearing to incur the penalty. Paulus answered that although nothing was stated in the penal stipulation with reference to the payment of the rent, still, it is probable that it was agreed that the tenant should not be ejected during the term of the lease, if he paid the rent, and cultivated the land, as he should do; so that if he understood to bring suit for the penalty, and had not paid the rent, the lessor could avail himself of an exception on the ground of bad faith. 2Paulus gave it as his opinion that, where anyone assigns a slave to his tenant after estimating his value, he will be at the risk of the tenant; and therefore, if he should die, his value, as appraised, must be made good by the heir of the tenant.

55 The Same, Sentences, Book II. Where a granary has been broken into and plundered, the owner will not be liable, unless he was charged with the safe-keeping of its contents. But the slaves of the person with whom the contract was made can be demanded for the purpose of being tortured, on account of the knowledge of the building which they possess. 1Where a tract of land is leased and the lessee makes some addition to the same, by means of his labor, which is either necessary or useful, or erects a building, or makes some improvement which had not been agreed upon, he can proceed by an action on lease against the owner of the property for the recovery of the amount which he has expended. 2Where a lessee, contrary to the provisions of his lease, abandons the land without just or reasonable cause before his term has expired, he can be sued in an action on lease for the payment of the rent for the entire term, and for the indemnification of the lessor to the extent of his interest.

56 The Same, On the Duties of the Prefect of the Night-Watch. Where the proprietors of magazines and warehouses desire them to be opened on account of the nonappearance of the lessees, and their failure to pay the rent during the term of the lease, and wish to have an inventory of the contents made by the public officials whose duty it is to do so, they shall be heard. The time to be considered in cases of this kind should be two years.

57 Javolenus, On the Last Works of Labeo, Book IX. A man who owned a house leased an empty space adjoining the same to his next neighbor. The said neighbor, while building upon his own ground, threw the dirt for the excavation upon the said vacant space, and heaped it up higher than the stone foundation of the lessor; and the earth, having become wet by constant rains, weakened the wall of the lessor with moisture to such an extent that the building collapsed. Labeo says that only an action on lease will lie, because it was not the heaping up of the earth itself, but the moisture arising therefrom that subsequently caused the injury, but that an action on the ground of unlawful damage will only lie where the damage has not been produced by some outside cause. I approve this opinion.

58 Labeo, Later Epitomes by Javolenus, Book IV. You leased an entire house for a gross sum, and then sold it under condition that the rent of the tenants should belong to the purchaser. Even though the lessee may have sub-let the said house for a larger amount, it, nevertheless, will belong to the purchaser, because the lessee owed it to you. 1It was stated in a contract for labor that it should be performed before a certain day, and then, if this was not done, the lessee should be liable to an amount equal to the interest of the lessor. I think that this obligation is contracted to the extent that a good citizen would fix the damages with reference to the time; because the intention of the parties seems to have been that the work should be completed within the time during which it could be done. 2A certain individual rented a bath in a town for forty drachmæ a month, and it was agreed that he should be furnished a hundred drachmæ for the repair of the furnace, the pipes, and other portions of the bath, and the lessee demanded the hundred drachmæ. I think that they were owing to him, if he gave security that the money would be expended for repairs.

59 Javolenus, On the Lost Works of Labeo, Book V. Marcius was employed to build a house by Flaccus. After the work was partly done the building was destroyed by an earthquake. Massurius Sabinus says that if the accident took place through some force of nature, as for instance, an earthquake, Flaccus must assume the risk.

60 Labeo, Last Epitomes by Javolenus, Book V. Where a house is rented for several years, the lessor must not only permit the lessee to occupy it from the Kalends of July of each year, but also to sub-let the same during the term of his lease, if he desires to do so. Therefore, if the said house remains in a dilapidated condition from the Kalends of January to the Kalends of July, so that no one can occupy it, and it cannot be shown to anyone; the lessee will not be obliged to pay any rent to the lessor. Nor, indeed, can he be compelled to occupy the house, if it has been repaired after the Kalends of July, unless the lessor was ready to furnish him another house suitable for his residence. 1I think that the heir of a lessee, even though he may not be a tenant, will, nevertheless, hold possession for the owner of the property. 2If a fuller loses your clothing, and you have the means to recover it, but do not wish to avail yourself of them; you can, nevertheless, bring an action on lease against the fuller. The judge, however, must decide whether it will not be better for you to bring an action against the thief and recover your property from him; of course, at the expense of the fuller. But if he should consider this to be impossible, he must then render judgment in your favor against the fuller, and compel you to assign your rights of action to him. 3An agreement having been entered into, a house was contracted for under the condition that it should be subject to the approval or disapproval of the owner, or his heir. The contractor, with the consent of the other party, made certain changes in the work. I have it as My opinion that the work did not seem to have been performed in compliance with the terms of the contract, but since the changes had been made with the consent of the owner, the contractor should be released. 4I directed you to make an estimate of the amount you would ask to build a house, and you answered me that you would build it for two hundred aurei. I gave you the contract for a certain sum, and I afterwards ascertained that the house could not be built for less than three hundred aurei. I had already paid you a hundred, a part of which you had expended, and I then forbade you to proceed with the work. I held that if you continued to do the work, I would be entitled to an action on lease against you, to compel you to refund to me the remainder of the money. 5You remove a harvest, while the tenant is looking on, when you are aware that it belongs to someone else. Labeo says that the owner can sue you for the grain, and that the tenant has a right, under his lease, to bring an action against the owner to compel him to do so. 6The lessor of a warehouse had posted upon it that he would not receive deposits of gold, silver, or jewels at his own risk, and afterwards he, knowingly, allowed articles of this kind to be left in said warehouse. Hence, I stated that he would be liable to you just as if the clause in the notice had been erased. 7You employed a slave of mine who was a muleteer, and you lost a mule through his negligence. If he hired himself, I hold that I must make good the damage to you on the ground of property employed for my benefit, but only to the extent of the peculium of the slave. If, however, I myself leased him, I will not be responsible to you for anything else than fraud and negligence. But if you leased a muleteer from me without the designation of his person, and I deliver to you the one by whose negligence the animal perished, I say that I must be responsible to you for negligence, because I selected the slave who caused you loss of this kind. 8You hired a vehicle to carry your baggage and make a journey, and when a bridge was crossed, and the keeper demanded toll, the question arose whether the driver should pay toll for his carriage alone. I think that, if he knew when he hired his vehicle that he would cross the bridge, he should pay the toll. 9I hold that the lessee of an entire warehouse should not be responsible to the proprietor of the same for the custody of property, for which the proprietor himself should be liable to those who rented of him, unless it was otherwise agreed upon in the lease.

61 Scævola, Digest, Book VII. A tenant, although it was not included in the terms of his lease that he should plant vines, nevertheless, did plant them on the land, and, on account of the yield of the same, the field was rented for ten aurei more every year. The question arose whether the owner could sue the tenant, who had been ejected from the land for non-payment of rent, on the ground that rent was due; or whether he could recover the expense profitably incurred by planting the vines where an exception on the ground of fraud was filed. The answer was that he could either recover the expense, or that he would be liable for nothing more. 1A man leased for a certain sum a vessel to sail from the province of Cyrene to Aquileia, it being loaded with three thousand measures of oil and eight thousand bushels of grain. It happened, however, that the vessel, while loaded, was detained in said province for nine months, and the cargo was confiscated. The question arose whether the freight agreed upon could be collected by the owner of the vessel from the party who hired it, in accordance with the contract. The answer was that, in conformity to the facts stated, this could be done.

62 Labeo, Probabilities, Book I. If you make a contract for digging a canal, and complete it, and, before it is accepted, it is destroyed by accident, the risk will be yours. Paulus says that, even if the accident occurred through some fault of the ground, the party hiring the work to be done must be responsible; but if it happened because the work was defective, you must bear the loss.