The position of the lessee

(a) His protection against the lessor

We have thus far been discussing the requirements for a contract of lease, to which obligations on the parts of both the lessor and the lessee

^ć The example is not as outdated as it might seem.

^a Ulp. D. 9. 2. 27. 9 (cf. also Coll. XII. VII. 71.

^ć In the words of § 278 BGB.

^ć Culpa in eligendo has often been regarded as spurious: cf. e.g. Wolfgang Kunkel. "Diligentia", (1925) 45 ZSS 329 sqq.; Manlio Sargenti, "Problemi della responsabilita contrattuale", (1954) 20 SDHI210; von Lubtow, Lex Aquilia, p. 160. Contra: Mayer-Maly, Locatio conductio, p. 199; Geoffrey MacCormack, "Culpa in eligendo", (1971) 18 RIDA 539; Frier, (1978) 95 ZSS 256 sqq.; Rolf Kniitcl, "Die Haftung fur Hilfspersonen imromischen Recht", (1983) 100 ZSS 399 sqq.

“ Knutel. (19831 100 ZSS 404.

^ć For further details about the vicarious liability of tenants and for a discussion of Proc./Ulp. D. 9. 2. 27. 11 and Coll. XII. VII. 9. see Frier. (19781 95 ZSS 256 sqq. and Knutel. (19831 100 ZSS 391 sqq. it gave rise, and when and under which circumstances the contractual relationship came to an end. A final comment has to be made concerning the position of the lessee. From the point of view of a modern observer, it was stunningly weak. Not only did the conductor not acquire ownership or a limited real right, he did not even become possessor. He was a mere detentor. As a result of this, he did not have any protection through actiones in rem; nor could he avail himself of the possessory interdicts. Thus, the lessor could at any time expel his tenant, even where the parties had agreed upon a specific term of tenancy.

(b) Alienation of the leased property by the lessor

Most precarious, too, was the tenant's position if the lessor sold the leased property to a third party. Once ownership had been transferred, such a third party could evict the tenant, who again did not have any protection against the new owner/possessor. The latter did not even commit a breach of contract, since he did not become party to the contract of lease. Again, the only remedy the tenant could resort to, once he had been evicted, was the actio conducti against his lessor, i.e. the old owner/vendor. In order to achieve at least some indirect protection for the tenant, the lessor/vendor was required to include a special pactum in the contract of sale to the effect that the purchaser would allow the tenant to remain on the premises for the term of the lease:

"Qui fundum fruendum vel habitationem alicui locavit, si aliqua ex causa fundum vel aedes vendat, curare debet, ut apud emptorem quoque cadem pactione et colono frui et inquilino habitare liceat: alioquin prohibitus is aget cum eo ex conducto."²⁴⁸

But this was not really a satisfactory solution to the problem. Of course, such a pactum did not give the tenant any direct claim or defence against the purchaser.²⁴⁹ That would have been a direct contract

^2.6 Cf. supra, p. 356.

^2.7 It must be kept in mind, though, that this result was much less peculiar in Roman law than it would be in a modern legal system. For whatever remedy (real or personal") the lessee might have had—ultimately everything boiled down to condemnatio pecuniaria.

Gai. D. 19. 2. 25. 1. C{. also C 4, 65, 9 (Alex."): "Emptori quidem fundi necesse non est stare colonum, cui prior dominus locavit. nisi ea lege emit, verum si probetur aliquo pacto consensisse, ut in eadem conductiorte maneat, quamvis sine scripto, bonae fidei iudicio ei quod placuic parere cogitur." On [he reception (and the "productive misinterpretation"") of this text by the glossators, cf. E.J.H. Schrage. "Emptio (Nondum") Tollit Locatum". 1978 Actajuridica 3 sqq.

*⁴ Wesenberg. Vertrage zugunsten Driller, pp. 41 sqq.: Mayer-Maly. Locatio conductio, pp. 43 sqq.; Genius, op. cit., note 115, pp. 35 sqq. in favour of a third party, which, as we know, was anathema to the Roman lawyers.²⁵⁰ The pactum did, however, improve the position of the tenant in so far as the purchaser had to think twice before he resorted to expulsion: for, whilst the tenant still had only his actio conduct! against the lessor/vendor, the latter was now able to take recourse against the purchaser and to sue him with the actio venditi for breach of his informal promise.

(c) Emptio tollit location

The authors of the European ius commune usually summed up the position which had been handed down to them from Roman law in the maxim "emptio tollit locatum": sale breaks hire. This is as crisp and poignant as it is inaccurate. First of all, it is not the contract of sale that has any detrimental effect on the relationship between the lessor/vendor and his tenant. It is only on account of the subsequent transfer of possession and of ownership that the lessor/vendor makes it impossible for himself to carry out his obligation under the contract of lease (namely to provide uti frui praestare licere), and that he exposes the tenant to the risk of being expelled by the purchaser.²⁵¹ And the second point: the contract of lease was, of course, not "broken" by either sale, transfer of ownership or any other transaction.

Harsh as it is, this rule, once again, cannot really be said to reflect a social bias on the part of the Roman lawyers. It was not designed as an instrument to oppress poor tenants. It was the logical consequence of certain basic and general concepts about real rights and personal rights and about their interplay and relationship. The actual cases cropping up in legal practice do not seem to have necessitated fundamental rethinking;²⁵² the fairly roundabout chain of contractual actions (tenant against lessor/vendor—lessor/vendor against purchaser) by and large

³¹ Cf. supra, pp. 34 sqq.

³¹ The position of the tenant, incidentally, was jeopardized not only on account of a transfer of ownership following a contract of sale; if, for instance, the lessor granted an ususfructus over the leased property to a third party, the same problem could arise. The tenant could not prevail against the claims of the usufructuary. For further details, see Mayer-Maly, Locatio conductio, pp. 46 sqq.;J.A.C. Thomas, "The Sitting Tenant", (1973) 41 TR 35 sqq.

Mayer-Maly, Locatio conductio, pp. 45 sq.; Genius, op. cit., note 115, pp. 39 sqq.; Frier, Landlords and Tenants, pp. 64 sqq. (who discusses the "nuisance value" of expulsion). appears to have worked well enough to provide a not inconsiderable deterrent against heedless expulsion."⁵³

(d) D. 43, 16, 12 in fine

"Emptio tollit locatum" became part and parcel of the European Roman common law;²⁵⁴ on the eve of codification it represented pandectist doctrine²⁵⁵ and obtained in parts of Germany.

Digesta 43, 16, 12 in fine is a post-classical addition and does not represent classical Roman law.²⁵⁹ But in the days when the law of the Corpus Juris Civilis was still applicable and therefore had to be approached under systematic rather than historical auspices, the text provided—depending on the interpreter's point of view—either an awkward stumbling block or a welcome inroad into "sale breaks hire". ^{[1912] [1913]}

(e) Huur gaat voor koop

In a much more fundamental way, secondly, this principle came to be attacked during the eighteenth century by the natural lawyers. They proceeded from the basic proposition of a promise as being "aut via ad alienationem rei, aut alienatio particulae cujusdam nostrae libertatis".²⁶⁰ Thus, the lessor, by concluding the contract of lease and thereby promising to let the tenant use and enjoy the property, had parted with and transferred a part of his own liberty {namely to use and enjoy the property himself) and he was therefore unable subsequently to confer this same particulum libertatis on another person, the purchaser.

The third source of opposition against emptio tollit locatum can best be located in 17th- and 18th-century Dutch law. Here, interestingly, the fronts were reversed in that the main thrust did not come from doctrinal jurisprudence but from local practice.

"Dan by ons gheeft alle huur ccnig eigen rccht, als zijnde een bruick van korten tijd: 't welck daer nit blijckt, dat het vcrhuirdc land ofte huis zijnde verkocht, den huirman evenwel sijn huir rnoet volghen."

These are the words of Hugo Grotius,^[1915] and we find similar statements in the works of all the other Roman-Dutch authors.^[1916] They tie in with the custom in other regions ("Moribus tamen Brabantiae, Flandriae, Hannoniae, aliarumque quarundam harum regionum contrarium ius est, ubi dictat lex municipalis potiorem esse conductionis quam emptionis causam"),^[1917] go back to medieval Germanic law^[1918] and were usually based, dogmatically, on the following consideration: "Moribus insuper... jus reale conductor adquirit, sic ut a successore singular! ante tempus expelli nequeat....^1,266 The position was summed up succinctly in the maxim "huur gaat voor koop". Where they dealt with Roman law, on the other hand, the Dutch jurists stressed the principle of emptio tollit locatum.²⁶⁷

It was under the influence of natural law that the great codifications at the turn of the 19th century departed in a more or less radical fashion from the Roman rule.²⁶⁸ The South African courts apply "huur gaat voor koop",²⁶⁹ and § 571 BGB states that

"if the leased land is sold to a third party by the lessor after delivery to the lessee, the acquirer takes the place of the lessor in the rights and obligations arising from the lease during the existence of his ownership."

Thus, in most modern legal systems the tenant is well protected against the acquirer. It must be realized, though, that from a dogmatic point of view this presents something of an anomaly: for the tenant, on the basis of a conceptually purely obligatory contract of lease, acquires a quasi-real position, a "modified and exceptional" real right.²⁷⁰

12.