Some typical problems
Apart from that, the tenant seems to have been surrounded by potential sources of disaster. A mere glance over the Digest reveals that his life cannot have been unexciting. Lofty as they were, the insulae were far too lightly built.
Builders tried to economize. Thus it could happen that the piling up of earth against the wall of a house by a neighbour had disastrous effects: the earth was soaked by continual rain storms, and from the seepage of moisture the wall became wet and broke down.39 The collapse of houses (ruina) is frequently mentioned, i.a. as one of the typical incidents falling outside the ambit of custodia liability.40 Alfenus (D. 19, 2, 30 pr.) discusses the case of an owner of an insula who had leased it, for a sum of 30, to a principal tenant, who in turn sublet the various cenacula for a total of 40. Now the owner demolishes the building, allegedly in order to prevent its collapse. Can the principal tenant sue him for a refund of his rent (30) or also for what he has lost on account of the fact that he could not extract any profits from the subtenants? In D. 19, 2, 27, 1 we meet a tenant who decides to move out "timoris causa".[1757] Does he have to pay the full amount of the rent agreed upon? Answer: not if there were grounds for his fears, even though a danger might in fact not have existed. What happens if a tenant has paid his rent for one year in advance and then, before the lapse of that year, the building collapses or burns down? He may reclaim the money for the remaining time,[1758] not, interestingly, with a condictio,[1759] but with the actio conducti.Fires were, of course, the other great disaster which all inhabitants of an insula constantly dreaded.[1760] Thus we find lessors insisting on the incorporation of special clauses into the contract: that the lessee may not bring easily inflammable substances (like hay) into his lodgings[1761] or even that he may not have a fire ("ignem ne habeto").[1762] In case of contravention, the lawyers were prepared to grant the actio locati to the lessor, irrespective of whether a third party had in actual fact set the hay on fire or whether—in the second example—the house had not burnt down on account of the lessee's fire but due to casus fortuitus.[1763]
All these texts are suggestive in their implications.
But they also show that the Roman lawyers dealt with the particulars of lease of residential space in very much the same manner as they dealt with any other problem brought before them. They appear to have been insensitive to the social dimensions of this type of contract,[1764] and certainly they did not make any special effort to relieve the lot of tenants. Generally speaking, therefore, the Roman law of lease was landlord-friendly and it appears to have been entirely out of tune, at least by modern standards, with the social and economic problems of an ever-growing urban tenantry.4.
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