Locare and conducere
A lets his townhouse to B, He asks his employee C to maintain the garden of his country residence. Finally, he asks D to transport some columns from the one place to the other.—It does not strike the modern lawyer as particularly obvious that these three transactions should have more in common with each other than each of them with, say, a contract of sale.
Indeed, according to modern German (or South African) law, wre would be dealing with three different types of contract. B has been granted the use of a thing in return for money: A and B have concluded a (contract of) lease. C has promised to provide his services in return for money: he has entered into a contract of service (or employment). D has been assigned a specific task to be performed in return for money: we are dealing with a contract for work.This scheme has been taken over from the pandectists.[1720] They referred to locatio conductio rei (letting and hiring of things), locatio conductio operarum (letting and hiring of services) and locatio conductio operis (letting and hiring of work). The Roman lawyers, on the other hand, did not draw these distinctions. They did not think in terms of three different transactions, but accommodated all of them within the framework of one single contract called locatio conductio. The parallels with emptio venditio are obvious: we are dealing with a consensual contract[1721] of a necessarily bilateral nature; the prestation of one of the parties has to consist in money; and the transaction is defined by what happens to the object of the contract seen from the point of view of first the one and then the other party (locare/conducere).[1722] "Locare" means to place, place out or place at the disposal, "conducere" to carry along, to take with one.[1723] This, for the Romans, was the pivotal point, the core feature uniting the seemingly disparate contracts of lease, of service and for work under one and the same umbrella. The lessor places a thing at the lessee's disposal.
The lessee may use it; he takes control of it and in this sense "carries it with himself". The employee places his services at the disposal of the employer, which the latter then "takes along", i.e. is in a position to make use of. And the customer (in the case of letting and hiring of work) places out a specific job, a piece of work to be done; the contractor takes over the object(s) with regard to which he has to perform that task.[1724]It becomes clear immediately that the Roman terminology must appear to be utterly confusing once one loses sight of these core concepts. For whilst in the contract of service (locatio conductio operarum) it is the locator who does the work (and the conductor who pays the remuneration), under a contract for work (locatio conductio operis) the conductor is bound to do the job, the locator to pay the money. Both the letting and hiring of things (locatio conductio rei) and of services often involve parties who are economically and socially unequal; but whereas in the first instance it is the conductor (lessee) who is typically in the weaker position, the same applies, in the second case, to the locator (employee). All in all, then, actiones locati are granted to a lessor, an employee and a customer, actiones conduct! to the lessee, the employer and the contractor. The only key to understanding and determining this lies in the meaning of locare and conducere.
2.
More on the topic Locare and conducere:
- Essential elements of Roman "labour law"
- Letting and hiring (locatio conductio)
- The Etruscans
- Fidepromissio and the transition to fideiussio
- INTRODUCTION
- SENATUS CONSULTA
- ABBREVIATIONS
- Appendix 2 Law Reports and Journals (Some Useful References
- Conclusion
- Why do people do acts that are agreeable or useful to other people and why do evaluators approve of such acts, and even approve of acts agreeable or useful to the actor herself?