Letting and hiring (locatio conductio)

Locatio conductio was a bilateral and consensual contract of letting and hiring for a price. It was a general contract that included a wide diversity of transactions. The main feature linking all such transactions was the fact that the locator placed (locare) a thing (or services) at the disposal of the conductor for him to carry along (conducere): a landowner placed land at the disposal of the lessee for the latter to use it; an artisan placed his services at the disposal of an employer to make repairs at the employer’s house; a customer placed a piece of cloth at the disposal of a tailor to make a toga; a Roman citizen placed ten jars of wine at the disposal of a carrier for transportation to another city.

In many ways, locatio conductio was similar to sale. Both were con­sensual and bilateral contracts based on good faith and involving money. Gaius (3.144) affirms that sometimes the similarities ran so deep that the distinction was not clear. This occurred, for instance, when a thing was let in perpetuity. In the curious example of the contract for supplying gladia­tors (Gaius 3.146), the prevailing opinion held that the contract was a hire for the gladiators who came out unhurt and a sale for the gladiators who were killed or disabled. The contract for making a ring was a sale if the gold belonged to the goldsmith, but a hire if the customer supplied the gold (Gaius 3.147).

There was an important practical difference between sale and hire. In sales, it was always the buyer who paid the price to the seller. In hires, however, either the locator or the conductor could pay the remuneration. So, the position of the locator or conductor was not as clear as the positions of the buyer and seller, and it was not as important. Both the locator and conductor were liable for fraud (dolus) and negligence (culpa). In general, the risk in case of accidental destruction was on the locator (periculum est locatoris), and, therefore, the con­ductor was liable for safekeeping of the thing (custodia).

Although there was only a singular contract of hire, the Romans did not apply the same rules to all forms of it. This allowed for grouping the contract into three different categories.

a Locatio conductio rei: This was a contract whereby the locator agreed to give the conductor a movable or immovable thing (e.g., a piece of land, an animal) for use, or use and enjoyment, while the conductor promised to pay a recompense in money (merces). The lessor (locator) had to be the owner and was liable to the lessee (conductor) if the latter was evicted by the real owner. The lessor had to refund the lessee any expenses for the benefit of the thing. He also had to pay taxes and other charges. The lessee had only the use of the thing, neither civil nor praetorian posses­sion. He could sue only the lessor, not a third person. The lessee could not change the character of the thing and had to restore it at the end of the contract to its original condition.

b Locatio conductio operarum: This was a subcategory of the locatio con­ductio rei in which, instead of offering a thing, the locator offered his own services (dare operas) for a limited time without allusion to a specific result to be achieved. The locator (e.g., domestic or manual worker) agreed to provide some services (usually at a day’s wage) for a remuneration to be paid by the conductor. The conductor did not have to pay the wages to the locator when the latter could not perform the services because of illness or lack of ability. However, the conductor had to pay the wages if the locator was not responsible for his labor not being performed, e.g., in case of a collapse of a mine (Paul, D.

c Locatio conductio operis: In this contract, the locator agreed to place at the disposal of the conductor some materials for the conductor to perform a specific task or work or produce a final result (opus factum) or certain effect (e.g., making a dress, building a house, or transporting goods and persons). The conductor had to complete the work within the agreed-upon time frame; if no deadline was fixed, the work had to be done in a rea­sonable time (Labeo, D. 19.2.58.1). Subcontracting was allowed, but the principal conductor continued to be responsible for the final result. The locator had the obligation to accept the completed work, giving approval where necessary (Florentinus, D. 19.2.36), and pay the remuneration (merces) in the appropriate way.