Historical development
The early history of locatio conductio is obscured by the scarcity of sources.[1728] It has been plausibly argued, however, that from early on the letting and hiring of property, of services and of work must have occurred,11 albeit possibly on a relatively small scale.
Such transactions were at first not enforceable per se, but the contract verbis (stipulatio) was, of course, flexible enough to accommodate them just as any other arrangement. Some time during the course of the Republic, the praetor decided to enforce a purely consensual act and to grant a iudicium locati conducti.12 Whether this first case involved a contract of lease, of services or for work, we do not know. The iudicium, in any event, contained a demonstratio which defined the facts on which the action rested, and the core feature of this definition consisted of the words "locavit" and "conduxit[1729] [1730]'. Furthermore, the formula, which came to be incorporated into the edict, contained the ex bona fide clause. Take, for instance, what we today call locatio conductio rei:"Quod As As ¹ ¹ funduni quo de agitur locavit, quidquid ob earn rem N™ N"1 A° A° dare facere oportet ex fide bona, eius iudex N™ N™ A° A° condemnato, si non paret, absolvito":
this was (probably), what the formula of the actio locati looked like, and the conductor (lessee) could invoke the corresponding actio conducti:
"Quod As As de ¹ ¹ funduni quo de agitur conduxerit, quidquid ob earn rem N™ N™ A° A° dare facere oportet ex fide bona, eius iudex N™ N™ A° A° condemnato, si non paret, absolvito."
A slight change in the demonstratio was all that was necessary to adapt the formula to suit a contract of services: "Quod As As ¹ ¹ se operasque suas locavit...", "Quod As As de ¹ ¹ operas eius conduxit...", and the actiones locati and conducti were applicable to this situation as well. Finally, the formula could be employed to suit a locatio conductio operis, too: "Quod As As ¹ ¹ (e.g.:) columnas transportandas locavit...", "Quod As As de ¹ ¹ columnas transportandas conduxit..." was how the parties would have defined the facts on which they based their action.
A contract of locatio conductio was thus actionable, no matter whether it involved res, operae or opus; and in a legal system developed under procedural auspices ("ubi remedium, ibi ius") this is obviously of prime importance. Legal protection was available to lessors and lessees, to employers and employees, to customers and contractors; the carving out of the rules of substantive law was cura posterior and could be conveniently attended to within the wide range of bona fides. After all, the judge was instructed to decide what the defendant had to do or to give "ex bona fide", and that provided him with the necessary discretion to develop apposite distinctions and to make, for instance, the standard of liability dependent upon the individual type of locatio conductio which he happened to be dealing with. These distinctions, however, were never conceptualized or categorized, the reason being simply that it was not necessary to do so, from a procedural point of view. Thus, the Romans always contented themselves with locatio conductio as a residual category for all types of bilateral agreements except sale, where the prestation of one of the parties had to be inmoney.
More on the topic Historical development:
- I. HISTORICAL DEVELOPMENT
- THE CONCEPT AND ITS HISTORICAL DEVELOPMENT
- THE HISTORICAL DEVELOPMENT AND THE COMPILATION OF THE EDICT
- Chapter 1 Sources and Historical Development of Roman Law
- 77 This book is primarily concerned with the development of the classical law, more specifically, with the sources from which that law derives and with the forces which were instrumental in its development.
- Historical institutionalism
- THE HISTORICAL SCHOOL AND PANDECT LAW
- CHAPTER V The historical record
- Deciphering Development: The Productive Power of Myths
- Cultural development