Leases in perpetuity
Implicit in what has been said so far is, of course, the fact that lease (as opposed to sale) is concerned with a merely temporal transfer of the object.[1823] Even if no definite period had been agreed upon, the contract was terminable by either of the parties at any time.
Gaius mentions one exception,[1824] which, however, related exclusively to agri vecticales belonging to a municipality. These were usually let in perpetuity,[1825] i.e. upon the terms that, as long as the rent was paid, the land was not to be taken away from either the tenant or his heir. There seems to have been some debate about whether this was sale or hire: "sed magis placuit locationem conductionemque esse."[1826] In post-classical times, long-term leases became more and more common as a device to attract competent managers to run the often uncultivated public estates.124 Alongside the ordinary locatio conductio, emphyteusis (with regard to fundi patrimoniales, i.e. the private property of the emperor)125 and a so-called ius perpetuum (relating to fundi rei privatae, i.e. State land)125 came to be recognized; both institutions were covered by the vague and comprehensive concept of ownership in vulgar law.[1827] As a consequence of this, the dividing lines between locatio conductio and ownership became blurred, a development which was stopped only by the Emperor Zeno, who recognized and accepted the ius emphyteuticarium as an institution sui generis, creating a ius in rem and being distinct from both locatio conductio and transfer of ownership subsequent to a contract of sale.[1828] The European ius commune continued to provide special rules for long-term leases[1829] and distinguished between locatio conductio simplex (or: ad modicum tempus) and locatio conductio ad longum tempus. Only the former was regarded as an obligatory contract of lease, to which the Roman rules relating to locatio conductio were applied. If the term for which the lease was entered into exceeded modicum tempus (usually ten years), the lessor was taken to have transferred dominium utile[1830] to the lessee. The lessee's position was sometimes equated with that of an emphyteuta; more often, however, locatio conductio ad longum tempus was regarded as a separate institution (which did not preclude the application of some of the rules relating to emphyteusis). Others distinguished between locationes in perpetuum and emphyteusis.[1831] [1832] [1833] Pothier mentions the louage a tongue temps13* but does not give any special rules. Modern German law no longer recognizes perpetual leases. If a lease is entered into for more than 30 years, either party may terminate the contract after 30 years by giving notice.13" The emphyteusis has not survived codification. It continues to exist in South African law,[1834] and with it the lease in perpetuity.[1835]7.
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