DEATH OF THE LOCATOR

There are two legal texts in which the effect of the death of the locator prior to the end of the term of lease is discussed.^[277] The first text (D 19.2.24.5) is by Paul, a jurist who flourished during the early years of the third century AD.^[278] A piece of property had been rented out for a number of years.

The second text (D 19.2.9.1) is a variation on the theme by Paul's contem­porary, the third-century jurist Ulpian, who is quoting a jurist from the second century AD, Ulpius Marcellus.^[279] Marcellus asked whether the heir of a usufructuary, who had let out the use and enjoyment of a piece of land and died before the end of the term of lease, was liable to provide the conductor with use and enjoyment. The jurist's response to this question is consistent with the nature of usufruct as a personal servitude. Since a personal servitude terminated with the death of the usufructuary, his heir had no legal obligation to provide the conductor with use and enjoyment of the object of lease for the remainder of the term of lease.

These two texts demonstrate the consequences of the death of the locator on the rights and duties arising from the lease. If the locator were the owner of the leased object, his heirs were burdened by the rights and duties arising from the lease for the remainder of the term of lease. If these were not observed, they could be held liable by the tenant ex conducto. If the locator were not the owner of the object of lease, however, and merely rented it out by virtue of a lesser real right such as a servitude, for example, the death of the locator terminated the rights and duties arising from the lease owing to the nature of the lesser real right (a personal servitude).

It remains to be considered whether other “substitutions” of the locator during the course of the term of lease was permitted in Roman law. There is one analogous situation involving a change of the locator before the expiry of the conductor’s term of lease mentioned in the sources. It involves the sale of the object of lease before the end of the tenant's term of lease. Again, it could be argued that the two situations are too dissimilar to warrant comparison.

Death of the locator is an unforeseeable event that triggers the rules of testate or intestate succession, while the sale of the object of lease is a volun­tary commercial transaction created by the owner/locator’s conscious desire to sell a certain object. However, both scenarios essentially refer to a change in the locator during the course of the conductors term of lease.

When a tenement was sold during a term of lease, tenants seemingly had little protection against their eviction by the new owner. Despite the urban tenant's apparent lack of security of tenure, Kaser argued that a seller in such circumstances would generally have obtained a guarantee (in the form of a special pactum) from the purchaser that he would allow the tenants to remain on the leased property for the duration of the term of the lease.^[282] It would have been in the best interest of the seller to obtain such a guarantee, since failure to do so would enable the existing tenants, upon eviction by the new owner, to sue him in terms of the contract of lease for breach of his obligation uti frui praestare. The seller would in turn be able to sue the purchaser on the contract of sale (or the guarantee) if he broke his promise and decided to evict the tenants. One point not explicitly resolved in the legal texts is the effect of the transfer of ownership of the object of lease upon the existing contract of lease. The Romanist view is that the sale of the tenement effec­tively terminated any existing contract of lease. Zimmermann observes:

It is not the contract of sale that had any detrimental effect on the relationship between the lessor/vendor and his tenant. It is only on account of the subsequent transfer of possession and of ownership that the lessor/vendor makes it impos­sible for himself to carry out his obligation under the contract of lease (namely to provide uti frui praestare licere), and that he exposes the tenant to the risk of being expelled by the purchaser....

It does not take much to see that this would have produced a highly cumber­some situation in practice. The lease between the tenant and the previous owner of the tenement (the original lessor) continued regardless of the sale of the object of lease, but presumably the rent now had to be paid to the new owner. The tenant was only protected against eviction in a roundabout way. It would have been far less burdensome for the purchaser to assume the role of the locator and to maintain the existing contract of lease with the primary tenant, especially where an insula was bought as an economic investment. However, this is not supported by the legal texts, nor does it seem to have been possible given the analysis of texts provided in this chapter. Once again, the Roman position seems to have been that an involuntary “substitution” of the locator on account of death did not have any effect upon the rights and duties arising from the lease. A voluntary “substitution”, on the other hand, was impossible. The sale of the object of lease to a third party did not entitle him to take over the existing lease. The incumbent owner had to wait until the term of lease had expired before being able to enter into a new one with the existing tenant.

E.