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IV The Roman Law of Urban Leasehold LOCATIO CONDUCTIO REI AND URBAN LEASEHOLD The law of urban leasehold was for the most part estab­ lished in relation to two fundamental contractual actions, reciprocal in character: the actio locati and the actio conducti . The procedural formula for the actio locati was re­ constructed by Otto Lenel:1 Quod Aulus Agerius Numerio Negidio fundum (opus faciendum, operas) quo (quibus) de agitur locavit, qua de re agitur, quidquid ob earn rem Numerium Negidium AuIo Agerio dare facere oportet ex fide bona, eius iudex Numerium Negidium AuIo Agerio condemnato; si non paret, absolvito. With the substitution of one word (conduxit for locavit), the formula for the actio conducti was identical. The prae­ tor simply orders the iudex to decide the case and then if the plaintiff wins, to award the plaintiff the monetary value of what the defendant was obliged to do or give in accord­ ance with good faith under the contract of locatio conductio. Though the two formulas are mostly reconstruction,2 their 1 O. Lenel, EP 299-300. A standard account of the contract is in M. Kaser, RPR2 1 562-572; in English: W. W. Buckland, A Textbook of Roman Law3 (196ο) 498-506. In my opening section, legal sources are mainly cited without extended commentary or bibliography. 2 The Edict may not have listed all three forms of contract, cf. M. 56 Locatio Conductio Rei basic correctness is not in doubt. For urban leasehold, the actio locati belongs to the landlord (locator); the actio conducti, to the tenant (conductor). Since the procedural formulas are so brief, and since no legislation influences the development of urban leasehold, most of the law on the subject had to stem from juristic interpretation of the words dare facere ex fide bona. It would perhaps be fair to regard this interpretation as an attempt to objectify the originally uncircumscribed domain of bona fides; what had at first been left entirely to the socially formed consciousness of the index ("how do you think the defendant should have behaved?") became more and more a matter of positive law ("does the defendant's conduct correspond to this specific norm or standard of behavior?"). As we shall see, the development of the law on urban leasehold was sometimes a more or less straightforwardly cumulative process, but at times also marked by ideas tried out and then discarded. It is probable, furthermore, that the law as it is presented by Justinian's Digest is considerably simplified , especially as to the suppression of classical controversies .3 The contract locatio conductio is vast and heterogeneous.4 Common elements are few. Like all consensual contracts it requires only the agreement of both parties for its existence. It almost always involves the passage from one party to the other of a fixed sum of money (usually called the merces, see Gaius 3.142; sometimes the pretium), and beyond that it involves a legal relationship that the Romans embraced Kaser, lura 11 (i960) 234; H. Kaufmann, 353-359 (at pp. 345-349, he supposes, probably wrongly, that the amount of rent was also included ). The considerations in C. Alzon, Location des Entrepots (1966) 221-225, are unconvincing·, cf. C. A. Cannata, lura 18 (1967) 273-275 (review). 3 On postclassical developments, M. Kaser, RPR2 11 400-407. 4 Locatio conductio is unified only in the broadest sense; rights, duties, and liabilities are regularly distributed between the parties on the basis of economic sense, and not through doctrine. 57 Roman Law of Urban Leasehold with the verbs locare and conducere: the locator places his thing or a job or his services at the disposition of the conductor , and he either gives or receives the merces depending on the economic circumstances. While the broadness of this definition is not very helpful, the critical point is that all the numerous types of locatio conductio (lease of land and chattels, lease of dwellings and storage facilities, hire of services, hire of labor, carriage, and so on) shared many common and generalizable features in their formation, many recurring problems in their execution, and one single and simple action at law. Because of the polymorphous '.'unity" of this contract, the jurists could move easily from one type of locatio to another as it became necessary; but they could also zero-in on the particular problems of a single type of locatio. Urban leasehold is one form of locatio conduction It was singled out as requiring special legal treatment in the...


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