The Same, On the Edict, Book XXXIV. What is to be done if there are passengers who have no baggage? It evidently will be more convenient to retain their baggage, if there is any; but if there is not, and the party has leased the entire ship, an action can be brought on the contract, just as in the case of passengers who have rented places on a ship; for it is perfectly just that the loss should be partially borne by those who, by the destruction of the property of others, have secured the preservation of their own merchandise. 1If the merchandise is saved, and the ship is damaged, or has lost part of her equipment, no contribution should be made, for the condition of the things provided for the use of the ship is different from that on account of which the freight has been received; since, if a blacksmith breaks an anvil or a hammer, this will not be charged to him who hired him to do the work. Where, however, the loss occurred with the consent of the passengers, or on account of their fear, it must be made good. 2Where several merchants collect different kinds of goods in the same ship, and, in addition, many passengers, both slaves and freemen, are travelling in it, and a great storm arises, and part of the cargo is necessarily thrown overboard; the question was with respect to the following point, namely, whether it was necessary for all to make good what was thrown overboard; and whether this must also be done by those who had brought on board such merchandise as did not burden the ship; as, for instance, precious stones and pearls, and if this was the case, what portion of the same must be contributed; and whether it was necessary for anything to be paid for freemen, and by what kind of an action proceedings could be instituted? It was held that all those to whose interest it was that the goods should be thrown overboard must contribute, because they owed that contribution on account of the preservation of their property, and therefore even the owner of the ship was liable for his share. The amount of the loss must be distributed in proportion to the value of the property; no appraisement can be made of the persons of freemen; and the owners of the lost property have a right to proceed on the contract for transportation against the sailor, that is the master. An agreement also arose as to whether an estimate was to be made of the clothing and rings of each person, and it was held that this should be done, and that everything should be taken into account for contribution, except what had been brought on board for the purpose of consumption, in which would be included all kinds of provisions; and there is all the more reason in this, for if, at any time during the voyage, such articles should be lacking, each one would contribute what he possessed to the common stock. 3If the ship has been ransomed from pirates Servius, Ofilius, and Labeo state that all should contribute; but with reference to what the robbers carried away, the loss must be borne by the party to whom it belonged, and no contribution should be made to him who ransomed his property. 4The share is generally contributed in accordance with the valuation of the property which is saved, and of that which is lost; and it makes no difference if that which was lost might have been sold for a higher price, since the contribution relates to loss and not to profit. With reference, however, to those things on account of which contribution must be made, the estimate should be based upon not what they had been purchased for, but upon what they could be sold for. 5No estimate should be made of slaves who are lost at sea, any more than where those who are ill die on the ship, or throw themselves overboard. 6If any of the passengers should be insolvent, the loss resulting from this will not be suffered by the master of the vessel; for a sailor is not obliged to inquire into the financial resources of everybody. 7Where property which has been thrown overboard is recovered, the necessity for contribution is at an end; but if it has already been made, then those who had paid can bring an action on the contract for transportation against the master, and he can proceed under the one for hiring, and return what he recovers. 8Any articles thrown overboard belong to the owner of the same, and do not become the property of him who obtains them, because they are not considered as abandoned.

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.

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.

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. 2Ad Dig. 19,2,22,2ROHGE, Bd. 23 (1878), Nr. 30, S. 87: Grenze zwischen Kauf- und Werkverdingung. Anfertigung und Ausstellung einer Maschine, Lieferung der Materialien.Where 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.

Ad Dig. 19,2,24ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 430: Vervollständigung absichtlich unvollständiger Vereinbarung. Arbitrium boni viri. Taxation des Geschäftsantheils eines ausgetretenen Gesellschafters.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.

The Same, On the Edict, Book XXXIV. The expression, “To be obliged to do,” has the following signification; namely, that a person will abstain from doing something which is contrary to an agreement, or will take care that it is not done.