The range of the lessor's liability

(a) Prevention offrui licere

Failure on the part of the locator to comply with his duties could, as we have seen, entitle the lessee to terminate the lease by simply moving out.^[1842] In addition, he was released (either partially or totally) from his obligation to pay the rent and, where he had already paid it, he could avail himself of the actio conduct! to claim it (or part of it) back.^[1843] Finally, the actio conduct! could be brought in order to claim damages.

For such a claim to succeed it had to be shown, as a rule, that the lessee had been prevented from frui licere due to the lessor's fault.^[1844] Take the case of the owner of an insula who had leased it, for a sum of 30, to a principal tenant. The latter had in turn sublet the various cenacula for a total of 40. The owner then demolished the insula. Question: what can the principal tenant sue for? Alfenus draws a distinction:

"si vitiatum acdificium ncccssario dcmolitus esset, pro portione, quanti dominus praediorum locasset, quod cius temporis habitatorcs habitarc non potuisscnt, rationcm duci ct tanti litem aestimari: sin autem non fuisset necessc demoliri, sed quia melius acdificarc vcllct, id fecissct, quanti conductoris intcrcsset, habitatores ne migrarent, tanti condemnari oportcrc."^[1845] ^{^[1846] ^[1847]}

If the evacuation of the house was not due to the fault ot the lessor, the lessee may claim back that part of the rent that he had paid for the time during which he could not use the house. If, on the other hand, the lessor had ordered the house to be demolished merely because he wanted to rebuild it in grand new style, he has to reimburse the (principal) tenant for his loss of profits (i.e. the amount of rent which the tenant had not been able to extract from his subtenants).

In other words: the lessee may claim his positive interest.'⁴⁵

(b) Choosing unsuitable slaves

Digesta 19, 2, 30 pr. provides an example (one of several) where the damages arose due to the fact that the lessee was prevented from frui licere. But the loss could also be caused by the res locata itself. One merely has to think of the hire of slaves in this regard. The slave may be of an unpleasant or criminal disposition; he may start stealing the lessee's property or engage in other harmful activities. In these instances, however, classical lawyers preferred to apply the rules relating to noxal {i.e. delictual) liability.¹⁴⁴’ The delict was not intrinsically linked to the contractual relationship; the lease had merely provided the occasion for committing it. But the situation was different where the slave turned out to be unsuitable for the very activity for which he had been hired. Two interesting texts discuss the contractual liability of the lessor for an unfree muleteer who had caused, due to clumsiness in handling it, the death of the lessee's mule:

"Servum meum mulionem conduxisti: neglegentia eius mulus tuus perii, si... eum locassem, non ultra me tibi praestaturum, quam dolum malum et culpam meam abesse: quod si sine definitione personae mulionem a me conduxisti et ego eum tibi dedissem, cuius neglegentia iumenturn perierit, illam quoque culpam me tibi praestaturum aio, quod eum elegissem, qui eiusmodi damno te adficeret."^[1848]

What is the basis of the lessor's liability under the actio conducti? A distinction is drawn by Labeo as to whether a specific slave was hired for this purpose or whether the selection of the particular slave had been left to the locator. If, in the latter instance, the locator has chosen an unsuitable slave, he is liable on account of culpa in eligendo. For the former alternative, too, culpa seems to be the decisive criterion—culpa in contrahendo, as one could put it. In which respect the lessor has been negligent is, however, left to speculation.

Perhaps his fault lies in not disclosing that the slave is too lazy, too weak or inexperienced to be a competent muleteer, but possibly he is blamed for the mere fact of having provided a slave who turns out to be incapable of properly handling a mule. In the latter case, the lessor's liability comes very close to a liability based on an implied guarantee that the object of the lease is fit for the purpose envisaged in the contract.

Such a guarantee could, of course, be undertaken expressly by the lessor.^[1849]* If the expectations raised by the lex conductionis were disappointed, the lessee could bring the actio conducti for his full interest. There were certain cases, however, apart from (possibly) the hire of muleteers, where the Roman lawyers took a guarantee to be implicit in the contract of lease. A variety of texts confirm that the problem of defect of title was handled in this way—just as, incidentally, in the case of emptio venditio.^[1850]

"Si quis domum bona fide emptam vel tundum locaverit mihi isque sit evictus sine dolo malo culpaque cius, Pomponius ait nihilo minus cum teneri ex conducto ei qui conduxit, ut ei praestetur frui quod conduxit licere."¹⁵"

If a third party asserted a real right in the object of the lease and evicted the lessee, the latter could take recourse against his lessor. It did not matter that the lessor had been in good faith himself and that not even negligence could be attributed to him. The lessee could reasonably expect not to have his frui licere disturbed by a third party with a-better right to the object leased to him. Ulpianus (D. 19, 2, 7)^[1851] ^{^[1852] makes it clear that the lessee could recover his (positive) interest: he could claim the 60 that he had been prevented from extracting from his subtenant, not only the 50 that he himself owed to the lessor.^[1853] Here, as in some other instances too,^[1854] ^{^[1855] the lessor could, however, avert liability under the actio conduct! by providing reasonable alternative accommodation: "plane si dominus non patitur et locator paratus sit aliam habitationem non minus commodam praestare, aequissimum esse ait absolvi locatorem^1,154}}

(d) Publicatio

Very similar (at least from the lessee's perspective) to these cases of eviction due to a defect in title on the part of the lessor were instances where the lessee was prevented from frui licere because of expropriation (publicatio).^[1856] The consequences of this form of State intervention on the lessor/lessee relationship are discussed in a most interesting, but very controversial text by Africanus.^[1857] Relating first of all the opinion of his teacher lulianus, he writes:

"Si fundus quem mihi locaveris publicatus sit, teneri te actione ex conducto, ut mihi frui liceat, quamvis per tc non stet, quo minus id praestes."

It appears that lulianus was prepared to grant a claim for the full (positive) interest even though, as he specifically states, the lessor could not in any way be blamed.

This amounts to liability on the basis of an implied guarantee that the lessee will not be expropriated. But would exposure to such far-ranging liability not constitute an unprecedented hardship for the lessor?^[1858] And how can this be reconciled with what Africanus says a few lines later:. et circa conductionem servandum puto, ut merccdem quam praestiterim restituas...: nee ultra actione ex conducto praestare cogeris"? This is Africanus himself speaking, and he makes it quite clear that the conductor should be able to reclaim only the rent that he might have paid and nothing more. For centuries, one has tried to interpret Julian's statement in this light,^[1859] ^{^[1860] but it is very difficult to see how "teneri te..., ut mihi frui liceat" can be understood to mean anything but a claim for the conductor's interest. Today it is no longer necessary to try at all costs to reconcile divergent views of Roman jurists for the sake of extracting easily applicable rules from the sources. Nor do we have to assume, more specifically, that Africanus only endorsed what his teacher lulianus had pronounced. Classical Roman law developed in a casuistic fashion and, particularly where blanket clauses left a lot of leeway, controversies were bound to arise.^,vl This seems to have been the case in the present instance, where a decision had to be taken whether, on the basis of the precepts of good faith, an actio conduct! should be granted or not. lulianus (whom we generally see vigorously using the ex bona fide clause inherent in the iudicia bonae fidei as a motor for law reform)^[1861]" was evidently prepared to hold the lessor liable under the actio conduct!.^[1862] In this particular case, however, his opinion does not seem to have prevailed; Africanus, about 20 years lulianus' junior,^[1863] rejected it: cautiously and most politely, but none the less quite clearly. ⁶³ (e) Leaky vats and toxic plants
Another situation in which the locator's liability was arguably based on an implied guarantee brings us back to an old acquaintance, the fragment "Si vas".^1(S4 It deals with emptio venditio, but says in the end: "[Q]uod et in locatis doliis praestandum Sabinum respondisse Minicius refert." This is confirmed by another celebrated text which deals more directly with the hire of (wine) jars:
"Si quis dolia vitiosa ignarus locaverit, deinde vinum effluxcrit, tenebitur in id quod interest nee ignorantia cius crit excusata: et ita Cassius'"⁵ scrips.it.""^>h
It is not easy to understand this decision and to reconcile it with the general principles.¹⁶⁷ The difficulties are compounded by the fact that, in the very next sentence, Ulpianus seems to proceed from quite a different principle:
"[Aj liter atquc si saltum pascuum locasti, in quo hcrba mala nascebatur: hie cnim si pecora vel demortua sunt vel ctiam deteriora facta, quod interest praestabitur, si scisti, si ignorasti, pensionem non petes et ita Servio Labeoni Sabino placuit."
In the one case, vats have been hired, but they were so damaged that the hirer's wine runs out.
The lessor is liable, no matter whether he knew about the defect or not ("nee ignorantia eius erit excusata"). The position is different where a pasture that is leased out contains poisonous herbs. The lessee's cattle die. But he can claim damages only if the lessor had known about the evil weeds.¹⁶⁸ How can these statements be reconciled? Do we have to assume that the Roman lawyers decided casuistically and that the search for a general principle determining the liability of the lessor would be futile?¹⁶⁹ Did the Romans apply two (or possibly three) different types of liability: strict liability in the case of wine jars and related objects, liability only for dolus as far as pastures were concerned¹⁷⁰ (and possibly culpa liability for all other objects)? What would be the reason for such a differentiated system of liability? Or is it possible to reconcile the two statements with each other? Attempts to do just that have not been lacking. But does one have to (effectively) rewrite either the first part of D. 19, 2, 19, 1—in order to achieve such reconciliation on the basis of liability for ^[1864] ^{^[1865] dolus only^[1866]—or alternatively the second half of it (so that the lessor would always be strictly liable)?^[1867] It is very difficult, if not impossible, to reconstruct the true position in Roman law. To my mind, the most convincing argument would run something like this.^[1868] The idea of different degrees of liability is bound to lead to problems. Why should the lessor of pasture always (i.e. even if he could have known that his field contained poisonous weeds) be liable only for dolus? And what is the justification for the strict liability of a lessor of vats for wine? Can one necessarily say that such a lessor implicitly promises to compensate for the loss of wine due to any leakage? And why does the text mention only these two extreme cases? Would all other objects have to be brought (together with the vats) under strict liability or (together with pasture) under dolus liability? These and other problems can be avoided only by postulating a common principle underlying both decisions.
This common principle can neither be strict liability (for then the reference to scientia on the part of the lessor in the second example would be futile), nor dolus liability (for then the reference to ignorantia non excusata^[1869] in the first example would not make sense). It can therefore only be that type of liability which was normally applied to the lessor anyway, and that is culpa.^[1870] Or, to formulate in terms of D. 19, 2, 19, 1: the lessor is liable if he knows about the defect in the object of the lease, or if his ignorance cannot be excused. It is within this framework that the characteristics of the object of the lease become relevant. Where defective vats are let, the lessor's ignorance can normally not be excused and his negligence can therefore be presumed. It is a matter for speculation why that was so: possibly, because it was the lessor who chose the vats and because the lessee did not have any opportunity to acquaint himself with their fitness for holding wine.^{1 6} Not so where a pasture is the object of the lease: the lessor's ignorance about the toxic plants is much more easily excusable; as long as he had not known about their existence, no fault is normally attributable to him. He cannot normally be held responsible for not knowing that there happen to be poisonous weeds growing somewhere on his land. The standard of diligentia required of a lessor of vats was therefore different from what could reasonably be expected of a lessor of pasture; the one was required to know about certain defects (and if he didn't, this was bound, as a rule, to constitute culpa), the other one not. (f) From Vlp. D. 19, 2, 19, 1 to § 538 BGB
Roman wine jars have left their mark on the history of private law. The subsequent fate of D. 19, 1, 6, 4 has already been briefly discussed.¹⁷⁷ Similarly interesting was the afterlife of D. 19, 2, 19, I.¹⁷⁸ Throughout the various periods of European jurisprudence there were those who tried to see this fragment as an expression of the general principle of liability for fault: only for fault, but for every kind of it. This is very much in accordance with what has been suggested above. Accursius's Glossa ordinaria provides a good and early example. "Sed cur aliter?", he asks, apropos the words "in quo mala herba" in D. 19, 2, 19, 1. "Respon. quia in doliis ignorare non debuit, in pascuis vero iuste potuit ignorare, nam quae facilius sciri possunt, si ignoratur, gravius coercentur." In other words: ignorance in the case of vats is inexcusabilis, whilst in the case of pasture it is normally excusabilis. This was still the prevailing opinion centuries later, during the times of the usus modernus and of pandectism.¹⁷⁹ Voet—among others—tried to rationalize the decision with regard to the wine jars on the basis that the locator had himself manufactured them:
"Praestetur denique reparatio damni totius, quod conductor ex rei conductae vitio passus est, sive sciverit locator vitium illud sive ignoraverit, quoties circa rem
originally given by the lessors. In the course of time, these aeddentalia negotii became so common that they were ultimately turned into naturalia negotii (Karlowa, Romische Rechtsgeschichte, vol. II (1901), p. 640). According to Stein (Fault, p. 103) the vats were defined by mere description. "In such a case the lessor is liable for all loss caused by his failure to supply goods which answer to that description." (But it is very doubtful whether the Romans recognized the lease of unascertained goods; there appears to be no evidence for this proposition.) For a similar view, sec Karl Heidrich, Das Versdmldeti beim Vertragsabschluss (1924), p. 21. Most recently, attention has been drawn to the economic background to D. 19, 2, 19, 1. Lessors of pasturage, frequently resident in Rome, could not be expected to know the toxic state of their plants, whereas the lessor of vats was easily able to determine whether the dolia were sound or not. Also, the lessors of pasturage (unlike the lessors of dolia) belonged typically to the upper class of society, and the jurists may not have regarded it as "socially practicable" to increase the scope of their liability: c(. Brigitte Clark, "Leaky Vats and Toxic Plants: Ulp. D. 19, 2, 19, 1 and the Liability of the Lessor", (1987) 50 THRHR 455.
¹⁷⁷ Cf. supra, p. 365.
^17K Cf. Luig, Festschrift Hiibner, pp. 132 sqq.
¹⁷⁹ Cf. e.g. Heineccius, Elementa Juris Civitis. §§ 924, 929; Gluck, vol. 17, pp. 361 sqq.; Arndts, Pandekten. § 311; Dernburg, Pandekten, vol. II, § 111, 2. locatam artificium versatur, et locator artitex est; quippe qui tune utique scire debuerat, quae suae artes erant...
This interesting but, de lege lata, somewhat far-fetched argument (which Voet also tried to promote in the case of sale)¹⁸' did not gain widespread acceptance. Much more influential, in the long run, was a train of thought that can be traced back to Donellus. "Quaeritur igitur", we read with regard to the two cases discussed in D. 19, 2, 19, I:¹⁸³
"cum utrobique sit ignorantia, cur, si pariter culpa est in locators, non pariter is obligetur m id quod interest.... Scio dici posse, ignorantiam istam non pariter in his aestimari, propterea quod qui saltum locavit, potuerit juste ignorare in co saltu malam herbam esse, eam non sit cujusvis noxias herba a bonis discernere. Qui autem vitiosa dolia locavit, potuerit vitium explorare et sine damno, aqua immissa. At ego de eo loquor, qui hoc ipsum explorans cognoscere primo non potuerit. Dicamus igitur hie quoque idem, quod modo in tundo evicto, quodque supra in vasis vitiosi venditione diximus, eum qui vasa vitiosa ignorans locavit, nihilominus teneri co nomine in id quod interest, quia dolium locans hoc ipso quod dolium dixit, pro integro locavit, seu vi ipsa integrum dixit; quia non est dolium, nisi vas, nee vas, nisi instrumentum ad capiendum humorem paratum. Quidquid autem in emptione aut locatione emptor locatorve dixerunt, id praestare cos oportet."
By the word "vat" the lessor implicitly refers to a receptacle without leakage. If it does turn out to be leaky, the lessor is liable: not on account of negligence, but because of his implied guarantee. Donellus — in accordance with D. 19, 2, 19, 1—restricted his argument to dolia; but there is no reason why one should not also be able to ascribe to the term "saltus pascuus" the meaning "grazing ground without poisonous weeds". The argument proposed by Donellus thus lent itself to generalization which was bound to occur sooner or later. It did occur later rather than sooner, namely in Bernhard Windscheid's textbook of pandectist law. If the leased thing is affected by a defect which diminishes its fitness for use, we read in § 400, the lessor is liable to the lessee for his interest, if he has fraudulently concealed such defect or if he has either expressly or tacitly guaranteed its absence. The main basis for this assertion is D. 19, 2, 19, 1. It is indicative of Windscheid's influence on the first draft of the BGB that his suggestion to regulate the lessor's liability for defects in the thing accordingly was immediately accepted.^11,4 This is all the more remarkable since a preliminary draft
^m> Commentarius ad Patidectas, Lib. XIX. Tit. II. XIV. ^Ifl1
Cf. supra, p. 335.
^!H2 Pothier {Traite dit central de towage, § 119), however, went even further. He argued that D. 19, 2, 19, 1 imposes liability not only on the manufacturer but also on the merchant, because his calling as such requires him to have knowledge of the goods in which he trades. This line of argument has been followed in the South African courts (Hunter v. Cumnor Investments 1952 fl) SA 735 (C) at 74UH-742A. For details of the impact of D. 19. 2, 19, 1 with its "curious" distinction {Alexander v. Armstrong (1H79) 9 Buch 233 at 237) on South African law. c(. Kerr, Sale and Lease, pp. 211 squ.; Clark. (1987) 5(1 THRHR 456 sqq.
^1H^ Commcmarii de Jure Civili. Lib. XIII, Cap. VII, XVI.
¹⁸⁴ For the reasons, see "Motive", in: Mtigdan, vol. II, pp. 209 sq. had made the lessor responsible only for fraudulent behaviour, and had not even accepted culpa liability.¹⁸⁵ Thus, the following rule was finally introduced into the BGB:
"If a defect of the kind specified in § 537 exists at the time of entering into the contract... the lessee may demand compensation due to non-fulfillment."
There is no longer any mention of fault. The liability is based on an implied guarantee. Today, there is a great deal of debate whether this is a happy solution to the problem.¹⁸⁶ Within the German law of contract, the rule of § 538 BGB represents something of an anomaly;¹⁸⁷ its excessive strictness has repeatedly been criticized.¹⁸⁸ On the other hand, however, attention has been drawn to the social policy perspective of § 538 I;¹⁸⁹ it increases the protection of the lessee and can thus be seen as one of the few "drops of social oil"¹⁹⁰ within the machinery of the BGB.
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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 range of the lessor's liability

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