CONCLUSION

The issue of the hereditability of locatio conductio rei has a long history. It predates the theorising about obligations in classical Roman law by more than a century and cannot be used as justification for the origin of this aspect of letting and hiring.

This chapter investigated the legal consequences of the death of one of the contracting parties on the lease. Death of the conductor does not seem to have affected the rights and duties arising from locatio conductio rei. Not only did Roman jurists make it clear that the actio conducti was available to the heirs of the tenant, but a third-century Imperial rescript resolved the issue beyond doubt. The texts demonstrate, however, that the issue of the hereditability operated within fixed parameters. Only the heirs of the deceased tenant inherited the rights and duties arising from the lease and, even where the lease had not been reduced to writing, third parties who may have had knowledge of it, but who were not party to it or did not inherit the rights and duties under the lease could not be sued for unpaid rent. It furthermore seems that the rights and duties arising from lease only transferred to the heirs because of the operation of the rules of succession. A voluntary вЂњsubstitutionвЂќ of the conductor did not lead to the transfer of the rights and duties arising from the lease. In the latter example a new contract had to be entered into.

A similar approach was taken regarding the legal consequences arising from the death of the locator during the course of the term of lease. Where the locator was the owner of the object of lease, the rights and duties arising from it were transferred to his heirs either through testate or intestate succesВsion. Where he was not the owner, but was merely entitled to rent out the object of lease by virtue of a limited real right, however, the death of the locator also terminated any rights and duties arising from the lease.

Once again the transfer of the rights and duties arising from the lease upon the death of the locator seems to have occurred on account of the operation of the law of succession. In an analogous situation where a voluntary вЂњsubstiВtutionвЂќ of the locator occurred during the course of the term of lease, the rights and duties arising from the lease were not transferred to the incumbent locator.

At the beginning of this chapter, it was proposed that an examination of the Roman jurists' treatment of the issue of the death of one of the parties to the lease may provide some insight into the relationship between law and society. Lease had such widespread application in Roman society that if Roman law was a product of the society that produced it, the jurists' treatment of this issue would take account of it. Unfortunately, this does not appear to have been the case. Roman law's treatment of death of one of the contracting parties in the context of lease in no way suggests that this matter deserved special attention. If anything, a lack of juristic attention on this topic is evident. It is also clear that Roman law dealt with the legal consequences of death of one of the contracting parties in a peculiar way (through the law of succession) that is indicative of the internal logic through which law develops irrespective of social or economic needs.

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Source: Cairns J.W., Plessis P.J. du. (eds.). Beyond Dogmatics: Law and Society in the Roman World. Edinburgh University Press,2007. - 236 p.. 2007

CONCLUSION

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