The problem of risk

(a) Pcricuhun locatoris

Over the preceding pages we have been discussing the locator's liability under the contract of locatio conductio (rei). Such liability, as we have seen, can be based either on fault or on a guarantee (be it express or implied), and the conductor can avail himself of the actio conduct! to claim damages.

Cf. Horst Heinrich Jakobs, Werner Schubert. Die Beratung des Btirgerlichen Gesetzbudis, Recht dor Sdmldverhaltmsse, vol. II (1980). pp. 428 sqq.

For a discussion of the problems involved and of the casuistry, see Krampe, op. cit., note 167, pp. 11 sqq. For an interesting parallel, see the landlord's implied warranty of liability for leased dwellings in American law, developed on the basis of the following dictum mjarvis v. First National Realty 138 AppDC 369, 428 F 2d 1071 (DC Cir. 1970): "... in the case of the modern apartment dweller, the value of the lease is that it gives him a place to live.... When American city dwellers, both rich and poor, seek 'shelter' today, they seek a well known package of goods and services.... In order to reach results more in accord with legitimate expectations ot the patties and standards of the community, couns have been gradually introducing more modern precepts of contract law in interpreting leases." The concept of implied warranty of habitability (representing one of these "more modern concepts") has been adopted by the Restatement on Landlords and Tenants in 1976. It is criticized by Frier, Studies Schiller, pp. 66 sqq., who argues that the Roman law of urban lease knew no warranty of this type and was thus more "socially adequate" than the modern American lease law.

^IH7 Heinrich Honsell, "Positive Vcrtragsvcrlctzung", 1979 Jura 1%.

Cf. e.g. Walter Wilburg, Die Elenmitc des Schademrechts (1941), p. 141.

^IH" "Protokolle", in: Mugdati, vol. II, p. 814. Cf. Peter Schlechtriem, Vertragsordnung nnd ausservertraglidie Haftung (1972), p. 337; Ingo Koller, Die Risikozuredinung bei Vertragsstomn- gen in Atistauschi'erhaltnissen (1979), pp. 118 sq. Cf. also Krampe, op. cit., note 167, pp. 38 sqq.

Cf. Wieacker, Privatreditsgesdiichte, p. 47(1. down, with disastrous consequences, upon the orchard. Neither of the parties can be blamed for any of these events. Yet, one of them will "feel" the loss: either the locator—who has let his property but may now lose out on the rent—or the conductor, who might have to pay the rent without having been afforded the benefit of frui licere. The former solution would be in accordance with "casum sentit dominus": after all, the locator is still owner of the object. In favour of the second alternative, it may be argued that a valid locatio conductio had been concluded and that the locator had done everything that could be expected of him; thus, the conductor should also have to carry out his part of the arrangement, i.e. to pay the rent. It is obvious that this is not a question of liability (for damages). We are dealing with the problem of risk. As in the case of sale/⁹¹ "risk" in this context refers to the question whether counterperformance can still be demanded where the performance has become impossible. For an answer we must turn our attention to Ulp. D. 19, 2, 15, 2:

"Si vis tempestatis calamitosae contigerit, an locator conductor! aliquid praestare debeat, videamus. Servius omnem vim, cui resisti non potest, dominum colono praestare debere ait, ut puta fluminum graculorum sturnorum et si quid simile acciderit, aut si incursus hostium fiat."¹'-'²

As a rule, the risk was on the lessor: periculum locatoris.

^H Cf supra, p. 281.

^K On this text cf. Kaser. "Periculum locatoris". (1957) 74 ZSS 169 sqq.; Theo Mayer-Maly, "Hohere Gewalt: Falltypen und Begriffsbildung", in: Festschrift für Artur Steinwenter (1958), pp. 60 sqq.; Giuseppe Proverà, "Sul problema del rischio contrattuale nel diritto romano", in: Studi in onore di Emilio Betti, voi. Ili (1962), pp. 693 sqq.; Robin Seager, "Of'vis' and Weeds: D. 19, 2, 19, 2 and 19, 2, 19, 1", (1965) 31 SDHI 330 sqq.; Claude Alzon, "Les risques dans la 'locatio conductio"', (1966) 12 Labeo 312 sqq.; Watson, Obligations, pp. 110 sqq.; Hans Ankum, "Remissio mercedis", (1972) 19 RIDA 223 sqq.; Chorus, Handelen, pp. 149 sqq.; Molnar, ANRW, op. cit., note 143, pp. 666 sqq.; P.W. de Neeve, "Remissio Mercedis”, (1983) 100 ZSS 308 sqq.; Pinna Parpaglia, op. cit., note 7, pp. 4 sqq.; Ernst, (1988) 105 ZSS 541 sqq., 550 sqq.

^ll)SAlf. D. 19, 2, 30, 4. ^ra

Cf. supra, p. 193.

™ Cf. also Gai. D. 19. 2. 25. 6 ("Vis maior, quam Graeci fteoi) pCotv appellant"!; on this text. see. most recently. Theo Mayer-Maly. "Acquo animo ferre", in: MNHMHPetropoutos, vol.

¹⁹⁶ Ulp. D. 19. 2. 15. 2.

cultivation^[1871] and therefore has to be borne by the person responsible for and entitled to such cultivation: the conductor.^{[1872] [1873] More casuistry has been added by post-classical compilers to illustrate this distinction between the two parties' respective spheres of risk.lys A variety of other texts deal with the lease of residential space[1874] and attribute the risk of fire (incendium) as well as collapse (ruina) to the locator. Even if the conductor's frui licere is infringed due to aedificii vitia (forcing the locator to pull down the house or to carry out extensive repair works), the locator loses his right to claim the rent.[1875]}

(b) Remissio mercedis

Where a cornfield was destroyed terrae motu or where a house burnt down, frui became definitely and completely impossible. As a result, the conductor was entitled to a complete release from rent liability: periculum locatoris. Such remission then, as one can put it, was a matter of juristic law (formulary remissio). It has often been argued that the emperors went further and were prepared, under certain circum­stances, to grant relief to the lessee in cases where his harvest had been exceptionally poor: remissio mercedis as a matter of imperial clemency.^[1876] Thus, we would be dealing with two different institu­tions: deductio ex mercede^[1877] where the conductor has lost the enjoyment as such, remissio mercedis where he retains enjoyment of the res locata without, however, being able to obtain the yield that was to be expected.^[1878] Alternatively, it has been suggested that complete destruction of the harvest was a question of risk, whereas remissio mercedis was applied in case of a partial destruction of the harvest.^[1879] Imperial remissio mercedis has traditionally been seen either as an instrument of social policy designed to help tenants in distress^[1880] or as the product of administrative policy aimed at counteracting the decline of Italian agriculture.^[1881] It has been shown, however, that the expressions, "deducere ex mercede" and "remittere mercedem", were not used with a strictly technical meaning in mind.²"^[1882] More particularly, remissio mercedis could refer to both a complete and a partial remission of rent.²"^[1883] Above all, it appears that imperial remissio mercedis did not go beyond the confines of the risk rule.

"Cum quidam de fructuum exiguitate quereretur, non esse rationem eius habendam rescripto divi Antonini continetur, item alio rescripto ita continetur: 'Novam rem desideras, ut propter vetustatem vinearum remissio tibi detur.' "^[1884]"

One may reasonably infer from this that exiguitas fructuum in itself was not a ground for remission of rent. Lack of care and insufficient cultivation are the most obvious causes of a bad crop, which must be attributed to the lessee. But even where we are dealing with the normal vagaries of agriculture, the tenant cannot claim relief: he could have acquainted himself with the quality of the soil, with the geographical situation of the farm and with the general weather patterns of that region.^[1885] Likewise (to come back to the example discussed in D. 19, 2, 15, 5) the lessee of a wine farm cannot base his claim for remissio mercedis on the age of the vines: as a competent farmer, he should have known that vines decline in productivity after they have reached a certain age.^[1886] Thus, even where we are dealing with exiguitas fructuum, remissio mercedis can be granted only if it was due to vis maior. Or, in risk-related terminology: a bad harvest caused by vis extraria is nothing other than an instance of impaired frui.^{[1887] [1888] [1889] Imperial remissio mercedis, then, was not a separate institution; it was an instance of periculum locatoris.214 It neither substantially improved the position of the tenants, nor seems to have been based on economic motives. Its advantages, as far as we can see, were mainly a matter of procedure; for to approach the Imperial chancellery was easier than to institute a formulary action.215}

Bad harvests can be followed (or preceded) by abundant years. Where that was so, the lessor was entitled to refuse remissio mercedis or to recover what had been remitted.

"Papinianus... ait, si uno anno remissionem quis colono dederit ob sterilitatem,²'" deinde sequentibus annis contigit uberitas, nihil obesse domino remissionem, sed integram pensionem etiam cius anni quo remisit exigendam.... quid tamen, si novissimus erat annus sterilis, in quo ci remiserit? venus dicetur et si superiores uberes fuerunt et scit locator, non debere cum ad computationem vocari."²¹

The Roman rules relating remissio mercedis were applied through­out the history of the ius commune;^{[1890] [1891] [1892] but it always remained doubtful whether they had to be regarded as natural emanations of the contractual risk regime (the lessor is bound to afford frui licere; this entails that the lessee has to be able to reap the fruits of the land (percipere fructus rei); if he is prevented, on account of vis maior, from doing so, he has not received what is due to him under the contract and does therefore not have to pay the rent either)[1893] [1894] or as an extraordinary deviation from general principles, a special concession granted to the lessee by way of the ius "positivum" and based, ultimately, on equitable considerations.22"}

The latter view dominated, when, at the turn of the 18th and 19th centuries, Prussia,^[1895] France and Austria codified their private law. The French and Austrian legislators saw a parallel to the equally exceptional rules of laesio enormis relating to contracts of sale and they thus determined that remissio mercedis was to be granted only if the actual yield was less than half of what could normally be expected.^[1896] To the fathers of the BGB, of course, the idea of an equitable interference with contractual terms in cases of changed circumstances did not appeal^[1897] and remissio mercedis thus shared the fate of laesio enormis^[1898]* and of the clausula rebus sic stantibus :^{[1899] [1900] it was not incorporated into the new code. The lessee was advised to insure himself against a typical disaster such as crop failure on account of hail; also, it was argued that he was always free to insert a clause into the individual contract reserving him the right of remissio mercedis. The liberalistic concept of the BGB collapsed, however, in the years of economic crisis following the First World War. As with both laesio enormis and clausula,225 remissio mercedis experienced a remarkable renaissance. It was reintroduced by way of special legislation[1901] and managed to establish itself so firmly that in 1985 it was able to crown its career by finally gaining entrance even into the BGB.[1902]}

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