77. On Lease and Hire

1. Longinus, of infirm health, by order of the physicians, leased for a year the villa of Albanus, that there he might restore his health. But the Alban air was harmful to him, and after ten days he had to depart elsewhere. Hence, when the year had passed, he did not wish to pay the agreed rent, adding this also, that the lessor, unless he had leased it to him, would not have found another lessee, as already before he had not found one for several years.

Q. What as to the case?

R. Longinus is held to pay the rent. In L. Sed addes 19, Locati Conducti ff., it is said: "When a certain scribe had leased his services, and then he who had hired them had died, the Emperor Antoninus with the Divine Severus wrote back to the petition of the scribe in these words: Since you propose that it did not stand through you that you did not furnish the leased services to Antonius Aquila, if in the same year you did not receive wages from another, it is equitable that the good faith of the contract be fulfilled." And ib. L. Qui operas 38: "He who leased his services ought to receive the wage of the whole time, if it did not stand through him that he did not furnish the services. Advocates also, if it did not stand through them that they did not conduct the case, ought not to return their fees." Hence Lugo aptly, d. 29. n. 29: "When a leased thing is rendered useless for the use of the lessee, the general rule is that, when by accidental case it perishes or is removed from the power of the lessee, without fault of himself or of the lessor, because neither could prevent it, the lessor is held to nothing except to remit the rent pro rata for the time in which the use of the thing was impeded. This is understood when the impediment holds itself on the part of the leased thing itself. For if it held itself on the part of the lessee himself, who on account of sickness, for example, or another impediment of his own was not able to use the leased thing, he is not for that reason excused from paying the rent; as if he hired a workman for laboring, and afterward, an impediment coming upon himself, he could not send the workmen on that day to cultivate the vineyard." I. M. 1204, 1206, 1208.

2. Pompeius had hired a carriage, that he himself and his whole family might travel from Rome to Naples. But in the middle of the way, one of the horses, frightened by the shadow of a tree, having made a leap, rushed against the side wall of the road, broke its head, and died; and the carriage was broken apart; and only by the miracle of the Blessed Virgin Mary, invoked by all, did all remain unharmed. Wherefore Pompeius had to hire another carriage to continue the journey with his family, at a far dearer price. Hence he wished to pay nothing to the unfortunate driver. But the driver of the broken carriage claimed the price of the whole journey.

Q. What as to the case?

R. The matter in the case concerns the hire of services. For conveyances are a kind of services. But services are the daily office and ministry, L. 1 de Oper. Libert., L. ult. de Proxen., for example of a procurator, administrator, steward, broker, etc. Certainly both a thing and a person, namely his work, can be leased. - Moreover, if the lessor, namely the one who furnishes the service, by some accidental case could not furnish his service, if that case happened on the part of the lessee, namely of him to whom the service is furnished, because for example he died, the lessor can demand his wage, because it is the same as if the lessee could not use the leased thing because of a cause proper to himself. And the whole wage of the whole time and service is to be paid, unless in the meantime the lessor had leased himself to another. Lugo d. 29. n. 55. But if that case happens on the part of the lessor, because, for example, he became sick, or because he was forced to migrate elsewhere on account of enmities, and could not furnish the whole daily office, the wage is owed only pro rata for the service furnished, provided that the service furnished in part brought utility to the lessee. But if there was an impediment from the side of neither, but by public authority the furnishing of services, for example, navigation to be undertaken by agreement, was impeded, if indeed that impediment intervened immediately from the beginning before the navigation had begun, neither remains bound to the other from such a contract, except to this, that they bear together the expenses already made. Hence also, a ship being lost by shipwreck before the agreed navigation, if the lessee paid the wage beforehand, he can reclaim it. L. Ex conducto 15. § 6. ff. Nor indeed afterward, when such an impediment has ceased, is the lessor held to the service, unless a new agreement has been interposed, because an agreement once dissolved can be renewed only by the will of two. But if the service has already been begun, the wage is owed pro rata for the part of the service, if, namely, it is useful to the lessee. Voet l. 18. tit. 2. n. 27. - Hence, since the route traveled is certainly useful to Pompeius, although he can find another carriage only at a dearer price, and since besides it did not happen by the act of the driver himself that he could not complete the agreed carriage service, Pompeius seems to be held to pay the wage for the proportional part of the carriage service; abstraction being made from any other special law and custom of places, so that, namely, the whole wage would be paid. - I. M. 1204-1206, 1208, 1209.

3. Ascanius often undertakes a journey on the railway. He himself receives a ticket, the price of the third class having been paid. Then, after the inspection of tickets has been made, he often passes over to the seats of the second class, not rarely even of the first class. He also has a counterfeit card of an Architect of the railways; and thus also sometimes he undertakes a journey altogether gratuitously. For he says: no damage is done to the Company, because there are always empty seats in the first and second class.

Q. What as to the case?

R. Ascanius acts altogether illicitly and unjustly, and therefore is held to restitution. For here the matter is not properly of damage, but of an onerous contract of hire of seats and of the service to be furnished which is necessary for the journey. Wherefore, as in any other contract, he acts illicitly and unjustly who does not pay the price owed and is held to restitution, so also in the present case.

The same must be said of those who use the same tickets, washed by chemical preparation or restored to their pristine state by another means, to send letters or goods elsewhere. - Nor is what is said about damage altogether true; for if this were lawful and all did it, an immense damage would thence arise. Wherefore, if damage is absent in the case, it is by accident. But neither is damage altogether absent: for in all those cases there is always the loss of some greater or lesser profit. And if this certainly is not lawful among private persons, neither is it lawful between private persons and a moral body, the Railway Company, or the Government. For commutative justice is always the same, whatever the persons may be of whom there is question. - I. M. 1203, 1206, 1208.

4. Rodulphus obligated himself, at one price of 500,000 lire, to construct a house for Fabritius. The price was to be handed over only when the work was completed and delivered. But when the work was already verging toward the end, Rodulphus claims from Fabritius 600,000 lire because, he says, after the agreement was entered into, the wages of the workmen were increased, and likewise the prices of materials increased. But when the work was now completed, before it was approved by Rodulphus, the house is burned by accidental fire.

Q. What as to the case?

R. The matter in the case concerns the hire of a work. Although the hire of service and the hire of a work are often confused, C. I. 1627; C. G. 1779, nevertheless they are properly distinguished. For service is the office, duty, ministry proper to a person; but a work is whatever, the work of an artisan intervening, is made, or whatever someone undertakes to have made, for example to build a house, to paint a panel, to repair a garment. Wherefore two things are to be considered in a work, material and workmanship. In this hire of a work, the contractor receives the wage, the lessor gives it; whereas in the hire of things and of service, the lessee furnishes the wage, the lessor receives it; although this also is true, that the contractor of a work can at the same time be called the lessor of service, insofar as the artisan who undertook something to be made leases out his work, that is, the necessity of doing. Voet l. 19. tit. 2. n. 33.

Now, the contractor must complete the work, namely whole, within the constituted time, and at the established price, which just as it is not diminished if the prices of material and workmanship decrease, so also is not increased if the prices of things and services increase. C. I. 1640; C. G. 1793. Wherefore Rodulphus can claim nothing more beyond the price concerning which the agreement was already made.

Besides, that must be noted, that a work can be hired either at one price, or at a price constituted for each measure. C. I. 1638; C. G. 1791. In the first case the work is not understood to have been delivered until it has been approved; but in the other until it has been measured. Wherefore, if the work perishes before that time, if the contractor furnished the material and the workmanship, the whole perishes for him, because a thing perishes for its owner; otherwise the material perishes for the lessor, the workmanship for the contractor, if namely the delay of neither intervened. C. I. 1634-1637; C. G. 1788-1790. Delay intervening, since each one's own delay harms him, in the former case, the whole damage will be either of the contractor or of the lessor, if either the former made delay in handing over, or the latter in accepting; in the latter case, if the contractor made delay, he must pay to the lessor the price of the material; but if the lessor was in delay, he must pay to the contractor the price of the workmanship. C. I. 1635, 1637; C. G. 1788, 1790. Now since the building of the house, in the case, was hired at one price, and the whole perished by accidental case before it had been handed over to Fabritius, Rodulphus must sustain its destruction.

But what if, when the work was already begun, Fabritius had wished to desist from the building of the house? He certainly could have done this, yet with the expenses refunded to Rodulphus, and besides as much as it is to his interest, whether this is damage or profit. The reason is that he who is obligated to some deed is liberated by furnishing that which is of interest. C. I. 1641; C. G. 1794.

What likewise, if meanwhile, while the work is being completed, Rodulphus dies? The hire is then dissolved; but if the begun work and the things which he had prepared on account of it are useful to Fabritius, the latter must pay their price. - I. M. 1205, 1206.

5. "In the Encyclical Rerum Novarum it is said: - Let it be, therefore, that the worker and the master freely consent to the same agreement, and namely to the manner of the wage; nevertheless there is always something from natural justice underlying it, and this greater and older than the free will of the parties making the pact, namely that the wage ought not be unequal to supporting a worker who is frugal indeed and well behaved.

Doubt I. By the words natural justice, is commutative justice understood, or rather natural equity?

To Doubt I. Speaking per se, commutative justice is understood.

Explanation. - Indeed, the work of the worker differs very much from merchandise, just as wage differs from price. For the work of the worker is a work proceeding from human freedom, therefore clothing itself with the ratio of merit and of right to a wage or reward. And therefore it is far nobler than merchandise and price, which are resolved by exchange alone. Nevertheless, for the sake of clarity, the work of the worker is considered as a certain merchandise, and reward or wage as a certain price.

Nor undeservedly; for although the work of the worker is something nobler than merchandise, nevertheless it retains the whole ratio of merchandise from that part by which this expresses order to price. Therefore the reasoning of St. Thomas, 1.2. q. 114. a. 1, is most right: "For that is called a wage which is recompensed to someone for the recompense of work or labor, as a certain price of it. Whence, just as to render a just price for a thing received from someone is an act of justice, so also to recompense the wage of work or labor is an act of justice." An act, I say, of commutative justice. For just as buying and selling, so work and wage are for the common utility of the contracting parties, namely while one needs the thing or service of the other, and conversely. But what is for common utility ought not to be more a burden to one than to the other, and therefore the contract of justice between master and worker ought to be established according to the equality of the thing, which is the property of commutative justice. Cf. 2.2. q. 57. a. 1.

But if the criterion is sought by which that equality of the thing must be established between the manual work of the worker and the wage to be given by the master, we respond: That criterion in the Encyclical is said to be sought from the immediate end of the worker, which imposes on him the natural office or necessity of working, namely from food and clothing for sustaining life fittingly, and to which manual labor is first and principally ordered. 2.2. q. 187. a. 3. Therefore as often as the work is such that through it the worker satisfies his aforesaid natural office of attaining the immediate end of his labor, and the wage is unequal to attaining this end, namely fitting food and clothing, speaking per se and with the nature of things considered, there is an objective inequality between work and wage, and therefore an injury of commutative justice.

Nevertheless, two things generally must be considered in this matter. One is that, just as the price of saleable things is not punctually determined by the law of nature, but rather consists in a certain common estimation, so also it must generally be said concerning wage. Whence, the exigency from the ratio of the end remaining firm, namely of fitting food and clothing, a modest addition or diminution is made, or at least can be made, to the wage of the worker from common estimation, with justice preserved, just as in the price of merchandise a modest addition or diminution, from public estimation, does not seem to remove the equality of justice. 2.2. q. 77. a. 1. ad 1. The other is that in assigning the equality of justice between wage and manual work, attention is paid by common estimation not only to both the quality and the quantity of the work, but also to the time of its duration, likewise to the prices of things which must be bought by the worker for fitting food and clothing; which prices are not the same everywhere.

But if finally, without justice being injured toward the worker, according to what has been said, the master is much helped by his work, he can indeed, of his own accord and laudably, supererogate something to the worker, but this pertains to his honesty, without his being held from justice. Namely, in our matter the principles are valid which are given for just buying and selling. 2.2. q. 77. a. 1. in c. a.

Doubt II. Will a master sin who indeed pays a wage sufficient for the support of the worker, but unequal to feeding his family, whether this consists of a wife and numerous offspring, or whether it is not so numerous? If affirmatively, against what virtue?

To Doubt II. He will not sin against justice; nevertheless, he will sometimes be able to sin either against charity or against natural honesty.

Explanation. - From this very thing, that according to the things declared in the response to the first doubt, equality of wage and work is observed, the exigencies of commutative justice are fully satisfied. But the work is the personal work of the worker, and not of his family, nor is it referred to the family itself first and per se, but secondarily and by accident, insofar as the worker distributes the wage received with his own. Therefore just as the family, in the case, does not increase the work, so from justice it does not require that the wage owed to the work itself be increased.

Nevertheless he will be able to sin against charity, but not generally and per se, but by accident and in some cases. Whence in the response it was said: sometimes.

Against charity, not only in all those modes by which a man can sin concerning charity toward his neighbor, but also in a peculiar mode. For the work of the worker yields to the emolument of the master. Therefore as often as this master is driven in individual cases by the precept of charity to exercise the offices of charity, he is held also to observe the order of charity. This order indeed makes workers, exercising daily work for his utility, nearer to the master than the poor, or others, doing nothing for him. Wherefore a master able to exercise offices of charity ought to prefer his own workers, by bestowing on them from charity what justice by no means requires, so that the wage thus increased from charity may become less insufficient also for sustaining the family of the worker. But these things must be held generically and as if theoretically; for in practice one must not rashly judge whether a master sins or does not sin against charity.

Against honesty, whose proper thing is to repay, namely spontaneously and not from justice. We do not wish here to understand honesty as inducing gratitude from a benefit received: for the work of the worker is not a benefit, because it is compensated by a wage according to the equality of the thing; but because the master receives from the work of the worker a great benefit and emolument, and therefore from a certain natural honesty he is in some way held to recompense by supererogation, as in the response to the 1st, § But if finally, with nevertheless no right existing in the worker to that supererogation, as is plain.

Doubt III. Whether and by what reason do masters sin who, using no force or fraud, give less salary than the work furnished deserves and than suffices for honest support, because many workers offer themselves who are content with that small stipend, or freely consent to it?

To Doubt III. Speaking per se, they sin against commutative justice.

Explanation. - It has been said that, although the work of the worker is not properly merchandise, nevertheless, for the sake of clarity, it can be compared to merchandise, because in order to equality of wage it has the whole of what merchandise has in relation to price, and something further also. Whence the argument is rightly instituted from the lesser to the greater. But in buying it is not lawful, speaking per se, to buy a thing for less than it is worth from common estimation, with regard had to the condition of times and places. Therefore a fortiori it is not lawful, but is against justice, to give less salary than the work furnished deserves, that is, than suffices for honest support. On this doubt let the Encyclical be seen, p. 33 and 38.

I said speaking per se: by accident particular cases can be given in which masters can lawfully hire workers content with an inadequate wage. Suppose if the master would draw either no benefit, or a benefit altogether insufficient for suitably sustaining his own life, if he gave an adequate wage; indeed, even if he would suffer damage from it. For in this case and in similar ones, although at first sight the question is of justice, nevertheless in reality it is more a question of charity, by which the master provides both for himself and for others. Cf. Explanation to Doubt I, § Duo tamen." S. O. apud Monitore Ecclesiastico, Conversano, v. 7. p. 2. p. 155, 156.

6. "Workers of a certain city, associated in workshops, for example tailors or shoemakers, enter into a pact among themselves that none of their number will furnish labor unless, instead of 30 asses, in the future 2 francs are given to them. But the masters, or mandators, in turn, to break the contumacy of the workers, by mutual consent establish on the contrary that the salary of the workers must be diminished.

Q. Are the associated workers and their masters to be condemned for unjust monopoly?

R. The workers acted unjustly if they compelled the masters to pay them above the highest price for labor which these would have obtained at a lower price. But the masters in this hypothesis did not act unjustly, since they did this only to restrain the workers justly. But if the workers desist from the depraved counsel, the masters also ought to desist. But if the workers agreed concerning the highest price indeed, but a just one, to be required from the masters, it is disputed." G. 960, 961. Namely, the masters also per se acted unjustly in the first hypothesis, if they established that the salary should be diminished below the lowest price. But in the other hypothesis it is disputed as regards the workers, insofar as this question is disputed among the Doctors concerning merchants entering into a pact among themselves about selling goods at the highest price. But in such a pact there is in reality no injustice, because the highest price stands within the bounds of the just price. And if the price is just, a pact concerning selling goods at a just price cannot be unjust. Yet a pact of this sort is against charity, for it brings a notable burden on the masters. L. 817; I. M. 1166.

7. A large house was to be constructed for the whole family of a most noble prince. All the workers, that they might obtain not only a just wage, nor only the highest price, but that they might be able to require a wage even far higher, having entered into a pact among themselves, declare to the prince that they will by no means furnish their work unless a partnership is made between them and him, namely that he put up the money for constructing the house, but they expend all the work necessary up to the completion of the building, which, being appraised, would yield in half part to them, in half part to the prince. Moreover, the value of the house, when it will be completed, is foreseen to be 3,600,000 lire; and in constructing it the masons to be employed, and the carpenters, are numbered at one hundred, and the whole construction will last thirty months, or two and a half years. Hence, calculation having been made, the individual workers absolutely require twenty lire daily, whatever may then happen, so that, in any hypothesis, they neither afterward require more, nor be compelled to restore anything.

Q. What as to the case?

R. That the workers wish to enter into partnership with the master, the master accepting the condition of partnership, is certainly nothing illicit and unjust in this matter. Nevertheless, that must be noted, that the master is held by no right to accept the contract of partnership imposed by the workers. Wherefore, if he accepts it, it is from his merely free and good will of doing a thing pleasing to the workers. But that in the aforesaid partnership the condition be constituted that the master contribute money, but the workers contribute work, so that the whole completed work yield, as to the whole value of 3,600,000 lire, half part to the master and half part to the workers, which meanwhile is paid to them daily during the construction of the house, certainly is not consonant with justice. For if the matter is well considered in the partnership thus instituted, the whole profit yields to the workers. The profit at most would have to be divided equally between the workers and the master.

For truly in this partnership the master contributes capital of 1,800,000 lire, which is half of the whole sum, 3,600,000 lire, which capital must be paid day by day to the workers; but the workers contribute work to that partnership. Therefore the profit to be divided between the two partners, namely the prince and the one hundred workers, is not the total sum of capital and profit, 3,600,000 lire, but is only the other half part, namely the profit of 1,800,000 lire, since, the partnership being dissolved, the capital must be restored to the master and the profit divided. Wherefore the workers could not require daily 20 lire, as an anticipated and partial payment of the future profit, pro rata as it pertains to them, but only 10 lire. But while the prince absolutely contributes daily 20 lire for each worker, the worker daily contributes only his work, which certainly is not worth so much; whence equality in this contract of partnership is not yet preserved also from this head. Moreover, while the workers daily receive absolutely 20 lire as an anticipated part of profit, this profit is already daily absolutely secured to the workers; while on the contrary the prince daily undergoes, during the construction and after the house is already constructed, the danger of losing capital and profit, if by wind, if by lightning, if by fire, or another cause, the whole house already completed, or while it is being completed, is destroyed, or even if the labors must at least be delayed, if unforeseen difficulties occur, if finally the price of the constructed house decreases. Wherefore, by reason of this danger of capital and profit daily sustained by the prince, the workers also ought to concur in sustaining it, namely by remitting to the prince half a lira, if they are content with only ten lire. But there is another burden to be undergone by the prince, the continually ceasing profit of his capital, which according to the usual interest is daily at least half a lira for each worker, if again they are content daily with only ten lire. Wherefore they could receive only nine lire. But for constructing and completing a building of this sort, one hundred masons and carpenters certainly do not suffice, but there is need also of other workers, ironworkers; there is need of painters; there is need of architects; there is need of other skilled directors as to the individual things which everywhere occur in constructing and completing a house. Therefore the prince must sustain these other immense expenses, which, if they are compensated by the workers by at least another lira, now they can receive only eight lire. But again, for constructing the building money and persons do not suffice; material is required, stones, wood, iron, and other things of this sort. Since the workers contribute only work, the prince must sustain the whole expenses of material, which certainly must be compensated by the workers, and which, since the price of the material either exceeds or certainly at least equals the workmanship in the case, cannot justly be compensated by less than three or four lire. Wherefore from this head also they cannot receive except four or five lire daily. But there are also instruments of art to be bought, and instruments also to be repaired and restored; unless the workers themselves wish at least to sustain these expenses themselves, they also must compensate them to the prince. And thus finally it appears that, with the partnership entered into, not only would they themselves not receive more than by simple hire of work, but less. Finally, this also must be noted, that since not all the workers expend in constructing the house work equally necessary and useful and of the same estimation and price, neither is justice preserved in that equal distribution of profit among the workers themselves. - I. M. 1221, 1223.

8. Isidorus, a share-tenant, since he himself alone cannot cultivate a large farm, leased half part of it to his brother; the other half part he cultivates himself, but uses the work of servants, to whom he pays a daily stipend, which he compensates to himself from the part of the fruits which he owes to the owner, on the ground that, he says, no special agreement was made concerning the quantity of fruits owed to the owner. But whenever by drought or hail, or by another similar calamity, the fruits of the field perish and are diminished, he keeps for himself the remaining part for his continuous labor and industry.

Q. What as to the case?

R. If in the lease of rural estates a certain and determined part of the fruits is constituted for the lessee, for example five or ten modii of grain, there is had a hire of service. But if that certain and determined part of the fruits is constituted for the lessor, then there is had a simple lease, which nevertheless is also governed by special laws. C. I. 1614 seqq. But if rural estates are leased by that agreement, that the fruits be divided between the owner and the tenant, then there is had a colony or sharecropping colony. L. 25. § 6. Locati; C. I. 1647. - Common to the colony are the laws generally constituted for the lease of things, and in particular for rural estates; but it is governed also by pacts agreed upon, and by more special laws and local customs. C. I. 1647, 1654. Hence, among other things, the tenant is prohibited from ceding his right to another or subleasing the estates; otherwise the owner has the right of returning into possession of the leased thing, and the tenant has the obligation of repairing damages. C. I. 1649; C. G. 1763. Wherefore Isidorus did not act rightly by leasing half part of the estates to his brother; he is held to rescind that lease and to repair damages, if any followed. If the owner did not make that faculty of subleasing in the contract of lease, he is certainly gravely unwilling, and Isidorus violates the agreement in a grave matter.

Moreover, Isidorus cannot compensate himself as to the expenses made in hiring the work of servants, from the fruits owed to the owner. For in this colonial lease the owner furnishes the farm and almost all the material; the tenant must furnish the works. Wherefore the tenant is held to cultivate the farm, and consequently is also held to all those things which are necessary for the cultivation of the farm; and therefore he must furnish the instruments necessary for the cultivation of the farm, and the animals necessary for fields either to be cultivated or to be manured, and the straw necessary for feeding them in winter. But the owner and tenant furnish the seed in common. The tenant must make ordinary plantings, prune, cut, and carry out trees. But from coppice woods the tenant receives nothing, excepting those things which are necessary for the use of the farm and for his own use. Ordinary expenses to be made for the ordinary cultivation of the fields and the collection of fruits also fall upon the tenant. To him besides pertain ordinary cartings for repair of the farm and of the colonial house, and for carrying produce into the house of the lessor. He must likewise protect fences, keep hedges, clean ditches even alongside the public road; and if anything has been ordered by the municipalities for strengthening roads, he himself must furnish his work. C. I. 1655-1661. Therefore Isidorus can compensate himself nothing as to these works, altogether owed, from the fruits owed to the owner. Indeed more, he can neither sell the straw and manure prepared for the sake of the farm, nor can he furnish cartings to others. C. I. 1650.

But that no agreement was made concerning the fruits owed does not excuse Isidorus. For, another agreement failing, by the law itself all fruits are to be divided equally between owner and tenant. C. I. 1661. Isidorus likewise acts unjustly by throwing back upon the owner all damage from drought and another similar case. Damage of this sort is common. "Superior force ... ought not to be damaging to the lessee, if, more than is tolerable, the fruits have been harmed; otherwise the tenant ought to bear moderate damage with an equal mind, he from whom immoderate profit is not taken away. But it appears that we say this concerning that tenant who leased for counted money; otherwise the share-tenant, as if by the right of partnership, shares both damage and profit with the owner of the farm." L. Si merces 25. § 6. Locati ff. The same is the disposition of C. I. 1648. - I. M. 1203, 1211-1213.

9. Basilius leases one hundred sheep to Nicostratus, no determined time being set, so that both may draw profit from them, Nicostratus contributing work, namely custody and food, and care for capturing profit from them. Meanwhile several sheep die from illness; many others, lest they die, are sold by Nicostratus. Wherefore, after three years, Basilius dissolves the lease, and demands from Nicostratus one hundred sheep, with part of the profit, namely half. But Nicostratus refuses to give anything, but consents to give only half part of the sheep which remain.

Q. What as to the case?

R. The lease of animals, or rather partnership, can be entered into in two ways, either for the sake of cultivating some field, or for the sake of capturing profit from them, as in the case. C. I. 1665, 1666; C. G. 1800, 1801. A partnership of this sort is governed by particular agreements; these failing, by the custom of places; and this failing, it is governed by laws. C. I. 1665, 1668; C. G. 1800, 1803. - Moreover, from the cited Codes, Italian and French, the animals must be appraised at the beginning of the partnership itself; but when appraised, they pass into the right of the other partner, but they do not pass into his ownership, nor regularly do they pass into his risk. C. I. 1670, 1686, 1688, 1695; C. G. 1805, 1820, 1822, 1830. - Therefore neither he who furnishes the herd, or lessor, nor he who receives it, or lessee, can dispose of the animals, whether they pertain to the very capital of the partnership, or pertain to its increase, the other being unwilling. C. I. 1678,

1686, 1895; C. G. 1812, 1820, 1830. But those things which perish by chance perish for the owner alone, namely the lessor, from C. I. 1672, 1673, 1675; Lig. 909. But from C. G. 1807, 1808, 1810, if the whole flock perishes without fault of the lessee, it perishes for the lessor; but if only a part, the damage is common to both. The partnership ended, they are appraised again, and as many animals are owed to the lessor as equal the price of the animals contributed at the beginning of the partnership. C. I. 1683, 1686, 1692, 1695; C. G. 1817, 1820, 1830. But those animals must be deducted which perished for the lessor alone; and if those which survive are not enough, the damage will be his. C. I. 1683. But from C. G. 1817, account of the damage must be had by the two parties, according to that which was just now noted concerning such damage.

Hence it is plain that Nicostratus acted illicitly and unjustly by selling several sheep. He ought not to have done this without the consent of Basilius. But as to the dead sheep, if this happened by accidental case without his fault, the whole damage, in the case, belongs to Basilius. But if his fault intervened, Nicostratus is held concerning the damage. The lessee is held to employ the diligence of a good father of a family. C. I. 1671, 1672; C. G. 1806, 1807; Lig. 909.

As to profit, the partnership of animals for the sake of making profit from them is of one kind simple, of another from equal portions. This latter is that by which each contracting party furnishes the herd from half part, and one of them furnishes work besides. But the former is that by which one contributes the herd, the other the work; and such is the partnership of Basilius and Nicostratus in the case. C. I. 1669, 1684; C. G. 1804, 1818. - Moreover, in each of these partnerships, simple and from equal portions, it cannot be agreed: 1. That the lessee furnish the accidental risk of the capital, that is, of the whole capital from C. G. 1811; beyond half from C. I. 1677; indeed not even below half, unless due compensation is furnished to the lessee, or assurance intervenes. Lig. 909; I. M. 1225, 1226. - 2. That the lessee participate more in the damage than in the profit. C. I. 1677; C. G. 1811; Lig. 909; I. M. 1225, 1226. - 3. That, the partnership having ended, the lessor perceive something for himself besides the animals contributed. C. I. 1677; C. G. 1811; Lig. l. c.; I. M. l. c. - Any similar agreement is void. C. I., C. G. aa. cc. - If no special agreement was made, milk, manure, and whatever work the animals furnish, belong to the lessee; but the hair and whatever accrues to the animals, as offspring and increase of price, are common to the lessor and lessee. C. I. 1668, 1669, 1676, 1686; C. G. 1803, 1804, 1811, 1820. Each partnership ends in three years; and when this has been completed, if, without fault of the lessee, less survives than the lessor contributed, the loss will be the lessor's; but if more, the profit will be common to each pro rata. C. I. 1681, 1683, 1686; C. G. 1815, 1817, 1820.

Therefore Nicostratus, if there was profit, cannot deny half part of it to Basilius, and as many heads must be separated for him as equal the price of the things contributed. But if the animals do not suffice, Nicostratus is held to supply the price from the sheep which he sold without any right, and from the milk, manure, and labor of the animals received by him, and likewise from other profit received, or even from other proper goods, up to a just compensation of the damage inflicted. Nor in any way can he keep for himself half part of the animals, since the partnership was simple, not from equal parts. - I. M. 1203.

10. Ludovicus hands over very many sheep, oxen, cows, and horses to his tenant under the following conditions, namely that he himself have the greater part of the milk and wool, and likewise the greater part of the profit, but that the tenant use the animals handed over for the cultivation of the farm.

Q. 1. Of how many kinds is the partnership of animals for the sake of cultivating some field? - 2. What concerning the agreement in the case?

R. To the 1st. The partnership of animals which is contracted for the sake of cultivating some field is contracted either with a simple lessee of a field or with a share-tenant.

That which is entered into with a lessee has this proper to itself, that it does not transfer ownership of the animals to the lessee, but does transfer risk. Wherefore the lessee is held even for the accidental case of the whole flock, unless something else has been agreed. But on the contrary, unless a contrary pact is present, every profit belongs to the lessee, except manure, which must serve the leased fields. But when the partnership has ended, the lessor receives all animals of the same value which he had contributed; if anything is lacking, the lessee must supply it; but if anything remains over, it belongs to the lessee. C. I. 1687-1692; C. G. 1821-1826.

But the partnership which is contracted with a share-tenant is governed by the same laws as the simple partnership, concerning which in the preceding case. Nevertheless it can be agreed that the lessor perceive half part of the milk; that the tenant sell to the lessor part of his wool for less; that he perceive the greater part of the profit. C. I. 1693-1695; C. G. 1827-1830.

To the 2nd. The partnership of Ludovicus with the tenant is a partnership with a share-tenant, not with a simple tenant or lessee. Moreover, Ludovicus can indeed, by the very disposition of the law, receive the greater part of the profit from the animals handed over for the cultivation of the farm; but he can still receive the greater part of the wool, due compensation nevertheless being made, since by law it can be agreed that the tenant sell to him part of his wool for less. Likewise he can receive the greater part of the milk, if sufficient compensation is likewise made, so that justice is preserved.

11. Geraldus hands over one hundred sheep to Tiburtius, an appraisal of them having been made, and with that agreement that, the partnership being ended, one hundred sheep of the same value be restored to him; and, during the partnership, Tiburtius pay one lira yearly for each sheep; but the remaining profit, whether greater or less, will belong to Tiburtius himself.

Q. What as to the case?

R. Nothing unjust seems to be present in the preceding contract; for in reality it is a triple contract or contract of partnership, in which there is assurance of the capital and assurance of profit. Nor indeed does one lira to be paid yearly for each sheep seem excessive, since Tiburtius receives milk, wool, manure, and every increase. Wherefore compensation made to him for the burden imposed seems sufficient. I. M. 1226, 1239, 1240; Less. l. 2. c. 25. d. 3.