INTRODUCTION
What is the relationship between Roman law and the society which produced it? The answer to this question is in fact much more complicated than it may seem at first glance. There are two divergent academic views on the issue.
On the one hand, Alan Watson has argued that it is too simplistic to assume that a close link between law and society should necessarily exist.1 Although some connection is bound to be present, the precise nature of it often remains obscure and cannot by definition be used to explain the nature of specific rules of law. On the other hand, John Crook has argued that there is a close relationship between Roman law and society and that many rules of law may be explained in terms of the peculiarities of that society.[249] [250] The aim of this chapter is to test these two views using a specific area of Roman private law, namely letting and hiring, one of the consensual contracts which has become a much discussed topic in the last few years.[251] More specifically, this chapter will investigate the effect of death of one of the parties on the contract of letting and hiring. It may well be asked why letting and hiring should receive special attention in this regard, since death had a variety of legal consequences in virtually every aspect of Roman private law. The reason for the particular focus is the following. Letting and hiring, like sale, was a consensual contract with widespread application.[252] It affected the lives of a substantial part of Roman society either through contracts of work or tenancy (whether urban or agricultural). It stands to reason that the issue of death would have cropped up in relation to the praxis of the contract of letting and hiring on a regular basis. Thus the way in which the Roman jurists dealt with the issue in terms of the law of letting and hiring may provide some measure of support for either of the two academic views proposed above.The hereditability of letting and hiring is not a topic that is widely treated in modern literature on Roman law. The main reason for this is that source material on this matter is rather scant. Although Roman legal texts contain a number of references to the heir of either the locator or conductor, they do not present an unambiguous statement to the question of the hereditability or indeed when this development occurred in the history of the contract. This lack of clarity is also in evidence in modern textbooks on Roman law. Kaser, for example, did not address the issue at all and merely classified certain types of lease such as emphyteusis[253] [254], superficies and the letting and hiring of ager vectigalis5 as “hereditary”, mainly because they effectively conferred ownership of the leased property to the tenant.[255] Buckland, under the heading “involuntary modes of termination of an obligation”, mentioned that death of the creditor in general had no effect upon the obligation except when it brought the rules of impossibility into play.[256] Examples of obligations terminated by death were listed as partnership, mandate, sponsio, adstipulatio and fideipromissio. Nicholas stated that in certain cases obligations were discharged by death of one of the parties and gave as examples the contracts of partnership and that of mandate.[257] Thomas recounted the general rule, namely that, with certain exceptions, death of one of the parties normally did not terminate an obligation arising from a lawful relationship.[258] [259] The exceptions listed include the contracts of partnership and of mandate as well as locatio conductio operarum and (in specific cases where the issue of skill was paramount) locatio conductio operis faciendi.11 Thomas' statement was not based on direct textual evidence, but on a conclusion drawn from the nature of the exceptions listed. Since partnership and mandate generated intensely personal rights and duties, it stood to reason that these would be terminated by death of one of the parties. The same reason could, by analogy, be extended to certain examples of (using modern terminology) locatio conductio operarum and in certain cases locatio conductio operis faciendi. As far as can be ascertained, this is the only overt statement regarding the impact of death on locatio conductio in a modern textbook. There is every reason to suspect that Thomas' view on this matter is correct, since it seems logical that the death of a locator operarum, e.g. a scribe, or a conductor operis faciendi, e.g. master builder, led to the termination of the contract.12 It is also on these grounds that the former two types of letting and hiring will be excluded from this discussion. Given what has been proposed thus far, it would therefore appear from the absence of any contrary statement on the matter that as far as modern textbooks are concerned death of either the locator or conductor did not have an effect on locatio conductio rei of movable or immovable property. The argument will be developed in three stages. First, issues of dating will be addressed. This will be followed by a survey of the legal sources mentioning the effect of the death of the conductor upon the lease. Finally, the legal texts dealing with the effect of the death of the locator will be investigated. The Roman jurists' treatment of these two issues will be used to draw some conclusions concerning the relationship between law and society. B.
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