Société Internationale Fernand de Visscher pour l’Histoire des Droits de l’Antiquité (SIHDA)

Du Plessis, P. (Speaker)

Activity: Participating in or organising an event typesParticipation in conference

Description

'Locatio conductio and virtual reality, II': The consensual contract of letting and hiring (locatio conductio) in Roman private law arose during the third century B.C. from unknown origins. As one of the most practical of the consensual contracts, it fulfilled an important purpose in Roman commerce and was widely used throughout Roman legal history. Modern knowledge of this contract is primarily based on its treatment in the Corpus Iuris Civilis, which in the case of letting and hiring consists of a collection of fragments from juristic literature of the classical period (collected in D.19.2) complimented by a selection of Imperial legislation (in CJ.4.65) from 230 A.D. – 530 A.D. These legal rules essentially present a snapshot of the (developed) state of the contract in the sixth century A.D. and scholars have to look to other (non-legal) sources for the earlier history of this contract. Since Justinian’s primary motive with his “codification” was to resurrect the glory of classical Roman law, it is not surprising that the law on letting and hiring in the Corpus Iuris Civilis presents a distorted view of reality. Recent studies on urban and agricultural tenancy (Frier 1980; Kehoe 1997) have, for example, shown that the majority of the fragments in D.19.2 are concerned with agricultural tenancy, which was one of the few acceptable commercial pastimes of patrician landlords in the late-republican and early classical period. Other forms of commercial lease, such as letting and hiring of warehouses and maritime transport must undoubtedly have been equally profitable, yet these are rarely mentioned. Furthermore, in the case of urban leasehold, most legal rules assume that a tenant had sufficient financial reserves to defend his interests in a court of law. This would have excluded the vast majority of impoverished tenants from the protection afforded by the Roman law of letting and hiring. It may therefore be safely assumed that the Roman law of letting and hiring presented in the Corpus Iuris Civilis was largely doctrinal and aimed at a specific target audience. Fortunately, owing to the practicality of letting and hiring, a number of negotia (contracts of lease, receipts for rent paid, eviction notices etc.) have been preserved from various periods in Roman legal history in which the practical application of the legal rules on letting and hiring are demonstrated. These documents suggest that the reality of letting and hiring differed from the doctrinal rules discussed in abstracto by the Roman jurists. The purpose of this paper is to examine selected negotia from the three species of letting and hiring (thing; services; work) to demonstrate the practical application of the Roman law of letting and hiring and its relationship to the normative rules of Roman law. The scope of the discussion will be limited to “Italic” leases and will not include the interaction between Roman law and customary law in, for example, Roman Egypt. The sui generis nature of Greco-Egyptian law and the legal pluralism prevailing during the Roman occupation of Egypt necessitates this exclusion.
PeriodSep 2005
Event typeConference
LocationBochum, Germany

Keywords

  • locatio conductio
  • letting and hiring
  • lease
  • Roman law