A QUESTION OF DATES

Establishing the exact point at which innovations were introduced into a specific area of Roman law is rarely an exact science. Not only are the sources incomplete, but as Alan Watson rightly surmised: вЂњthe Roman jurists do not seem much interested in recording when and why particular rules were intro- ducedвЂќ.¹³ Letting and hiring is no exception.

Little is known about the origin and pre-history of this contract apart from an approximate date of inception in the second half of the second century BC (if not before) and its appearance as a iudicium bonae fidei in Quintus Mucius Scaevola's list cited by Cicero.¹⁴ Since it is generally assumed that most of the developments in praetorian law occurred prior to 100 BC, this provides a comparatively short period of time in which much of the law of letting and hiring came into existence.¹⁵ It may well be asked at this point whether the notion of the hereditability of locatio conductio rei may also have arisen during this period. There are two pieces of evidence in support of this suggestion.

12 For the purposes of this chapter, the contract will be viewed merely as the act that creates the rights and duties arising from the lease.

13 Watson, вЂњLaw and SocietyвЂќ (n 1) 28; cf A Watson, The Spirit of Roman Law (1995) 206.

14 Cicero, De Officiis, 2.17.70.

15 One possible reason for this short period of development is that many of the rules governing letting and hiring in Roman public law were taken over and adapted to provide the foundation for the contract of letting and hiring in Roman private law.

The first piece is a statement by Cicero in the Verrine orations.^[260] In the second book of the Verrine orations, Cicero went to great lengths to expose the full extent of Verres' corruption. Part of this tactic involved exposing malpractices that occurred during his term as praetor urbanus in 74 BC.

In the context of this discussion Cicero recounted the story of a contractor of public works who had been tasked with the maintenance of the temple of Castor. The contractor had completed the work, but had died before the contracts could be wound up officially as required by law. The son and heir of the contractor, who was a minor at the time, was charged with winding up the contract and Verres attempted to extort money from the minor by threatВening to withhold the official approval of the maintenance work (probatio operis) required by law. Since Cicero did not deem it necessary to analyse the legality of transferring this duty of completing the contract onto the heir, the only conclusion that may be drawn from this discussion is that the heir of the contractor had inherited the contractual obligation from his father. Although this example is taken from public law, it is not without worth. Letting and hiring in Roman public law antedates the consensual contract of lease in Roman private law by roughly two centuries and it has been suggested by scholars such as Mommsen, for example, that it provided the historical blueprint for lease in Roman private law.^[261] Furthermore, the fact that Cicero, who had a profound knowledge of and interest in Roman law, mentions it merely in passing is an indication that it was an accepted practice in Roman public law and therefore must have existed for some time.

There is another, even more compelling, piece of evidence from the realm of Roman private law. Cicero, in his letters to Atticus, mentions that he inherВited an urban tenement from the Puteolan banker, Marcus Cluvius.^[262] From his discussion of the matter it appears that the existing leases relating to the tenements were not affected by the death of the locator and that it was only as a result of their dilapidated state that the tenants decided to terminate their leases unilaterally by moving out. Once again, the matter-of-fact way in which it is mentioned by Cicero suggests that it was well established in law at this point.

These two examples provide strong evidence that the hereditability of locatio conductio rei must either have formed part of this contract from its inception (which is a possibility, but cannot be proved or disproved either way) or was introduced into Roman private law between the mid-second century BC and the first century BC. Irrespective of these dates, however, it is evident that the issue of the hereditability of locatio conductio rei predates juristic discussion of the sophisticated notion of the law of obligations found in classical Roman law. It is generally accepted that the theoretical concepВtion of the law of obligations and the classification of Roman contracts came about only in the classical period of Roman law.^[263] Thus, the issue of the origin of the hereditability of lease cannot be explained merely in terms of obligaВtions, though it subsequently provided some justification for it as is evidenced by the discussion of this matter in modern textbooks on the subject.

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Source: Cairns J.W., Plessis P.J. du. (eds.). Beyond Dogmatics: Law and Society in the Roman World. Edinburgh University Press,2007. - 236 p.. 2007

A QUESTION OF DATES

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