Locatio-conductio. Lease & Hire

Transcription

1 Locatio-conductio Lease & Hire

2 General principles: likeliness to sale G Letting and hiring are governed by rules like those of purchase and sale. Unless the sum to be paid as hire is fixed, the contract is not complete And if the rent is to be fixed by the third party, for instance, at the sum which Titius shall consider fair, it is a question whether there is a contract of letting and hiring. Accordingly, if I give clothes to a fuller to clean or finish, or to a tailor to mend, and the remuneration is not fixed at the time, but left to our subsequent agreement, it is a question whether there is a contract of letting and hiring The same question arises if I lend a thing for use and receive in return the loan for use of another thing.

3 A few cases I agree to lease you my house in Rome, if you lease me your villa on Capri. I let you enter my house, but you do not let me use your villa. What shall I do? We agree that I shall hire you a slave for the rent established by a professional slave-rental agency. You do not pay the money. What shall I do?

4 A few cases I let you 20 gladiators for the games you are organising. We agree that for each killed slave I shall be paid 1000, for each surviving gladiators die, ten survive but you do not pay. What action shall I bring?

5 What is contracted? Hire vs. Sale. G If a band of gladiators are delivered on the following terms, that is to say, that for the performance of every one who leaves the arena safe and sound there shall be paid twenty denarii, and for every one who is killed or disabled there shall be paid one thousand denarii, it is disputed whether the contract is one of purchase and sale or of letting and hiring; but the better opinion is that the unharmed were let and hired, the killed or disabled were bought and sold, the contracts depending on contingent events, and each gladiator being the subject of a conditional hiring and a conditional sale, for it is now certain that both hiring and sale may be conditional Again, if a goldsmith agrees to make me rings of a certain weight and fashion out of his own gold for, say, two hundred denarii, it is a question whether the contract is purchase and sale or letting and hiring. Cassius says the material is bought and sold, the labour is let and hired, but most writers hold that there is only a purchase and sale. But if I provide the gold and agree to pay him for his work, the contract is settled to be a letting and hiring.

6 Locatio Conductio Locator Locator Locator rent payment services remuneration conductor conductor conductor L.-c. rei L.-c. operis L.-c. operarum

7 Types of locatio-conductio The triplicity of the contract of lease & hire: locatio conductio rei: the lessor lets a thing to the lessee, so he may use it; the lessee pays the rent locatio conductio operis: the lessor lets out a thing to the contractor, so he shall perform some action on it; for this job the contractor is paid by the lessor locatio conductio operarum: the lessor lets out his labour to the hirer, the latter pays the former.

8 CAIUS AQUILIUS IUDEX ESTO. QUOD AULUS AGERIUS NUMERIUM NEGIDIUM INSULAM LOCAVIT, QUA DE RE AGITUR, QUIDQUID OB EAM REM N. NEGIDIUM A. AGERIO DARE FACERE OPORTET EX FIDE BONA, EIUS CAIUS AQUILIUS IUDEX NEGIDIAM AULO AGERIO DECEM MILIA SESTERIUM CONDAMNATO, SI NON PARET ABSOLVITO. LET C. AQUILIUS BE JUDGE. AS THE PLAINTIFF HAS LEASED TO THE DEFENDANT A HOUSE, WHAT IS UNDER THE EXAMINATION HERE, WHATEVER BECAUSE OF THAT MATTER THE DEFENDANT OUGHT ON THE BASIS OF CIVIL LAW (OPORTET) GIVE TO OR DO TO THE PLAINTIFF ACCORDING TO THE PRINCIPLES OF GOOD FAITH, TO THAT LET THE JUDGE CONDEMN THE DEFENDANT IN FAVOUR OF THE PLAINTIFF. IF IT DOES NOT APPEAR, LET THE JUDGE ABSOLVE.

9 L-C. Rei: The Risk D Ulpianus, On the Edict, Book XXXII. (4) The 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.

10 Management of Risk D (Ulpian 32 on the Edict): Let 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 force 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 defects should arise from the very thing, 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.

11 Management of Risk D (Ulpian 32 on the Edict): Let 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 force 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 defects should arise from the very thing, the loss must be borne by the lessee; 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 lessee, 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 lessee 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.

12 Risk of the locator D Alfenus, Digest Epitomised 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 judgement must be for the amount of the interest which the tenant had in his sub-tenants not being compelled to leave the premises.

13 Locatio conductio rei: the standard of liability D : Ulpian, Edict, book 33: Where anyone rents defective containers, 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.

14 Liability of the contractor L-c. operis D , Ulpian, Edict, book 32: Celsus 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.

15 Liability of the contractor D , Ulpian, Edict 32. If 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.

16 The Post-classical View Bas , schol. ἐὰν μυόβρωτον γένηται] ἒδωκα κναφεῖ βαπτέαν ἐσθῆτα, ταύτην μύες ἔγραφον, κρατηθήσεται τῇ λοκάτη. ἔδει γὰρ αὐτὸν Φυλάττειν ἐπιμελῶς τὴν ἐσθῆτα, καὶ τρέφειν ἐκεῖνα τὰ ζῶα τὰ δυνάμενα τοὺς μύας ᾶποσοβεῖν. If it is gnawed by mice] I have given clothing to the fuller to be cleaned, and mice have gnawed it: he will be liable on locatio. He ought to have diligently guarded it, and rear these animals which are able to scare the mice away

17 The Standards of Liability Revisited

18 Praestare: to guarantee that... shall not occur dolus: fraud culpa lata: gross negligence (in every contractual situation but for mandate and deposit) culpa levis: lesser negligence: diligence of pater familias (abstract standard) diligence as in one s own affairs Custodia : keeping the thing safe (guarantee against theft & damage by third parties or animals) In post classical-times reduced to negligence in safekeeping

19 CUSTODIA Schulz: [The Debtor] was absolutely liable for certain typical accidents which were regarded as avoidable by properly watching and guarding the borrowed thing, and on the other hand he was not liable for other typical accidents which were invariably regarded as not avoidable by the exercise of care

20 CUSTODIA loan for use contractor Pledgee usufructuary vendor before transfer of the thing to the buyer because of assumed liability

21 A Penal Action a preview: D Alfenus Varus, Digest of Epitomes by Paulus, Book III. (2) Inquiry 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.

22 Locatio-conductio operarum D 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. (1) Advocates, also, are not compelled to return their fees, if they are not to blame for not trying a case.

23 You contract me to represent you at the tribunal of the Praetor of Thebais. However the hearing was cancelled because the Nileflood prevented the Praetor from arriving. What if I was delayed by the river?

24 Maritime Transport and locatio-conductio Text The risk management

25 Edictum de recepto nautae D Ulpianus, On the Edict, Book XIV. (1) The Praetor says: Unless they restore it, I will grant an action against them. The action arising from this Edict is one in factum. Let us consider, however, whether this is necessary, as the case is one in which a party can proceed by a civil action; that is to say, where any compensation is involved, an action based on leasing or hiring will lie. But where the entire ship was hired, the hirer (conductor) will be able to bring action on hire (a. Conducti), even for articles that are missing; but if the master contracted to transport the goods, an action arising from letting (a. Locati) can be brought against him; and if he received the goods gratis, Pomponius says that an action on deposit will lie. He, therefore, is surprised that a praetorian action was introduced, since civil actions are applicable; unless, as he states, it was for the purpose of making it known that the Praetor was desirous of checking the dishonesty of persons of this kind, and because in cases of leasing and hiring, a person is responsible for negligence, but in cases of deposit, only for fraud; but, under this Edict, the party who received the property is absolutely liable, even though the goods were lost, or damage resulted without his fault, unless something occurred to cause inevitable accident. Hence, Labeo holds that, where anything is lost through shipwreck, or by the violence of pirates, it is not improper to grant the owner an exception. The same must be said where force-majeure occurs in a stable, or an inn.

26 Maritime transport forms: locatio conductio rei vs. locatio conductio operis different forms of risk management lex Rhodia de iactu: The Rhodian law on jettison Edictum de recepto

27 Receptum nautarum Locator Capitan Vis Custodia maior Merchant Room at the ship Things to be Receptum transported Labeo: exceptio Receptum Vis maior Conductor Merchant Captain Custodia Locatio rei Locatio operis

28 What contract has been made? D : (Papinianus, Questions, viii)) Labeo states that a civil action in factum should be granted to the owner of merchandise against the master of a ship, where it is uncertain whether he leased the ship, or hired the services of the master, for the transportation of his goods.

29 receptum nautarum cauponarum et stabulatorium Originally guarantees safe journey (assuming of risk, liability for force majeure Hence makes sense with both forms of the contract Since Labeo: liability only for safe-keeping (custodia) Therefore reasonable only with l.-c. rei In practice still used : the parties do not know which type of contract they conclude when they agree on maritime transport.

30 A sum-up Locatio conductio ---> actio locati/conducti (civil action) Receptum ----> actio de recepto (in factum) Actio furti/de damno on the basis of the edict against shipowners, stable- and inn-keepers.

31 Saufeius Boat D Alfenus Varus, 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. He (Servius) answered that there are two kinds of leases of things, 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.

32 Saufeius Boat 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);

33 Saufeius Boat 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. The text deals with actio oneris aversi [action on the ground of the diversion of the cargo] and its concurrence with action on hire. Before writing an exegesis find out more about the former. What form of hire was contracted? Why? Analyze the Situation, explain the reasoning of the jurists.

34 Rhodian Law of jettison D Paulus, Sentences, Book II. It is provided by the Rhodian Law that where merchandise is thrown overboard for the purpose of lightening a ship, what has been lost for the benefit of all must be made up by the contribution of all. Paul On the Edict, Book XXXIV D (4) The 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. D Papinianus, Opinions, Book XIX. Where a mast, or any other part of the equipment of a ship is thrown overboard for the purpose of removing a danger common to all, contribution is required.

35 Aulus - columns Quintus - spices 1. Aulus ---(actio locati)---> Ship captain 2. Ship-captain ---(actio conducti)-->quintus =1200 (value of the cargo) loss: 1/3 of the value of the cargo 1/3 of the value of the colums = 133 1/3 1/3 of the value of the spices = 266 2/3

36 a slave captain D Paulus, On the Edict, Book XXIX. If you should appoint, as the master of your ship, someone who is under my control, an action will also lie in my favour against you if I enter into any contract with him. The same rule applies where he is owned in common by us. You will, however, be entitled to an action on lease against me, because you hired the services of my slave, as, even if he had contracted with another, you could proceed against me to obtain a transfer of the rights of action which I held on his account, just as you could have done against a freedman had you employed one; but if the services were gratuitous, you can bring an action on mandate.

37 A Case Paulus appointed Marcus slave Stichus, as captain of his ship. Marcus contracted with Stichus a freight of his purple dye from Sidon to Rome, the parties agreed that the price should be paid in Rome. The vases with the dye broke during the trip due to Stichus negligence. What actions can be brought and why? Does it make any difference if Stichus has provided a guarantee of safe-journey (receptum)?