The duties of the conductor

(a) Payment of rent, cultivation; the standard of care

The conductor, obviously, had to pay the rent. The due date was usually specified by the parties;^[1903] in case of doubt, payment postnumerando (i.e.

after the lease, or a payment period that might have been set, had come to an end) seems to have been the rule.^[1904] Apart from that, the lex locationis frequently imposed further duties on the conductor, who, in turn, was obliged to comply with these terms.^[1905] Tenant-farmers, in particular, were required to cultivate the lessor's land in due season and also to keep farm buildings in good repair. A clause to that effect seems to have been so common, and it tied in so well with the official policy of preventing soil-exhaustion and deterioration into wasteland, that it came to be implied as a contractual duty, irrespective of whether it had been specified in the lex locationis or not.^[1906] Failure to cultivate entitled the lessor to bring the actio locati and to sue his tenant for damages.^[1907] ^{^[1908] ^[1909] The legal vehicle for the recognition of such a duty of cultivation was, of course, the "ex bona fide" clause contained in the formula of the actio locati: if the tenant farmer let the land lie fallow, he did not do what, in good faith, he ought to have done under a contract of (agricultural) lease. With regard to other objects of lease, nothing so specific was required of the conductor. In general, one could expect him at least to take good care of the lessor's object and to see to it that its condition did not deteriorate during his tenure: "Item prospicere debet conductor, ne aliquo... corpus deterius faciat vel fieri patiatur.^1,234 If, in fact, the object did deteriorate and if such deterioration was due to the lessee's negligence, the lawyers were again prepared to grant the actio locati against him.
For one of the earliest reported examples we may turn to Ulp. D. 19, 2, 13, 7: "Exercitu veniente migravit conductor, dein de hospitio milites fenestras et cetera sutstulerunt.... Labeo autcm, si resistere potuit et non resistit, teneri ait, quae sententia vera est.^1,235
The tenant abandons the premises, because an army is approaching.^[1910] Thus, he is not in a position to prevent the soldiers from quartering in the abandoned dwelling and from damaging it. If he could have done so, had he not run away, he is liable to the locator. Thus, it is the possibility of resistance that gives rise to the liability for damages. The tenant in question did not act as an ordinary tenant should have acted in such a situation; his conduct, though not in itself harmful, enabled the soldiers to loot the premises and was characterized by an element of blameworthiness. It is on the basis of this and similar decisions that culpa was eventually recognized as the basis of the conductor's liability.^[1911] This fitted in well with the utility principle, since locatio conductio rei is an onerous contract, benefiting both the lessor and the lessee:.. sed ubi utriusque utilitas vertitur, ut in empto, ut in locato, ut in dote, ut in pignore, ut in societate, et dolus et culpa praestatur.^1,238 Again, one has to remember that the standard of conduct required of the tenant, and with it the concept of culpa, "was determined by the bona fides relationship between landlord and tenant, therefore by a socially conditioned standard of conduct". Thus, it was in principle an objective standard, "oriented to the deed, not to the doer".“⁹
(b) Vicarious liability?
Problems could arise in cases where the lessor's property was not damaged by the tenant himself, but by one of the slaves (or other persons) who worked for him and whom he had brought onto the premises. Could the tenant be held liable, not only for his own fault, but also for the fault of others? One of the key fragments, in the present context, relates to a drowsy furnace-tender:²⁴"
"Si fornicarius servus coloni ad fornacem obdormisset et villa fuerit exusta, Neratius scribit ex locato conventum praestare debere, si neglegens in eligendis ministeriis
The slave fell asleep, and, as a consequence, the house burnt down.
The master of the slave (i.e. the conductor) is liable ex locato, but only if he himself was negligent in choosing the slave. In other words: the conductor is not responsible for the fault of third parties, whose services he used, "to the same extent as for his own fault";²⁴² he is not subject to strict {= no fault) liability. For the actio locati to be successful, culpa must be attributable to him (and not only to the third party) in cases such as these too. Culpa remains the basis of the tenant's liability; it merely usually takes the form of culpa in eligendo.²⁴³ The tenant is held responsible, because it was ultimately he who endangered the house by selecting an unsuitable slave to tend the furnace. Along very similar lines runs the argument in Ulp. D. 19, 2, 11 pr.: "Videamus, an et servorum culpam et quoscumque induxent praestare conductor debcat?... mihi ita placet, ut culpam etiam eorum quos induxit praestet suo nomine, etsi nihil convenit, si tamen culpam in inducendis admittit, quod tales habuerit vel suos vcl hospites: et ita Pomponius... probat."
Here it is not so convenient to refer to culpa in eligendo, because to bring both his family and his servants onto the estate is not really a matter of choice for the tenant. His fault seems rather to lie in the fact that he exposed the lessor's estate to people who were prone to cause damage, without properly supervising them.²⁴⁴ Again, however, the tenant is held responsible for his own fault.²⁴⁵
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The duties of the conductor

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