Towards security of tenure

Naturally, the eventual abolition of emptio tollit locatum did not occur in isolation; even more basic is the tenant's protection against expulsion by his lessor. Over the centuries various ways were found to achieve at least some sort of protection.

³⁵⁵ Paulus Voet. Institutionum imperialium commentarius (Ultrajccti. 1668). Lib. Ill. Tit. XXV. § 6. n. 4.

³⁵⁷ Cf. e.g. Voet. Commentarius ad Pandectas, Lib. XIX. Tit. II. 17; Ulrich Huber. Praelectiones, Lib. Ill, Tit. XXV, 11 ("... per venditionem (!) a locatore factam solvitur conductio"); Van Leeuwen, Censura Forensis, Pars I, Lib. IV, Cap. XXII, 19.

²⁸ §§ 3, 358 I 21 PrALR; art. 1743 code civil; §§ 1095, 1120 ABGB. For all details, see Genius, op. cit., note 115, pp. 193 sqq., 198 sqq., 204 sqq.

²⁹ De Wet. (19441 8 THRHR 226 sqq.; De Wet en Yeats, pp. 330 sqq.; Kerr. Sale and Lease, pp. 277 sqq.

³⁰ Cane v. Wynberg Municipality (1893) 10 SC 118 at 120 (per De Villiers CJ). For Germany cf. RGZ 59, 326 (328): "Mil der Übergabe der Mietsache entwa'chst das Recht des Mieters dew reinen Obligationenrechte. Es bestehen nicht mehr bloss zwischen den obligatorisch Verbundenen Rechte und Pjiichten, sondern jedermann hat das durch den Besitz erkennbare Mietrecht zu achten" (With the handing over of the leased object the lessee's right outgrows the pure law of obligation;.. There are no longer only rights and duties between the parties to the obligational relationship; everybody has to respect the lessee's right which is identifiable by virtue of h’s possession); Emmerich/Sonnenschein, op.

²⁷¹ Cf. supra, p. 359.

Canonici)^[1919] was used to assist the tenant, even though he was only a detentor.^[1920] The whole topic of possession gave rise to one of the most complex and heated debates in 19th-century pandectist literature, but it was only the legislator who finally abolished the distinction between possessio and detentio. Since then, it has been beyond dispute that a tenant is possessor. The institution of notice, on the other hand, which was of Germanic origin and prevented the lessor from expelling his tenant without further ado, came to be received into the ius commune in the course of the later usus modernus pandectarum^[1921] and was firmly entrenched by the end of the 19th century. By that time, too, a clear distinction was drawn between contracts of lease for a specific period and those for an indefinite time.^[1922] In the latter instance, both parties were at liberty to give notice at any time, but had to observe customary periods of notice which varied from place to place.^[1923] If a specific time had been agreed upon, the contract normally came to an end with the lapse of that time. Under certain circumstances, however, both the lessor and the lessee had the right to terminate the contract prematurely. It was in this context that the Roman grounds for justified expulsion (mainly C. 4, 65, 3) and for justified abandonment^[1924] became relevant again.^[1925]

In the course of the present century, notice protection on the part of the tenant has been considerably increased. Today, according to the BGB, the lessor may terminate the lease of residential accommodation only if he can show a reasonable interest in such termination.^[1926] But even in the light of the legitimate interests of the lessor, the tenant can demand a continuation of the lease if hardship would otherwise ensue for himself or for his family.^[1927] Security of tenure reigns supreme.^[1928]