Legal rules and extra-legal restrictions
At this stage one further point should perhaps be mentioned which accounts, more generally, for the fact that there was so little law (comparatively speaking) relating to locatio conductio of whatever type.
Roman law was originally based on status relationships; it concerned itself with the family unit rather than with the individual. There was a movement, as Sir Henry Maine has put it, from Status to Contract.[1777] A characteristic feature of Roman law was that it tended to interfere with the internal aspects of these status relationships as little as possible; pietas, fides, reverentia and the mores maiorum were largely relied upon as entirely satisfactory regulatory mechanisms:"[T]he need of the Roman for liberty demands restraint in the matter of the creation and recognition of legal principles. He demands a wide space free of legal rules because of the number and power of extra-legal restrictions. The Romans were enmeshed in a web of such restrictions, the intricacy and strength of which can hardly be conceived by the isolated beings of modern times."[1778]
Thus, for instance, contractual relationships between a paterfamilias and his sons in power or his slaves did not exist; and it is immediately obvious that where the need for skilled labour was largely satisfied by a slave economy, locatio conductio in its labour-law variant had to be of much less significance than it is today. Particularly important, in our context, is the patronatus, a comprehensive power-relationship (involving, for instance, the ius vitae necisque), mitigated only by pietas, fides and censorian supervision, which existed between the former master and his freedman, but which could also be created by way of deditio or applicatio. Thus, many peasants, artisans and workers were technically free, but in fact their situation was half-servile.
They worked as clientes for their patrons, who in turnonly to upper-class housing. It is to this segment of the law and of society that books such as those by Kerr and Cooper (The South African Law of Landlord and Tenant (1973')') refer. A totally different body of (administrative) law governs the residential rights of urban blacks. Cf, for an overview, W.H.B. Dean, "The Legal Regime Governing Urban Africans in South Africa—An Administrative Law Perspective", (1984) Ada Juridka 105 sqq.
6| Ancient Law, p. 100.
6* Schulz. Principles, p. 21; cf. also Hans Kloesel. "Libertas", in: Hans Oppermann ted.'). Romische Wertbegriffe f 19831. pp. 120 sqq. provided them with accommodation, protection in case of need, etc.[1779] 61 * [1780] [1781] [1782] [1783] Clientship created reciprocal duties, which were, however, based on fides rather than on law. Thus it involved a complex net of social relations, relations which would have been classified, in legal terminology, as contract of lease, contract of services and contract for work. Of course, there was no need for such distinctions yet. As a matter which fell outside the ambit of the law, everything remained jumbled up; and this may be one of the historical reasons for the hybrid nature of locatio conductio once clientship disintegrated and once the praetor started to "legalize" the relationship and to grant reciprocal
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actions.
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