Locatio-Conductio (Hire)

Suppose I get a car for a week from Avis or Hertz or another such firm. According to the colloquial usage of our language the word �hirer’ does not unequivocably mean me or them.

In Latin, Hertz is the locator, and the sum to be paid is the merces. I am the conductor. The same language can be used in relation to land as well as movables. Literally the word locator means �placer out’; and conductor means �leader with’. A merces is a reward. So, a mercenary is for us a soldier who fights for anyone who will reward him. It is convenient to have stable terminology. Let us keep the Latin locator and conductor. They are not difficult. And let us say that Hertz, the locator, �lets’ the car to me; that I �hire’ it and am conductor; that what I pay, the merces, is simply the �reward’. This terminology will run into some sticky ground, but I will abide by it. The transaction itself can still be called �hire’.

Gaius (at G.3.142) and Justinian (at J.3.24 pr.) both start by saying that locatio-conductio resembles sale. This is true. And it allows our treatment to follow the same pattern, though much more shortly. There is less law on hire in the sources anyhow. But, beyond that, we now have to speed up.

Under the formulary system the locator’s pleading went like this:

Quod Aulus Agerius Numerio Negidiofundum quo de agitur locavit qua de re agitur, Whereas Aulus Agerius let the land which is the subject of this action to Numerius Negidius, which matter is the subject of this suit, quidquid ob eam rem Numerium Negidium Aulo Agerio darefacere oportet ex fide bona, whatever on that account Numerius Negidius ought in good faith to give to or do for Aulus Agerius, eius iudex Numerium Negidium Aulo Agerio condemnato; si non paret absolvito.

14

Lenel §111(112).

If the conductor rather than the locator needed to sue,the pattern was the same. But the �whereas’ clause said conduxit (hired) instead of locavit (let). The locator’s action was called �the action of letting’, actio locati or ex locato. In the same way the conductor’s action was the actio conducti or ex conducto.

i. The demonstratio

�Whereas the plaintiff let (or, hired)’: What facts would substantiate this allegation? In other words, what fell within the definition of hire? My transaction with Hertz is right in the centre of the picture. But there are two other cases less to be expected according to our notion of hire.

Suppose I have a slave who is trained as a carpenter. If you pay me to let you have him for a month, that is exactly the same as the case of the car. At least it is once you have adjusted to the fact of slavery. Hire of a slave, hire of a thing, it is all one. But suppose I am a carpenter, and you employ me for a period as your carpenter. Nowadays that contract of employment would be put in another category as something quite different from hire of a thing. The Roman conception makes hire of services the same as hire of a thing. The services (operae) are the �thing’ hired: you are conductor of my carpentering services. And I am locator, just as though I was letting a plough or a horse.

The next case is more surprising. Suppose you have a broken chair to be mended. You come to me, still a carpenter, with this job to be done. You do not want to employ me as your carpenter, just to have this carpentering task done. This is hire too. You are locator of a chair to be mended. Or it might be wine to be transported, rubbish to be burned, sheep to be tended. And I am conductor of these jobs to be done. This is locatio-conductio operis faciendi. What is remarkable is that in this case the reward passes from locator to conductor.

The threefold division between locatio rei (hire of a thing), locatio operarum (hire of services) and locatio opens faciendi (hire of a job to be done) is not made in the Roman texts. The Roman perception simply makes the thing a unity. That means no fuss has to be made to explain how three different looking animals could be put together. We see them as different. They did not. It is difficult to catch their standpoint. Obviously the money, or more accurately the direction of money passing, was not essential to the way they saw it. Something like control for a purpose for a time, with that party paying who happened to agree to pay. If I want to go for an early morning ride on your horse I will agree to pay you, say, £10 for an hour's riding. If you want your horse to be exercised and I would much prefer to stay in bed you will pay me £10 for the same hour's riding. Either way you locate your horse to me: control of a horse for riding for an hour. It is the same with fields to be cultivated for a season. There is the control for a purpose for a time. But only the agreement will reveal the direction in which the reward must pass. Locatio of services fits in this picture by saying it is the locator himself who is under the conductor's control for a purpose (carpentering) for a time, or, more respectfully, not himself but his work-capacity, his labour. But there is no denying that the unity is elusive.

A. The reward There must be one. Otherwise the transaction will be something else. A car for a week without any price is not what Hertz does. It will be a loan-for-use, not hire. Loan-for-use is called commo­datum; as opposed to loan-for-consumption, which is mutuum. And if the car is handed over not for use but for safe keeping (�Will you keep my car in your garage while I am away in France?') that will be depositum if gratuitous.

Must the merces be in money? We saw that in sale, after dispute, the price had to be. To distinguish buyer and seller. The equivalent case here is loan against loan: I lend you my horse for ten days in return for your lending me your horse for the following ten days, as for instance so that we shall both have a pair with which to plough. Gaius leaves the question open (G.3.144). Justinian says this is not hire. And not com­modatum either since not gratuitous (J.3.24.1). It is covered by a gap­filling actio praescriptis verbis. But this leaves room to count as hire the case in which I give a sheep for ten days' use of your horse, or a quarter of my crop for hire of your land. The parties are sufficiently distin­guished, since one, here you, gives a temporary control and the other makes a final surrender.

Like the price in sale, the reward had to be fixed (certum). And its being fixed was taken as the moment at which the contract was made. Justinian applied the same solution as in sale to the case in which the parties agreed to abide by the decision of a third party (J.3.24.1): the sale was conditional on his making known his valuation. We saw that

behind this problem lay the question whether reasonableness could be understood as the measure really intended by the parties and, if so, whether reasonableness provided a sufficient standard of certainty.¹⁵ The same question underlies another problem. What if I go to a cleaner with clothes to be cleaned or to a tailor with clothes to repair and arrange the job to be done but without fixing the price? This is not the case where he has a tariff to which I assent impliedly. The construction of my intent is that I will pay as much as shall be agreed afterwards. Gaius (at G.3.143) says this makes a question whether hire is contracted (quaeritur an locatio-conductio contrahatur).

B. Liberal professions Even if the definition of hire appeared in all respects to be satisfied, nonetheless some services were regarded as removed from its scope. To save their dignity. Advocacy, surveying, philosophy and the law provide examples. Presumably a defendant could therefore maintain before the judge that the facts did not amount to hire because his service was of a kind which it was not usual to hire. But there is a complication which makes the picture unclear. Some kinds of work, as for instance curing the sick, were done at different levels of society, from slaves upwards. The exemption from locatio- conductio seems not to consist solely in the nature of the work but in a combination of type of work and status of its practitioner. What is exempt is the genteel version. Complex psychology underlies this. And there is nothing particularly Roman about it. The dark side is pretence in the quest for dignity: the would-be superior pretends that he does not need money and, the other way about, can be relied on to meet his liabilities extra-legally, as matters of honour. But that is not the whole story. The nobler part is that man really is at his best when working for his work's sake, not for money. Nowadays we find it difficult to recognise this higher life, unless perhaps we first identify the person in view as a musician or an artist. If a lawyer claims it, we suspect humbug. Things change, and change back.

C. Three old chestnuts

(a) Work and Materials

If I take a cup to be engraved, or jewel to be cut, into a shop to have the work done, there is no doubt that the contract is hire. I locate the

job-to-be-done. It is the case in which the locator pays. It is the same when I take a lump of gold to a goldsmith to have it made up into rings. But what if I simply go in and ask for rings to be made to a given specification? In more general terms what if the worker provides not only labour but also the material to be worked upon? G.3.147:

...

... Cassius holds that in respect of the material there is a contract of sale, in respect of the labour a contract of hire. But most authorities consider that the contract is sale.

The difficulty is that where the worker provides the material the property in the thing made must in the end pass to the customer. And that is contrary to the nature of hire. On the other hand there is some awkwardness in contemplating an action of sale to compel the doing of labour, and also in drafting the pleadings. For what is it that must be said to have been sold? The ultimate solution, making the whole contract sale, shows these hesitations to be superable. Cassius took a fussier line. But its inconvenience is obvious. Nobody wants to have to litigate about one transaction under two heads.

Suppose that I want a block of flats built on my land in the city. You now win the contract. You will provide all the materials. Is that sale or hire? It is hire. Because I am providing the land. Property in your materials will pass to me, but not by virtue of the contract. The fixture accedes to the land as it is built.

(b) Gladiators

This is best taken verbatim from Gaius himself (G.3.146):

Again, suppose I deliver gladiators to you on these terms: twenty denarii are to be paid me for the sweat of each one who comes off unharmed, one thousand denarii for each one killed or weakened. Is the contract sale or hire? And the preferred view is that there is hire of the ones who survive intact and sale of those killed and weakened. The uncertainty is resolved by what happens, as though there was a conditional sale and hire of each one. For there is no longer any doubt that things can be sold and hired subject to a condition.

There are loose ends. First there are events in which litigation can happen before events resolve the uncertainty. How should the trans­action then be described? Suppose non-delivery. Presumably hire. But that means the solution should be described as hire of all subject to conditional transformation into sale. Secondly, there is an assumption that the debilitati (the weakened as opposed to killed) pass into the ownership of the impresario. Otherwise the fact of their injury, and the consequent increase in price, is no reason for taking the contract over into sale. Lastly, there is a problem, in the case of the occisi, in seeing a condition fulfilled by the destruction of the subject-matter. This awk­wardness arises from the rule or guideline �no sale without a res sold'. But it can be met by insisting that the existence of the res while the condition is pending is sufficient; or, alternatively, by saying (insisting that the rule is only a guideline) that the intentions of the parties determine whether the sale survives the destruction of the res.

(c) Heritable Hire (Emphyteusis)

Gaius observes (at G.3.145) that, without transferring ownership, municipalities sometimes deal with their land in such a way as to produce results de facto much the same as if a sale had happened and dominium had passed. That is, they let the land at a rent on the terms that so long as the rent is paid the land will stay in the family. He speaks of the original recipient and his heir. But their right was or became assignable, inter vivos and by will. The person entitled had, by virtue of a praetorian action, an interest in rem as well as contractual rights in personam against the landlord. Gaius says the preferred opinion was that this was hire, not sale. The argument to the contrary is apparent: the effects are tantamount to transfer of dominium; and, if you can once view the long or perpetual hire as creating a right in rem, then the transaction looks technically very like the sale of a servitude, as for instance a right of way, except that the �price’ is to be paid in perpetual instalments.

This case was settled in the fifth century by Zeno. He put emphy­teusis, which by his time had extended into private law as a transaction between individuals, into a compartment of its own, neither sale nor hire.¹⁶

ii. The intentio

�Whatever the defendant ought on that account to give to or do for the plaintiff ex fide bona': Now the demonstratio has been substantiated. So it is given that there is a contract of hire between the parties. What follows? Good faith is again the basis on which the obligations are worked out.

A. The locator's action The actio locati asks the judge what the conductor ought to do. That is, it is concerned with the locator's rights, the conductor's duties. The locator's main concern is that the conductor should look after and return whatever is entrusted to him. And if he is a locator who is to be paid he will want his money. That is a matter for the express terms.

The position is summed up very briefly by Justinian in the Institutes (J.3.24.5):

The conductor ought to do everything according to the terms of the hiring (secundum legem conductionis). And where the terms are silent he ought to answer for whatever is good and fair (ex bono et aequo debet praestare). A conductor who has given or promised a reward for the use of clothes or of silver or of an animal is required to show such safe keeping (custodia) as the most attentive owner shows to his own things (qualem diligentissimus pater­familias suis rebus adhibet). And if he fulfils that standard and nonetheless by some accident (aliquo casu) he loses the thing he will not be liable for its return.

The careful locator would protect himself carefully with express terms. Here are two examples. First, D. 19.2.29 (Alfenus, 7 Digest):

In the contract it had been written (In lege locationis scriptum erat): �Redemptor silvam ne caedito neve cingito neve deurito neve quem cingere caedere urere sinito: the conductor shall not cut, strip or burn the woodland; nor shall he allow anyone to strip, cut or burn it.' The question was put: was the conductor's obligation to prevent these things happening if he saw anyone doing them, or was it so to guard the wood that nobody could do these things? I gave this responsum: the word sinere, �to allow', can bear both meanings, but the sense which the locator is taken to have intended is that the conductor should not only prevent someone cutting whom he happened by chance to see but that he should also see to it that nobody did cut.

Second, D.19.1.11.1 (Ulpian, 32 On the Edict):

Suppose that the hiring agreement has this term �Ignem ne habeto: [the conductor] shall have no fire’. And then he does have one. He will be liable if mere mischance fortuitus casus) causes a blaze. Because he should have had no fire at all. It is different where the term is for ignem innocentem habere, having a harmless fire. For that allows him to have a fire so long as it is not dangerous.

In the absence of express provisions, good faith required the conductor to exercise a high degree of care. He would be liable if he failed to keep to the standard of the very careful owner. Some conductors may have been subjected to that very severe liability called custodia under which only violence and natural disasters would excuse them. But the general standard was �everything the most careful owner would do’.

D. 19.2.25.7 (Gaius, 10 On the Provincial Edict):

Suppose a conductor hires the job of transporting a column (columnam trans­portandam conduxit). If while it is being lifted, carried or set down it is broken, he must answer for that disaster (ita id periculum praestat) in the case in which blame (culpa) attaches to him and the men whose labour he uses. But there will be no blame if everything was done which every very careful man would see to. And we will certainly understand the law to be the same where the hire is of jars or timber to be transported. The same can be applied to other things.

Also D.19.2.13.6 (Ulpian, 32 On the Edict):

If a cleaner accepts clothes for cleaning and mice eat them he is liable ex locato. For he ought to have taken precautions against that event. And a laundry which muddles up sheets and gives the wrong one to the wrong customer will also be liable ex locato even if it is done unawares.

Again, if the res is damaged while under the conductor’s control, the question can arise whether the conductor himself is liable if either a slave or free employee did the damage. This next text answers that the conductor himself is liable if he was at fault in employing such people or otherwise giving them the opportunity to cause the trouble. D.19.2.11 pr. (Ulpian, 32 On the Edict):

Must a conductor answer for the fault of his slaves and such other people as he brings in? And to what extent? Noxally, with the option of surrendering his slaves, or directly on his own account? And against those whom he brings in must he assign such actions as he has or must he himself answer as for his own fault? In this I hold that he himself must answer even for the fault of those whom he brings in and even in the absence of express agreement provided only that he is guilty of fault in having such people either in his employ or as his guests: and Pomponius takes the same position in the sixty-third book of his commentary on the edict.

In the next two examples the subject-matter is carriage. In the first though the facts are not fully given. I think we have to imagine a taxi accident, with a passenger killed. The victim is a slave. In the second it is carriage by water. Both might have happened yesterday. They have the same familiar ring as that contract we looked at, so precisely and economically phrased against the conductor's abuse of woodland. D.19.2.13 pr.-i (Ulpian, 32 On the Edict):

What if a cab-driver... overturns his cab when trying to overtake others and shakes up a slave or kills him? For he ought to have kept to a moderate speed (tempere enim debuit). But there will also be an action on the policy of the lex Aquilia (utilis Aquiliae) against him. i. Suppose a boatman takes on the task of shipping a cargo to Minturnae. Then, when his boat proves unable to go up the river at Minturnae, he transfers the cargo to another ship. And then that ship is lost in the mouth of the river. Is the first boatman liable? Labeo says that he is not liable if he lacks culpa (blame, fault). By contrast if he does it against the owner's wishes (invito domino) or at a time when he ought not to have tried it or on to a less suitable boat then the actio ex locato is to be brought.

The theme here, not without some intriguing difficulties of detail, is that the conductor's liability turns on culpa. The question is always: was he at fault? That in turn rests ultimately on the contractual duty to observe good faith.

B. The conductor's action The actio conducti or ex conducto directs the iudex to the locator's obligations, the conductor's correlative rights. What is the conductor chiefly concerned about? He wants to get the temporary control and advantage which the agreement holds out to him. That car I hired at the beginning. My main worry is that it will break down. I shall lose two days of my week. Worse still if it spits oil over my clothes. As conductor I want from the deal the advantage or enjoyment which a hirer may reasonably expect. In the same way a garage which takes on a motor mechanic pays him to put his labour at its disposal for the while. In the Roman terms the garage is also a conductor of his labour. It wants to be sure of competent motor-mechanical operae. That is the anticipated �enjoyment’ equivalent to my expectation of trouble-free motoring. �Enjoyment’ is not quite right for the conductor who takes on a job to be done, a roof to be repaired, shirt to be washed and so on. He is being paid. What he wants is trouble­free access to whatever corpus he is to work on. It is a kind of enjoy­ment, necessary to his livelihood. But we do not usually think of opportunities to work and earn quite in the same way as temporary access for which we pay.

As with the locator the conductor’s first line of protection is the express contract. The locator must abide by all the express terms exacted from him when the agreement was made. Suppose that he is letting agri­cultural land. If he warrants that the estate will support a thousand sheep then he must honour that warranty. Fault does not enter into it. Where the term is express the only doubts are doubts of construction. Did he promise that the land was capable of carrying so many sheep or that it would at all events remain so capable for a five year period? And did he really warrant absolutely that it had, or would retain, this capacity, or did he only promise that it was as certain as reasonable care and skill could establish that it had or would retain that capacity? The exercise of construction is not often easy. But the subject of the exercise is intelligible: what was it that he undertook?

What are the locator’s liabilities independent of express terms? He must put the res at the disposal of the conductor. And that means not only the bare res itself but also any equipment which customarily goes with it to allow the expected user. If the res is a vineyard or olive orchard then wine-making and olive-pressing gear must be included. There are standard lists.

Once the conductor has the res at his disposal, the questions will arise from defective or interrupted enjoyment. The land is infertile. The vessels leak. And so on.

The locator who knows that the res has a defect which will impair the expected enjoyment must make good the whole interest of the con­ductor. That is, he must pay the full damages to make good loss suffered.

This fault-based liability is evidenced in D.19.2.19.1 (Ulpian, 32 On the Edict):

... si saltum pascuum locasti, in quo mala herba nascebatur: hic enim si pecora vel demortua sunt vel etiam deteriora facta quod interest praestabitur si scisti, si ignorasti pensionem non petes.

... if you have let pasture in which poisonous weeds were growing: for here, if farm animals have died or suffered harm, full damages will be payable if you knew; if you were unaware, you will not be able to claim the rent.

This is incomplete. We will come to the bit which precedes it in a minute. The liability for the harm to the cows is limited to the case in which scisti, you knew of the danger. Then there is a lesser conse­quence for si ignorasti, if you were unaware. We will come back to that.

The preceding lines show that Ulpian also envisages a liability to pay full damages at least in some cases in which the locator was ignorant of the defect. D.19.2.19.1 (Ulpian, 32 On the Edict):

Si quis dolia vitiosa ignarus locaverit, deinde vinum effiuxerit, tenebitur in id quod interest. Nec ignorantia eius erit excusata. Et ita Cassius scripsit. Aliter atque si... If he lets defective vessels unawares and then wine pours out he will be liable for the full interest of the conductor. And his ignorance will not be excused. And so Cassius wrote. It is different if... [and here follows the case of poisonous weeds].

The contrast between Defective Vessels and Poisonous Weeds is much debated. It may be right, I incline to think it is, to say that the former indicates a warranty liability against latent defects which render the thing unfit for the enjoyment to be expected from it. That is, unfit for its ordinary purpose. A pasture with poisonous weeds is not unfit. Much as a Christmas pudding is not unfit if it has lumps of metal in it (silver charms or coins). Looking for them is part of the user.

This text is dealing with initial defects which impair the enjoyment. But interruptions can supervene when all seems to be going well. Starting from fault liability, there is certainly an obligation on the locator to abstain from fraudulent and malicious schemes to deprive the conductor of his enjoyment. That is the elementary outwork of the bonae fidei character of the contract. Harassment to get a tenant out would be caught by this. So also a concocted tale of trouble in the foundations with the same end in view, emptying the building on the pretence of major repairs. Further, the locator was liable if he failed to keep the res in repair for its ordinary use. This liability seems to be based on culpa. That is he must do what is reasonable to maintain the res. Liability is for unreasonable failure. There is a warranty liability for eviction. That is, if the conductor is excluded because, as it turns out, the locator let out something which did not belong to him and then the owner came forward and asserted his right. D.19.2.9 pr. (Ulpian, 32 On the Edict):

Somebody buys a house or farm in good faith and lets it to me. Then he is evicted, without there being any fraud or blame (dolus or culpa) on his part. Pomponius holds that he is nonetheless liable ex conducto (on the contract of hire) to the conductor on the ground that he is bound to ensure that he is allowed to enjoy that which he hired (ut ei praestetur frui quod conduxit licere).

This text actually contains a suspect addendum which asserts that the locator should be excused if he is prepared to provide an equivalent substitute. It then goes on to consider the special position of hire by a usufructuary who reveals that he has only that limited interest. If the locator-usufructuary dies (thus ending the usufruct) during the agreed term and the dominus, his title now cleared of the limited interest, excludes the conductor, the usufructuary’s heir is not liable for the premature exclusion. Because termination of the usufruct is a foresee­able risk in such transactions.

We have been considering the locator’s liability to pay full damages. Even where he is not so liable he may have to give the disappointed conductor something less, namely a remission of the merces (reduction of the reward). This is hinted at in the concluding words of Poisonous Weeds, considered earlier. This lesser remedy is conveniently con­sidered under the head of payment.

C. Payment It is easiest to take this topic out, though strictly obligations to pay or to remit payment belong within the actions whose range we have just been considering. The reason for separating it out is that, as we saw, it depends on the particular contract whether payment falls on the locator or the conductor. Hence it comes within now one and now the other action.

The general observation is that, quite apart from the question of liability for damages, there are circumstances in which the party expecting payment cannot have it or, if he has already been paid, cannot retain it. Where payments are by instalments over time this remission may apply only to portions of the whole time. The starting point is this. He cannot have the reward if the other does not get the enjoyment reasonably to be expected.

Hence if flood or earthquake or drought destroys a harvest the locator of the farm must remit the rent for the year, for productive cultivation is the user to be expected. There is no warranty against exceptional disasters. So no damages. But the locator bears the loss in the sense that he cannot take the rent. (If a very good year follows he is allowed to make up the remission.) Not every disappointment leads to the conductor’s having this remission. Every expected user carries, so to say, its own internal risks. The dangers of his own operation (ex ipsa re) have to be borne by the conductor. The line is not easy to draw. Weeds in his corn, wine which comes out sour. Such things are within the normal risks of cultivation and viticulture. The case of Poisonous Weeds is problematic in this respect and may here be distorted by interpolation or gloss. It says that the locator must remit the rent if mala herba of which the locator was unaware kill the cows. But this looks like a risk ex ipsa re, from the thing itself, which ought to mean that the conductor has to put up with it and bear the loss. Just possibly a difference was taken between a defect present ab initio and one which supervened.

The proposition that payment could not be demanded unless the party to pay got the enjoyment reasonably to be expected needs to be adapted to fit locatio of labour and of tasks-to-be-done. The worker letting out his labour had to put himself at the disposal of his conductor but he was entitled to his whole wage �if it was not through him that he could not perform his work (si per eum non stetit quo minus operas praestet)' (D.19.2.38 = Paul, Rules). One would want to know more about this. The bricklayer on site unable to build because of the pouring rain is no doubt covered. I am less sure about the one who is prevented from even turning up, as by being run over on his way to begin a week's employment. Nevertheless Paul's statement is widely put. Compare D.19.2.19.9 (Ulpian, 32 On the Edict):

A secretary let out his labour. Then the conductor died. The Emperor Antoninus in conjunction with the Deified Severus wrote this rescript in reply to the petition of the secretary: �Since on the facts as you give them it was not through you that you could not perform your services for Antonius Aquila, then, if you did not receive wages from someone else in that same year, it is right that the contractual expectation should be fulfilled.'

So far as payment for a task to be done is concerned, payment to the conductor for building a house, repairing a river-bank and so on, it is necessary to go very carefully. The difficult question is, What happens if, after a great deal of time and effort has been put in, the product of the labour is destroyed without fault on either side? The half-built house is burned down, an earthquake shakes away a nearly complete scaffolding, a painting is destroyed by a flood just as the finishing touches were going to be applied. The locator does not get the product which he was after. Does he have to pay? If the work had been complete he would have had to bear the risk in all respects. If payment was to be made stage by stage the same applies as each stage is finished. If approval is needed before payment then if it can be shown that all was complete except approval and, further, that approval would not have been withheld, he must pay. That leaves the case in which the work, or a stage of it if it is so divided, is unequivocally incomplete. Some texts speak of the �risk’ (periculum) being on the locator. But it is not clear that this means that he has to pay for the work done. It may mean only that nobody is going to make good the destruction of his property (D.19.2.59,^[28] D.19.2.62).^[29]