The quest for security of tenure

Lease, in modern law, is hardly less important than sale. More particularly, the lease of residential space is of great social and economic importance. Not everybody can afford to (or wants to) own his own home.

¹⁴ Watson, Evolution, p. 16. Originally there seems to have been no distinction between selling and buying and letting and hiring. This would account for the promiscuous use of sale and hire terminology in early sources and is particularly plausible for the time before the introduction of money. Both "sale" and "letting and hiring" were, at that stage, exchange transactions: merchandise for merchandise in the one instance, merchandise for the letting of a thing or services in the others. The common denominator was that both parties delivered and received something. The fact that such transfer in the one case was intended only for a certain period was a more refined consideration which became important only gradually. As a consequence, sale was carved out as a transaction with a characteristic and homogeneous structure which was distinctly different from all the other types of bilateral agreement. A indicium empti venditi, and with it a technical sale terminology, was developed. Thus, a distinction was drawn between sale and all the fairly disparate and heterogeneous exchange deals that remained of the old uniform category and which came to be referred to as locatio conductio.

War many houses had been destroyed or were uninhabitable; at the same time, millions of refugees and expellees from the East were in search of accommodation. Under such circumstances prospective tenants have an interest in the existing residential space being controlled and managed in an efficient manner; actual tenants who are already living in rented housing need protection against their landlords who might be tempted to exploit the situation and to demand exorbitant rents. Thus, in the course of time, a whole body of law was developed, amending, adapting and superseding the law of lease as it had once been laid down in the BGB.^[1731] Poorly drafted and scattered over several enactments,^[1732] this body of law rests on the cornerstones of notice protection and rent control. It introduces a great deal of ius cogens into the landlord-tenant relationship and seems to have a greater affinity to public law than to private law. The contract of lease, as it exists in modern German law, is no longer characterized so much by the private autonomy of the contracting parties; it has been converted into something of a publicly regulated, social owner-and-user relationship.^[1733] In Germany these changes partly reflect a balancing of interests determined by the "Constitution". For whilst the Basic Law of 1949^[1734] contains a guarantee both of private property^[1735] and of private autonomy,^[1736] it also acknowledges that property imposes duties and that its use must serve the public weal.^[1737] Property rights are limited in the social interest and freedom of contract must not become an instrument of domination, but has a social function too.

Other modern industrial societies, of course, have had to cope in similar ways with the "quest for security of tenure". But whereas the individually inclined French seem to be on the way back to the regulatory mechanisms of market forces,^[1742] the English legislator

"gives a distinctly higher preference to the interest of tenants in remaining in their homes.... The middle class ideal of owning your own home and garden has in fact so infused English thinking that those who cannot afford to buy their homes are given the next best things; security for one, two or three lives."^[1743]

In comparison with its modern descendant, to which copious Acts of Parliament, voluminous court decisions and piles of literature have been devoted, the Roman lease may appear to be a fairly poor thing.^[1744] No particular concern for security of tenure is apparent from the pages of the Digest, none for substantive fairness of rent; hardly any protective legislative intervention is recorded, and only a comparatively modest amount of case law dealing with problems of lease can be found in D. 19, 2. Matters were left largely to the agreement of the parties.^{[1745] [1746] [1747]} The institution of giving notice was unknown. Rooms were either let for a certain time or, if no such limit had been set, the contract could entirely unceremoniously be terminated at any time by either party.

2.