Locatio Conductio

The second consensual contract was the contract of letting and hiring (locatio conductio), or lease. This contract was concluded when one person (the lessor or locator) had consented to give another (the lessee or conductor) the use and enjoyment of his thing, services or labour and the latter on his part had consented to pay remuneration.

A contract of lease became valid and binding as soon as the parties had reached agreement on three essential elements (essentialia): to let and to hire, the subject matter and the price. It shared features with the case of sale in that no form was legally required and the requisite agreement could be reached in any manner (e.g. by letter or through a messenger). With respect to the subject matter of the contract and in accordance with modern legal systematics, a distinction is made between three types of locatio conductio: the letting and hiring of a thing (locatio conductio rei); the letting and hiring of services (locatio conductio operarum); and the letting and hiring of a piece of work to be done (locatio conductio operis). The remuneration or rent had to consist of money^[792] that was genuine and certain or ascertainable (merces certa or pretium certum).^[793]

It is clear that letting and hiring was a synallagmatic or bilateral contract giving rise to reciprocal personal rights and duties for both parties to the contract. The lessor could enforce his rights by means of a personal action known as actio locati, while the lessee had recourse to the actio conducti.

name=bookmark1692>4.7.2.1     Locatio Conductio Rei

As previously noted, locatio conductio rei was a contractual agreement whereby the lessor agreed to allow the lessee the use and enjoyment of a particular object.

The principal duty of the lessor (locator) required him to give undisturbed use and enjoyment of the thing let to the lessee for the agreed period of time. The physical control transferred to the lessee was, however, unprotected detentio, i.e. a state of factual control that did not qualify as possession under the law and thus did not have any real operation against third parties.^[796] This entailed the protected possessio remaining with the lessor, who had a duty to protect the use and enjoyment of the lessee. Consequently, the lessor had to guarantee the lessee's detention of the thing.^[797] Furthermore, the lessor was required to maintain the thing in good condition suitable for the purpose of which it was leased.^[798] If he deliber­ately failed to do so, he was liable towards the lessee for damages.

With respect to the obligations of the lessor arising from the contract of locatio conductio rei, the applicable standards of liability under the law of Justinian were dolus and culpa levis in abstracto. This meant that where the lessee suffered damages or was prevented from use and enjoyment of the thing let owing to fraud or negligence on the lessor's part, the lessee could institute the actio conducti and hold the lessor liable. Thus, if the lessor knew or ought to have known of latent defects in the thing, he was liable to accept a reduction of rent and to compensate the lessee for damages caused by such defects. On the other hand, if the lessor was unaware of the defects then the lessee could only claim a reduction of the rent. But where the thing proved to be in such a state that rendered it unfit for the ordinary use for which it was intended, the lessor was absolutely liable for return of rent and damages irrespective of whether he knew of the defects or not as in such a case he did not supply what the lessee was entitled to obtain pursuant to the contract.^[799] Furthermore, the lessor bore the risk if the lessee was prevented from using and enjoying the object leased due to an act of God (vis maior).

After the period of the lease had elapsed, the lessor had the duty to accept the thing back and to compensate the lessee for any expenses incurred in preserving the thing from loss or damage, and expenses that increased the value of the 231

property.

With regard to the duties of the lessee or hirer (conductor), the most important required him to pay the agreed rent to the lessor^[802]; take proper care of the thing as long as it remained in his control^[803]; and return the thing to the lessor at the expiry of the lease.^[804] During his tenure of the thing, the lessee was liable for dolus and culpa levis in abstracto.^[805] Thus, if the thing was destroyed or damaged while in the lessee's possession as a result of his intentional or negligent conduct, the lessor could institute the actio locati for the loss he suffered. On the other hand, if the thing was destroyed or damaged without the lessee's fault as in the case of an unavoidable accident (casus fortuitus), the lessee could claim a total or partial remission of the rent (remissio mercedis) for the period of non­enjoyment.^[806]

As a rule, a contract of locatio conductio rei was terminated by the lapse of the period of time for which the contract had been concluded. If no such period was agreed upon, either party could cancel the contract unilaterally.^[807]

4.7.2.2     Locatio Conductio Operarum

Locatio conductio operarum was an agreement whereby one person consented to place his services (operae) at the disposal of another person, and the latter on his part consented to pay remuneration.

The contract of letting and hiring of services was not as common as it is in present-day law, since most labour was performed by slaves. When the services of slaves were let, as it frequently occurred in practice, the relevant contract was locatio conductio rei as hiring a slave's operae was tantamount to hiring the slave, i.e. a res.^[808]

The duties and obligations of the parties arising from the contract of locatio conductio operarum, as defined by bonafides, were largely the same as in the case of locatio conductio rei. The worker had to supply the services and complete the work in the agreed time, and remained liable for any damages arising from fraud (dolus) or negligence (culpa levis in abstracto)^[809]; and the hirer had to accept the services rendered and pay the agreed fee.^[810] If the worker was prevented from carrying out the work by some cause extrinsic to himself (for example, by the collapse of the mine due to an earthquake) and without any fault on his part, the hirer (conductor) bore the risk and was still required to pay the former his fee.^[811] On the other hand, if the worker's failure to perform the services was due to illness, lack of ability to execute the job or some other cause falling into his sphere, then he bore the risk (even if there had been no fault on his part) and the hirer did not have to pay wages.

4.7.2.3     Locatio Conductio Operis

The contract of locatio conductio operis came to the fore when one person assumed the duty to perform a specific task or work (opus) for another person who had placed such work out on contract and consented to pay in return.^[812] In this context, the object of this contract was not services for a limited time but the completion of a piece of work, such as the manufacturing of an object from material supplied by the employer^[813]; the building of a house; the cleaning or repairing of clothes; the training of a slave; the teaching of children; and the transport of goods or persons.

The conductor had the duty to perform the work properly in the stipulated time or, if no time was fixed, in a reasonable time.title="">^[814] During the conclusion and execution of the contract, he was liable for loss or damage caused by his dolus or culpa levis in abstracto^[815] and also for damage that resulted from his lack of skill or expertise (imperitia).^[816] This meant that if he failed to achieve the outcome agreed upon owing to his fraud or negligence, he was liable for damages by means of the actio locati.^{[817] [818]} Furthermore, he was liable on the same basis for the loss of or damage to things that had been entrusted to him by the locator^24,8

The principal obligation of the lessor (locator) was to accept the work when completed and pay the conductor his remuneration (merces, pretium).^[819] If the work was subject to his approval, he had to approve it within a reasonable time after its completion.

Where the work specified in the contract of locatio conductio operis was not executed due to circumstances beyond the control of the parties, the risk was initially borne by the conductor who had to forfeit his remuneration. However, later law provided that the conductor should bear the risk of damage only if his failure to execute the work derived from a fact that fell within his particular sphere of activity. If, on the other hand, his non-performance of the work was due to a fact that fell within the sphere of the lessor or was the result of an act of God (vis maior), the risk fell on the lessor who was still required to pay the conductor the agreed fee.^[820]

4.7.3