DEATH OF THE CONDUCTOR

It is difficult to obtain a complete picture from Roman legal sources concerning the impact of the death of the conductor on locatio conductio rei as this aspect was often treated merely as an ancillary issue.

The first is D 19.2.15.9, a text by Domitius Ulpianus (ad 170 - 223) where he comments on a statement made by the second-century jurist, Salvius lulianus (f AD 169).^[264] An unnamed locator let a piece of land to Titius, who died (before the end of the term of lease) and who previously had instituted a minor under tutelage as his heir. The tutor refused the inheritance on behalf of his ward and the locator let out the property to a third party at a higher price. The ward was thereafter restored to the testator's property. The reason for the restoration is not mentioned, but it does not appear from the use of the word pupillus that this occurred as a result of the natural progression of time, i.e. that the ward eventually attained majority and thus control of his assets. The text furthermore does not provide enough information to estab­lish whether the tutor's refusal of the inheritance constituted negligence, but there are suggestions in three subsequent statements that this avenue was explored by the jurists.²¹ Be that as it may, Ulpian commented in the final part of this text that if the ward were to bring a lawsuit ex conducto concerning the rented property after being restored to his inheritance, he would obtain nothing more than release from the lease since the locator had a just cause for letting it out to another, because (according to Julian) “at the time no actions were accorded against the ward”.²² The most notable point about this text is that the heir of the conductor, who had not been party to the original contract between the locator and Titius, could use the actio conducti to obtain formal release from it.

A number of additional conclusions may be drawn from this text. First, the fact that Ulpian is commenting on a passage from a jurist of the latter part of the second century AD is an indication that the issue of the hereditability of lease may already have been under consideration at this point. As previously shown, the issue of hereditability already surfaced in the statements of Cicero in the first century BC and must therefore have formed part of the locatio conductio rei from a relatively early stage in its history. Secondly, the death of the conductor (Titius) does not appear to have affected the lease. Rather, given the subject-matter of the text, the rights and duties arising from the lease appear to have formed part of the inheritance. This is in keeping with the Roman system of inheritance whereby the heir stepped into the shoes of the deceased and acquired not only his assets, but also his debts.²⁴ It was only when the inheritance was refused that the locator regarded himself as being no longer bound to fulfil his contractual duties in respect of the rented land.

21 See D 19.2.17 (Ulpian, Edict 32); D 19.2.18 (Julian, Digest 15) and D 19.2.19pr (Ulpian, Edict 32).

22 The reason for the refusal is not given and the text appears incomplete. A reason is provided by the subsequent fragment, D 19.2.16, a statement by Julian.

23 D 19.2.19.8 Ulpianus libro trigesimo secundo ad edictum: “Ex conducto actionem etiam ad heredem transire palam est.”

24 Gai Inst 2.97. Universal succession was a key feature of the Roman law of succession. The object of succession was the sum total of assets and transmissible rights.

Clearly the ward regarded him as still being bound by the lease and sued for breach of contract (ex conducto). Ulpian's view was that such a suit could only result in a formal release from the contract.

The following text (C 4.65.10) is an Imperial rescript produced during the reign of the Emperor Gordian in the first half of the third century AD and addressed to one Pomponius Sabinus.^[265] The lack of context makes it difficult to establish whether the response arose in abstracto or from a specific set of facts, but the latter seems plausible given the way in which the response is worded. The text shows that there was some confusion regarding the heredi­tability of locatio conductio which prompted an imperial response that not only perpetual leases, such as the ones that de facto conferred ownership on the tenant, but also leases of shorter duration could be inherited. In the latter case the heir of the conductor was burdened by the contract of lease for the remainder of the original term of lease. The use of the term onus contractus seems particularly apt in this case.^[266] It may well be asked why it was necessary to produce a statement of this nature when it had been settled in juristic law on the authority of both Ulpian and Paul in the mid-third century AD that the actio conducti passed to the heirs of the tenant.

The final text (C 4.65.24) is an imperial rescript produced in the last decade of the third century AD during the reign of the Emperors Diocletian and Maximian and addressed to Aurelius Antoninus.^[267] The text is somewhat condensed and a reading of the corresponding Basilica text provides valuable additional information.^[268] The text seems to be based on the following set of facts. A locator entered into a contract of lease with a conductor. The parties concluded an oral agreement. The conductor died before his term of lease had expired and one or more heirs inherited the contract and continued the pay the rent. At some point, either the heirs or the wife of the deceased conductor went into arrears and the locator sought legal advice as to who might be sued for the arrears.^[269] In the first sentence of this text a general rule that oral agree­ments of lease are as binding as written ones is restated. This is followed by a statement that a locator cannot sue the wife of the conductor although the contract may not have been reduced to writing, yet he may sue the heirs of the tenant. The text does not explain why the wife is excluded from liability, but may be found in the fact that she was never a party to the oral contract of lease nor had she probably inherited it. The final part of the text explores the circumstances in which the wife of the deceased tenant will be liable for the arrears. If it could be proven by the locator that she had assumed the role of conductor - something that could potentially be difficult to do given the orality of contracts of lease - she should be liable for the full rent (presumably for that period).^[270] Thus, like the previous imperial rescript, this text confirms that the lease transferred upon the death of the conductor to his heirs even though the contract may not have been reduced to writing.

Oneof the clearest indicationsthat contractual rights and duties passed to the conductor’s heir may be found in the Roman jurists' statements on the question of possession. According to the rules of the contract of lease, conductores did not acquire legal possession of the rented object as they merely held it under the terms of their contract as detentores. Possession remained with the owner and was exercised over the rented object via the tenant. Both D 19.2.60.1^[271] and D 41.2.40.1^[272] show that the death of a conductor did not terminate the owner's possession. The latter text, in particular, indicates that this measure was introduced on grounds of utility to prevent possession being broken.

In summary: analysis of the texts shows that the death of the conductor before the end of the term of lease did not terminate the rights and duties arising from the contract. These could be inherited by the heirs of the conductor. The matter was already the subject of juristic discussion as early as mid-second century AD (although it had been accepted as law at least as early as the first century Be) and was definitively resolved by an imperial rescript from the first half of the third century AD. The question may well be asked why the rights and duties arising from lease in particular could be inherited by the conductor’s heirs. As demonstrated earlier in this chapter, the notion of the hereditability of letting and hiring antedates the theorising about the technical meaning of obligatio and the law of obligations that occurred in classical Roman law. It may well be (although this is not confirmed by any text) that in the early stages of the history of locatio conductio rei, the payment of rent was conceived of as a debt payable to the locator and for which the heirs of the deceased conductor became liable upon his death during the course of the term of lease.

One final point requires consideration. The analysis has revealed that the death of the conductor during the course of the term of lease did not have any effect upon it. The rights and duties arising from the lease could be inherited by the tenant's heirs. On an abstract level, it may therefore be argued that the death of the conductor allowed a “substitution” of one of the parties to the lease by virtue of the rules of Roman succession. Since Roman law was gener­ally uncomfortable with such a move, it is necessary to investigate whether similar “substitutions” of the conductor during the course of the lease were allowed. In recent years, two texts from the Murecine archive of the Sulpicii, a family of moneylenders from Puteoli, have shed new light on the letting and hiring of warehouses - a form of locatio conductio rei about which not much was known.^[274] TPSulp 45 is a record of a contract of lease relating to a specific grain stall within a warehouse.^[275] The larger context of this contract is provided by other documents from the same archive. A certain Gaius Novius Eunus owned a quantity of wheat which he stored in the warehouse by renting a space from the warehouse manager. No record of this lease survives. He needed to raise money for another commercial transaction and approached a moneylender, Tiberius Iulius Evenus, for a loan. The latter agreed to finance the loan, but required security for the repayment of it. Eunus volunteered the wheat that he had stored in the grain stall as security for the loan. To ensure that the moneylender, Evenus, acquired legal possession of the wheat, he “took over” the lease relating to the grain stall in which the wheat was stored. The latter could not merely be substituted as conductor of the grain stall in the original agreement between Eunus and the warehouse manager. Rather, a new contract had to be drafted and this is recorded in TPSulp 45.

It may well be argued that this situation is so different from the scenarios mentioned above that it does not warrant comparison, but there is a basic principle that can be deduced from both. A voluntary “substitution” of the

conductor during the course of the term of lease such as the one described in TPSulp 45 did not have the same effect on the rights and duties arising from the lease as an involuntary “substitution” resulting from the death of the conductor. In the former case, Roman law did not allow the rights and duties to be transferred onto the incumbent conductor and a new lease had to be entered into.^[276] In the latter case, on the other hand, the rights and duties continued to exist unaffected and could be transferred to the tenant's heir through the operation of the Roman law of succession.

D.