Leases for a fixed term
(a) Lustrum; ins repellendi and ins migrandi
Apart from these essentials of locatio conductio, the parties were, of course, entirely free to agree to any number of accidentalia negotii.
Often, for example, they fixed a specific term during which the lessee was to have (and enjoy) the object of the lease; in the case of agricultural tenancies this was usually quinquennium (or: lustrum), a period of five years.101 After the lapse of this period the contract came to an end and the lessee had to hand the object back. Only under certain circumstances was either of the parties allowed to dissolve the contractual relationship before that time: the lessor could expel the lessee if the latter did not pay the rent, if he neglected his duty to cultivate the land,1"2 or grossly abused the former's property, if the object of the lease was in need of repair or if the lessor needed it for his own use;103 the lessee could relinquish the object, if it had become unfit for use or if its continued use entailed a danger for him.104 The lessor thus had a ius repellendi, the lessee a corresponding ius migrandi. Especially with regard to the latter, a rather restrictive tendency prevailed. This is not only in tune with the unfavourable treatment accorded to lessees generally, but also shows a specific desire to keep coloni on the soil and thus to ensure, in the public interest, that the land continued to be cultivated.105 As far as public lands were concerned, there even seems to have been a practice of forcing lessees to stay on after expiry of the term of lease, if no other lessee could be found to look after the land. This device backfired, however, for fewer and fewer people were prepared, under these circumstances, to take public lands on lease in the first place. The penuria colonorum eventually forced the Emperor Hadrian to relent:"Valde inhumanus mos est iste....
facilius invenientur conductores, si scierint fore ut, si peracto lustro disccdere voluerint, non teneantur."1""(b) Relocatio tacit a
The desire to promote soil cultivation, incidentally, provides the policy background to another legal construction: "Qui ad certum tempus conducit, finito quoque tempore colonus est; intellegitur enim dominus, cum patitur colonum in fundo esse, ex integro locare. "107 This is what came to be called relocatio tacita: if the conductor remained on the land after the term of the lease had come to an end, the contract was deemed to have been renewed; its duration was extended.
n Cf. e.g. Paul. D. 19. 2. 24. 2-4; De Neeve. Colonus, p. 10; Visky. Spuren, pp. 205 sqq. For urban leasehold, cf. Frier, Landlords and Tenants, p. 37.
1(2 Paul. D. 19, 2, 54, 1; on this text, see Giuseppe Gilibcrti, "La 'stipulatio poena', in D. 19, 2, 54, 1 (Paul. 5 Resp.)", (1983) 29 Labeo 44 sqq.
IC8 C. 4, 65, 3 (Ant.); Mario Battaglini, "La risoluzione del contratto de locazione per necessita del locatore ncl diritto Romano e comune", in: Studi in onore di Emilio Belli, vol. IV (1962), pp. 523 sqq.; Frier, Landlords and Tenants, pp. 92 sqq. This was not a numerus clausus of instances of justified expulsion. On cases where a third party was involved in the expulsion of a tenant, cf. Frier, pp. 79 sqq.
04 Cf., for example, Gai. D. 19, 2, 25, 2 ("Si vicino aedificante obscurentur lumina cenaculi, teneri locatorem inquilino: certe quin liceat colono vel inquilino relinquere conductionem, nulla dubitario est"); Alf. D. 19, 2, 27, 1 ("... si quis timons causa emigrasset.,."); Ulp. D, 19, 2, 13, 7 ("Exercicu veniente migravit conductor..."): for details, see Frier, Landlords and Tenants, pp. 92 sqq.
105 Mayer-Maly, Locatio conductio, pp. 216 sqq.
"* Call. D. 49, 14, 3, 6.
107 Ulp.
D. 19, 2. 14.It was the very same contract that continued to exist, and hence pignora (and other accessory rights) did not fall away either: "Qui impleto tempore conductionis remansit in conductione, non solum reconduxisse videbitur, sed etiam pignora videntur durare obligata."108 Details about the length of time for which such (re-)locatio was deemed to have been concluded are not entirely clear109 and were consequently controversial in later times.110 The relocatio tacita as such, however, with tacit or implied consent as its dogmatic basis,111 has survived the ages and can still be found in the modern German Civil Code.112 § 568 BGB ("If, after the expiration of the term of the lease, the use of the thing is continued by the lessee, the lease is deemed to have been extended for an indeterminate time....") has even gained in stature, for it applies not only where the lessee continues to use the thing after effluxion of the time for which the lease had originally been entered into but also where the lessor has terminated the lease by way of notice.113 The relocatio tacita, in its modern form, has thus assumed a new function and plays a role (albeit a rather minor one) in the quest for security of tenure for housing tenants.
5.
More on the topic Leases for a fixed term:
- Leases for an indefinite period
- Leases in perpetuity
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- Terminology
- Introduction
- Definition and Classification of Res