XIV. On Hiring and Leasing

What is hiring and leasing? - It is a contract by which someone obliges himself to grant a thing to another for use or usufruct for a certain time and for a price, and the other obliges himself to accept it. C. A. 1090, 1091; C. L. 1595. - He obliges himself, for it is a consensual contract, L. 1, Dig. Locati conducti; C. I. 1569, 1570; C. G. 1709, 1710; C. A. 1094. Cf. C. L. 1619 ff. A thing, that is, one not fungible by use, whether a thing properly so called, or a person; wherefore an immovable thing can be leased, as an estate; a movable thing, as a flock; a person, as a worker or servant as to the services to be furnished, e.g., service, the transporting of things and persons, etc., or as to a work to be produced, e.g., a house to be built, a statue to be made, etc.

C. H. 1542; C. L. 1596. For use, as a house; for usufruct, as a vineyard. C. H. 1545. For a certain time, with regard namely to positive law, by which no perpetual lease is admitted. C. H. 1543, 1544; C. A. 1090. For a price; if gratuitously, there is not leasing but commodatum, L. 46, Dig. Locati et conducti. Cf. Vinnius, de Inst. de Locatione, § 1; C. L. 1603. For a price, that is, for money, Inst. l. 3, t. 25, init. and §§ 4, 5; L. Depositum § 9, Dig. Depositi vel contra; L. Naturalis § 2, Dig. de Praescriptis verbis, etc. If a thing is given for use or usufruct not for money, but for another thing, according to positive law there is another contract, but not hiring and leasing.

According to Positive Law, for by natural law the distinction is not essential. Italian Law, 1569, and French Law, 1709, agree with Roman Law. Therefore, as regards rural estates, L. Si merces § 4, Dig. Locati etc.; C. A. 1103; C. H. 1579, if the tenant farmer is a sharecropper, namely one who pays the owner not money but part of the fruits, the contract is said to be one of partnership. But if the tenant farmer has leased for counted money, there is a true lease. The same must be said concerning partnership or lease of animals. According to C. I. 1665; C. G. 1711, under lease is numbered the contract by which one person hands over animals to another, so that the fruits may be divided between the owner and him to whom they are handed over.

Likewise C. I. 1647 ff.; C. G. 1711, 1763: when the tenant farmer is a sharecropper, there is still a lease. - For a price: in order that there be a true lease, it is necessary that the price be determined when the agreement is made. If an agreement is made that the price be determined afterward, the contract will be innominate: I do that you may give, Vinnius l.c. - That which is repaid by the lessee takes the name of wage, and likewise of pension when immovables are leased. Inst. l.c.; L. Locatio 2, L. Si tibi 5, L. Ex conducto 15 § 4, L. Si merces 25, Dig. Locati conducti; C. A. 1092. But the one who grants is called the lessor, and the one who accepts is called the lessee, and, if he accepts a rural estate, a tenant farmer. C. H. 1546; C. B. 535; L. 857.

Note: The wage must be just. Hiring and leasing is a certain sale and purchase, and as in the latter so also in the former the price can be increased and diminished according to various circumstances. And this also is to be attended to, that in leasing, especially of rural estates, the thing is subject to chance, and therefore account must be taken, in establishing the wage, of the dangers which the lessor or lessee undergoes. Since the object of this contract is the use of the thing, not the thing itself, but this is presupposed, if the thing leased perishes before delivery, or is evicted from the lessor, the contract is dissolved and the lessee is freed. The same must be said if, during the lease, apart from the fault of the lessee, the whole thing perishes. If the thing perishes only in part, the pension will at least have to be diminished; and if that part is notable, the lessee will be able either to seek a diminution of the pension, or even to dissolve the contract. C. I. 1580, 1595; C. G. 1741. Cf. C. L. 1612, 1613.

If the thing itself does not perish, yet the lessee is impeded from the use or cultivation of the thing, apart from his fault, e.g., if a field is overwhelmed by a lasting inundation, occupied by a hostile army, etc., the lessee is freed from paying the pension. L. Si fundus, L. Perinde, L. Et haec, L. Habitatores § 1, Dig. Locati etc. - The contract of lease of itself is dissolved neither by the death of the lessor nor by that of the lessee, C. I. 1596; C. G. 1742, but by the lapse of the time defined in the contract. C. A. 1190 ff.; C. H. 1565 ff. Otherwise C. B. 569. Cf. C. L. 1619 ff. - L. 857. The lease and hiring of immovables, as to time, cannot be constituted beyond thirty years. The dwelling of a house can be leased for the whole life of the tenant and for a full two years after his death. Uncultivated estates can be leased up to one hundred years for their cultivation. C. I. 1571. The goods of those who are under tutelage or care may not be leased beyond nine years. C. I. 1572; C. G. 1748. The lease of dotal and usufructuary goods cannot endure beyond the current five-year period from the cessation of the usufruct and dowry, C. I. 493, 1408; beyond nine years C. G. 595, 1429. Finally, ecclesiastical goods cannot be leased beyond three years without the beneplacitum of the Holy See. If no time has been defined in the lease with regard to rural and urban estates, with regard to furnished apartments, appartamento mobiliato, the time is determined by the law itself. And the owner cannot expel the tenant without having first warned him according to the custom of places. C. I. 1607, 1609, 1622; C. G. 1736, 1757, 1758, 1774. If the lease was made for an indefinite time, or according to C. G. and C. B. without writings, it can end at the judgment either of the lessor or of the lessee, provided nevertheless the end of the lease has first been declared, according to the custom or laws of the place, C. I. 1609.

But if it was made for a definite time, or in writings according to C. G. and C. B., once this has been fulfilled, it ends, without there being need to declare the end of the lease, dare la licenza, C. I. 1591; C. G. 1737; C. A. 1113; C. B. 566. Nevertheless it is necessary to declare the end of the lease at the opportune time whenever it is in the power of the owner whether he wishes or does not wish to dismiss the lessee, C. I. 1597 ff., 1613.

And if the lessor allows the lessee, after the time has elapsed, to remain in the lease, he is understood to lease again, but indefinitely. C. I. 1592; C. G. 1738; C. B. 564 ff., 595 ff., 620 ff.; C. L. 1618, 1623 ff., 1628, 1629. A sharecropping tenancy, defined by no certain time, is understood to last for a year. However entered into, it never ceases by law itself, but its cessation must be announced at an opportune time. C. I. 1651, 1664. A lease of animals, with no defined time, ends after three years, whether it was a simple lease or in equal shares, a metà, C. I. 1681, 1686; C. G. 1815, 1820. - C. B. 595 ff.

Who can lease and hire, and whether hiring and leasing passes to heirs? - Whoever can sell and buy, the same can lease and hire. And whoever generally can contract, can lease and hire; lease, that is, if they are owners of the thing, or usufructuaries, or administrators. Cf. C. I. 300; C. G. 450; C. L. 1597, 1598, 1599. Indeed one can also lease another's thing which he unjustly possesses; and someone can also licitly, speaking of itself, hire it, if no damage to the owner comes from this, because by the hiring no right is taken away from or diminished for the owner. According to C. I. 1572, a lease beyond nine years is not permitted to those who have simple administration. Cf. C. H. 1548; C. L. 1600, 1601, 1602. The lessee can sublease the thing leased to another. L. Cum in plures, Dig. Locati et conducti, and L. Nemo C. de locato; C. I. 1373; C. G. 1717; C. H. 1550; C. L. 1605.

Moreover the contract of hiring and leasing passes to the heirs of both, so long as the predefined time of the lease lasts, unless otherwise agreed. Inst. l. 3, t. 24, § 6. So also according to C. I. 1596; C. G. 1742. - Likewise it passes if work has been leased for something which can be fulfilled by another, L. Veteris C. de contrahendo et committenda stipulatione; otherwise, if the work is such that it cannot be fulfilled by another. C. I. 1642, 1643; C. G. 1795, 1796: the contract of hiring work is dissolved by the death of the worker who had hired out his labor. But he who commissioned the work is bound to pay the heirs of that man the price both of the labor performed and of the material prepared, if these can be useful to the one commissioning it. - E. M.

What can be leased and hired; what in particular concerning wages for services? - Resp. To the 1st: all things can be leased which come into commerce, provided they are not consumable by use, and can and are accustomed to be estimated by a wage. Wherefore both immovables and movables can be leased; likewise service and work, as to carry someone elsewhere, paint a picture, etc.; and incorporeal rights, as usufruct, habitation, tolls, etc. C. A.

1092, 1093; C. B. 535, 581, 611, 631, 652. A work differs from service. A work is that which is made by working; service is the action by which the work is made, the action of the worker, the office, industry, ministry of the one doing something. He who furnishes services is the lessor; he to whom they are furnished is the lessee. As regards work, material and craftsmanship must be distinguished in it. If the lessor furnishes the material and the lessee the craftsmanship, it is hiring-leasing. But if he furnishes both, it is disputed whether it is a lease or a sale. A work, however, must be furnished by one's own labor if it requires one's own expertise. C. B. 613. Moreover the service of a surveyor is regarded as a benefit; and therefore, according to the older authors, hiring and leasing is not entered into with such a person, and consequently there is not a wage, but remuneration and honorarium. The same must be said concerning the service of an advocate, physician, and others who furnish us labor by intelligence, speech, trustworthiness, etc. But remuneration owed to servants and workers is commonly called salary and stipend. Remuneration; for service proceeding from human liberty is something nobler than merchandise, and puts on the character of merit, and of a right to a reward. Cf. Encyclical of Leo XIII, Rerum novarum; S. O. Cas. Consc., ed. 6, num. 77, 5. Therefore the salary which is given to workers for their service furnished is not, as it were, an exchange of thing with thing, nor consequently is it given only for the service itself furnished for another's utility; but it is given also for the person himself, for the necessity of the person, for the merit of the person. According to C. I. 1571-1696, as regards the things which can be leased, special mention is made only of a rural estate, a house for dwelling, and animals. As regards services, three principal species of the hiring of works and industry are said to exist. The first, by which someone obliges his services into another's service; the second, by which carriers both by land and by water oblige themselves to transfer persons or things; the third, by which contractors of works oblige themselves to make works. Cf. C. H. 1575 ff.; C. A. 1151 ff.

Resp. To the 2nd: Therefore the wage for services must suffice to support the worker, from the very intention of nature, which supplies industry and labor to man for seeking those things which are necessary to him for life. From this, the justice of the wage is principally to be estimated; and consequently, since it must suffice for daily sustenance, it supposes a daily office on the part of the worker. Daily sustenance is certainly not to be taken strictly, as for an animal, but more broadly and suitably, as for a man, so that there be included in it, in due proportion, with regard to the whole time of human life and to the condition of workers in civil society, both food, and dwelling, and clothing, and other things entirely indispensable for life itself in the various necessities occurring in human life, from illness, from old age, etc. And these, moreover, are to be estimated with due moderation; for the worker is supposed not to be vicious and wasteful, but of good conduct and frugal. But the daily office is to be understood only morally, and likewise suitably to the very labor to be exercised, harder or lighter. Hence, as it certainly does not comprehend the 24 hours of the day, so neither is it restricted to one or another hour. But since those things which are necessary for life have a varying price according to varying time and place, hence the just salary of workers will also vary according to the various circumstances of times and places. But from this again it is clear that the service of man is not properly merchandise, nor is the wage of that service properly a price. Nevertheless there is no doubt that that service is also as it were merchandise, considered in itself, and not in relation to the person whose act it is; and consequently its wage is accepted as though a price. Hence the wage for services is also estimated in various ways from this head, according to the various customs of regions, from the works themselves, that is, from their intrinsic excellence, general necessity, utility, labor, danger. Hence it is estimated in one way in physicians, teachers, painters; in another in architects, masons, diggers. But it is by no means estimated from their peculiar necessity and utility; for this pertains to the lessee, e.g., if a boy to be instructed is endowed with great talent. Therefore, as the prices of things, so again the wages of services can be increased and diminished. They are increased and diminished from those same causes by which the prices of things grow and decrease: from the fact that there are many who furnish services and few who hire them; from their daily duration, longer or shorter; from the labor spent in them; from the danger which is incurred in them; from the required expertise; from their voluntary offering. Consequently the wage for services will be just if it at least reaches the lowest wage which is accustomed to be given to such workers in such a place and time. - And if one furnishing his services furnishes them to another or to others as though as a partner, it is equitable that he himself also receive something from the profits. But the wage for services can by no means be increased or diminished from the various conditions either of the person to whom they are furnished, or of the person who furnishes them. For justice regards equality of thing to thing, not the various circumstances of persons. And thus a greater wage is not to be paid because a less skilled lessor furnishes them with greater labor, time, danger, than others; or because he is in want, has a wife, and also has children. Hence that absurd family wage is rejected. Moreover it is also rejected from the very established breadth of the just wage of workers, if namely they are of good conduct and frugal, and live with due economy, which indeed is necessary at the beginning, and afterward ends in a small patrimony to be acquired, entirely sufficient for the ordinary necessities of life. If, on the contrary, someone furnishes the same entire service to several at the same time, by right he can, for the opposite reason, demand an entire wage from all; for it is not worth less to each one because it is also equally useful to others. And therefore he who demands one hundred gold pieces to bring the son of Titius to Rome will be able to demand another hundred gold pieces from Caius so that he may also bring his son to Rome. The same is consequently to be said of the surveyor, of the advocate, of the physician, who go somewhere to measure the fields of several, plead the causes of several, assist several sick persons with salutary care. C. B. 612, 614, 632, 653; E. M.

As regards the work which someone undertakes to be made, e.g., to build a house, to sculpt a statue, once the price has been fixed at the beginning, it is thereafter neither increased nor diminished, although the prices of things and of services have increased or decreased. But if the expenses to be made are notably increased from an unforeseen case, e.g., an inundation of a river, earthquake, etc., equitable compensation is to be made; for contracts of this kind are commonly made in such a way that the architect or contractor of works takes upon himself ordinary dangers, not those that are wholly unforeseen and extraordinary. A work leased by contract for a fixed price, or for one price, is not understood to have been delivered until it has been approved. A work leased for a price established according to its individual parts or measures is not judged to have been delivered until it has been measured or the part approved. Consequently it is at the risk of the lessee, not of the lessor. L. 36, 37, Locati conducti ff.; C. I. 1638, 1640; C. G. 1791, 1793. The lessor of a work can withdraw from the lease, reimbursing to the lessee the expenses made and the profit ceasing. For he who is obliged to some deed toward another is freed by furnishing the amount which is of interest to him. C. I. 1641; C. G. 1794.

What are the obligations of the lessor? - 1. Once the agreement has been perfected, he must hand over the thing at the established time, and in that state in which the lessee can use it; and therefore he is bound to make the expenses necessary for this. Likewise he must take care that the lessee enjoy the thing peacefully, without any diminution of his right. L. Sed addes § 5, L. Ex conducto § 1, Dig. Locati, etc.; C. I. 1575, 1576, 1581; C. G. 1719, 1720, 1726; C. H. 1554; C. A. 1096, 1107; C. B. 536; C. L. 1606, 1610, 1611; L. 857.

2. The lessor must manifest the defects of the thing which render its use useless or harmful. L. cit. Sed addes § 1. According to C. I. 1577; C. G. 1721, the lessor must render the lessee immune from all faults and defects of the thing which would impede its use, even if the lessor was ignorant of them when the contract was entered into. But if damage comes to the lessee from faults or defects of this kind, the lessor is bound to compensate the damage, unless he demonstrates that he was ignorant of them. Cf. C. A. 1117; C. B. 537 ff.; C. L. 1606, 1611; L. 857.

3. The lessor cannot, before the predefined time, deprive an unwilling lessee of the thing hired, unless an unforeseen case occurs on account of which the house is necessary to the owner himself. C. I. 1612; C. G. 1761. The lessor cannot dissolve the contract, even if he declares that he wishes to inhabit the house, unless a contrary agreement was entered into.

4. C. I. 1579, 1580; C. G. 1724; C. H. 1557, 1558; C. A. 1118, 1119; C. B. 536, 537; C. L. 1606, 1612, 1613: the lessor cannot, during the lease, change the form of the thing leased. If necessary restorations of the thing leased are of such a kind that they prevent habitation of that part which is necessary to the lessee and his family, there is place, according to circumstances, for rescission of the contract and compensation of damages. C. Propter 3, de Loc. et cond.

5. C. I. 1584; C. G. 1729; C. H. 1569; C. B. 550: if the lessee uses the thing leased for a use other than that for which it is destined, so that the lessor can suffer damage from it, the latter, according to circumstances, can seek rescission of the contract. C. L. 1607.

6. C. I. 1165, 1595; C. G. 1741; C. H. 1556; C. A. 1096, 1117, 1118; C. B. 542, 543, 554; C. L. 1607, 1608: the contract of lease can be dissolved by one party if the other does not satisfy his principal obligations. The principal obligation of the lessor is that he furnish the leased thing fit for use and preserve it in that state. The principal obligation of the lessee is that he not ruin the thing hired, and that he pay the pension at the established time. In Canon Law, in the matter of the lease of an ecclesiastical thing, if the lease is beyond two years, the lessor must wait two years, nor can he before this time deprive an unwilling lessee of the thing hired if he does not pay the pension. C. cit. But this condition is neither of natural law, nor is it required by Roman Law in a non-ecclesiastical thing.

7. According to Roman Law, the universal successor, or heir, cannot expel the lessee before the completed time. But the partial successor, as a buyer, donee, legatee, etc., is not bound to stand by the contract of lease, nor is the lessee, unless nevertheless it has been otherwise agreed, e.g., that the thing leased not be alienated during the time of the lease. L. 9, C. de Locato, etc. Although the buyer is not bound to stand by the contract of lease, nevertheless the lessee, if he is expelled, can act against the lessor and his heirs to obtain his interest. L. Si merces § 1, Dig. Locati etc.; L. Qui fundum, ib.; L. 858, 859. - According to C. I. 1597 ff.; C. G. 1743 ff.; C. A. 1120, 1121, the buyer of a leased thing generally cannot expel the lessee, unless it was established in the contract of lease that, if the thing leased is sold, the buyer can dissolve the lease and expel the lessee. In this case the buyer is bound to warn the lessee at an opportune time. And if no stipulation intervened, according to C. I. and C. A. the lessor is bound to compensate the damages of the lessee; according to C. G., as regards damages and interest, the lessor, and failing him the buyer, is bound to keep the lessee indemnified. C. H. 1571; C. B. 571 ff.

8. "In works leased to two at the same time, it is fitting that the prior lessee be satisfied first." L. 26, Locati conducti ff.

What are the obligations of the lessee? 1. He must pay the price at the established time. And therefore, as though to provide security, he is bound to furnish urban estates with sufficient household goods, rural estates with instruments and cattle, and to store the fruits in the place concerning which agreement was made. C. I. 1583, 1603, 1615, 1616; C. G. 1728, 1752, 1766, 1767; C. H. 1555; C. L. 1608.

2. He must use the thing for that end for which it has been given, and not for another. C. I. 1583; C. G. 1728; C. H. 1555; C. B. 550; C. L. 1608. - 3. He is bound to make lease expenses, namely expenses of lesser moment, pertaining to the restoration of a thing worn by use, defined by custom or law. C. I. 1604-1606, 1625; C. G. 1754-1756, 1777; C. A. 1096; C. B. 582. But taxes and other burdens the lessor, not he himself, is bound to pay, speaking of itself and excluding a special agreement. C. L. 1609. - 4. He must employ in the use of the thing that diligence which he employs in his own thing, lest the owner of the thing suffer detriment. C. I. 1583; C. G. 1728; C. H. 1555; C. L. 1608, 1627. - 5. He is bound to warn the owner of the thing if an outsider has tried by some act to injure his rights. C. I. 1587; C. G. 1768; C. L. 1608.

6. He is not prohibited from subleasing, unless something else was stipulated, or damage to the lessor comes from it, L. 11, C. h.t.; C. I. 1573; C. G. 1717; C. H. 1550; C. A. 1093. As regards the wage to be paid, the sublessee is obliged to the owner himself of the thing leased, if the latter has ordered payment from him, and he has not yet paid the lessee. C. I. 1574, 1958; C. G. 1753. A sharecropping tenant farmer is prohibited from yielding his right to another or leasing out the estates. C. I. 1649; C. G. 1763. According to C. B. 549, sublease cannot be made without the permission of the lessor.

7. When the lease has ended, he must restore the thing in that state in which he received it, or according to its estimation, if the thing was leased, an inventory having been made, according to the estimation. The lessee cannot retain the thing by another right which he perhaps has against the lessor. C. A. 1109; C. H. 1561; C. I. 1585, 1588; C. G. 1732, 1735; C. B. 556, 586 ff.; C. L. 1608.

C. B. 551 ff. A tenant farmer can be such in two ways: a tenant farmer who has leased for counted money, and a sharecropping tenant farmer, who is partaker of profit and loss with the owner, and divides the fruits of the land with him as though by the right of a certain partnership. L. 25 § 6, Locati cond. D. A sharecropping tenancy is ruled partly by the law itself, partly by special agreements; when agreed pacts are lacking, and when local customs also are lacking, these are supplied by the law itself. C. I. 1654. A lease of animals is ruled by pacts, and, when these are lacking, by law, C. I. 1665, 1668; C. G. 1800, 1803. He who furnishes the cattle is called the lessor; he who accepts them is called the lessee. According to law, during the lease, neither the lessor nor the lessee can dispose of the animals. C. I. 1678, 1686; C. G. 1812, 1830. Those which perish by chance, however, perish to the owner alone. C. I. 1675. Cf. C. G. 1810. When the lease has ended, the lessor takes beforehand for himself as many animals as are equivalent to the price of the animals leased. And if those which remain do not suffice, the loss will be his. C. I. 1683, 1686, 1692, 1695; C. G. 1817, 1820, 1830. These are common to any lease of animals; other things which are special according to its various species must be taken from the proper laws. C. I. 1666, 1669 ff.; C. G. 1801, 1804 ff.

If the lessee could not use the thing leased by fortuitous event, he is not bound to pay the wage; e.g., if he could not inhabit a house because of an enemy incursion in war. Likewise, if he could not use it from a cause on the part of the lessor himself, he is not bound to pay the wage; e.g., if he could not inhabit a house because, on account of the lessor's enmities, it is exposed to the devastation of robbers and assassins. But if he could not use it from his own cause, he is bound to pay the wage; e.g., if he could not inhabit a house because, by adverse health, he was compelled to move elsewhere.

The same holds with regard to services. For if the lessor of service could not furnish it by fortuitous event, e.g., because of a storm, he himself cannot demand his wage, nor can the lessee demand the services. Likewise, if he does not furnish the service from his own cause, because, e.g., on account of a crime he is thrown into prison, he cannot demand the wage. But if he is impeded from furnishing it by a cause on the part of the lessee himself, e.g., because the latter fell ill, he can demand the wage; but if meanwhile he has leased his service to another, according to equity he must deduct as much as he received from that one. C. B. 615. Cf. ib. 616 ff.

Work begun and interrupted: if by fortuitous event, the wage is owed proportionally, and neither can the lessor demand the whole wage, nor can the lessee demand the whole service. If from the cause of the lessor, and that cause is just, the wage is owed to him proportionally, but not for the whole service not furnished; but if the cause is unjust, not even proportionally by strict right is the wage owed to him; nevertheless according to equity a proportional wage belongs to him, insofar as that part of the service furnished was useful to the lessee. But if it has happened from the cause of the lessee, whether unjust or even just, the whole wage is owed by strict justice. L. 38, Locati conducti ff. Nevertheless, if meanwhile he finds another lessee, according to equity what he gains from another can be deducted. C. B. 617-619. A master dismissing a servant without sufficient cause is bound to compensate him for the loss thereby arising. According to C. H. 1584, beyond the stipend owed to him because of the service furnished, the stipend of fifteen days must be paid to him.

Finally, as regards work, if before its delivery it perishes by fortuitous event, since the thing perishes to the owner, the material perishes to the lessor, the craftsmanship to the lessee, and both to the latter if he furnished both. By fortuitous event; for if it perishes by the fault of either, the whole damage will belong either to the lessor or to the lessee, if the latter had to furnish the material and craftsmanship; otherwise the lessee owes the price of the material to the lessor, and the lessor owes the price of the craftsmanship to the lessee. Namely, he who is at fault furnishes the damage. C. I. 1636, 1637; C. G. 1788-1790. - C. B. 639 ff., 644, 645, 649.

What as to the fault to be furnished? Since the contract of hiring and leasing is for the advantage both of the lessor and of the lessee, each furnishes only grave and light fault, not the very slightest. Lugo d. 29, n. 64; Molina d. 494, n. 1. Neither is held to fortuitous events, in which there is no fault. C. H. 1555, 1559. Consequently, the cab-driver, carriage-driver, boatman, are held concerning damage if by their fault the cab and carriage are overturned, the ship perishes by shipwreck, and the goods which they had hired themselves to carry perish. Likewise a fuller is held concerning damage if he accepted garments to be polished and mice gnawed them, or if he exchanged a cloak and gave one man's to another, even if he did it unknowingly, because he ought to have guarded against this thing. L. Item 13, Loc. cond. Dig.

What if the thing leased perishes? From the general rule, if the thing leased perishes, and it is not known whether the thing perished by the fault or fraud of the lessee or custodian, or by chance, the lessee or custodian is obliged to prove both: that the thing perished, and that the thing perished without his fault or fraud. Cf. Molina d. 494, n. 13. Yet if a leased house perishes by fire, the lessee must be absolved, unless the lessor demonstrates the fault of the lessee. For often fire happens by the fault of servants, which the father of a household is not compelled to furnish. L. Si vendita, Dig. de Periculo et commodo rei venditae. Cf. Laymann n. 6; L. 585.

According to C. I. 1888, 1589, 1590; C. G. 1733, 1734, 1735, the lessee of a house or rural estate is held concerning fire, unless he demonstrates that the fire happened by fortuitous event, or by greater force, or from a fault of construction, or according to C. I. 1589 notwithstanding the diligence customarily employed by any diligent father of a household, or that the fire was communicated from a neighboring house. If there are several tenants, all are equally held, together with the lessor according to C. I. 1590; C. G., Law of Jan. 5, 1883, if he himself also inhabits it, and each one in proportion to the value of the part occupied by himself; unless he demonstrates that the fire began in the dwelling of one of them, in which hypothesis this one alone is obliged; or unless he demonstrates that the fire could not have begun from his place. And generally according to C. I. 1588; C. G. 1732, the lessee must furnish compensation for detriments and damages which occur in the time of his lease, unless he proves that they happened without his fault; and according to the same C. I. 1588, he must furnish the same for those of which the cause was someone from his family, or from his sublessees. C. H. 1563, 1564, 1568; C. A. 1111, 1112; L. Siquis 9, L. Videamus 10, L. Item 13, Locati conducti Dig.

Whether the lessor of fields is bound at least to remit part of the pension in the case of sterility because of hail, e.g., or another misfortune? "Of itself by natural law, speaking according to rigor, the lessor is never bound to remit to the tenant farmer the pension owed, because misfortunes naturally come upon him. For a thing which is destroyed by a fortuitous or extraordinary event perishes to the owner; but the lessee is the owner of the fruits to be gathered; therefore.... I said ... of itself, because by general agreement, confirmed by law, it has been introduced that if the loss is enormous, something be remitted; but if it is total, that the damage be divided between both, namely the lessor and the lessee. But if it had not been established thus, the lessee would pay a smaller rent." L. 860. Gur. Cas. 973.

What if the tenant farmer indeed had a favorable harvest, but nevertheless lost all the fruits already gathered into the barn, whether by enemy plundering or by fire? - "In this case the tenant farmer cannot demand a diminution of the pension, as it seems, at least more probably. The reason is that when the fruits have already been gathered into the barn, by full right they are in the ownership of the lessee; nor do the agreements or laws, according to which a smaller rent must be paid when an extraordinary calamity comes upon him, seem to regard this case. Elbel n. 673; La-Croix l. 3, p. 2, n. 1049, against Lessius and others. In practice, certainly, the lessor before the sentence of a judge would be held to nothing." Gur. Cas. 976.

What are the dispositions of Law as regards the preceding cases? According to C. Propter 3, de Loc. et cond., when great sterility occurs in the estates of the Church, there is remitted to the tenant farmer in proportion, "since sterility can be compensated by the abundance of the preceding or subsequent year." L. Ex conducto 15 § 2, Dig. Locati etc.: "If blight has occurred, and has taken away the whole fruit, it is not the damage of the tenant farmer, lest beyond the damage of the seed lost, he be compelled to furnish the rents of the field." Wherefore if the damage is immoderate, the lessee is freed from paying the pension. L. Si merces 25 § 6, e.t.: "Greater force ... ought not be damaging to the lessee, if the fruits have been injured more than can be tolerated."

Hence, if sterility is great, but not complete, the pension is remitted proportionally. L. 860. C. I. 1620, 1621; C. G. 1772, 1773; C. A. 1104, 1106: the tenant farmer can, by explicit agreement, subject himself to fortuitous events. Such an agreement, however, is not understood except for ordinary fortuitous events, such as hail, lightning, frost; not for extraordinary cases, such as devastation of war, or inundation to which a region is not usually subject, unless the tenant farmer has subjected himself to all fortuitous events, foreseen and not foreseen. C. I. 1617; C. G. 1769.

If the lease is for several years, and during it the totality or half of the fruits of some year perishes fortuitously, the tenant farmer can request a certain remission of the price, unless this is compensated by what he gathered in the preceding years. If this compensation is absent, the remission of the price is determined at the end of the lease, the fruits of all the years of the lease being computed. C. I. 1618; C. G. 1770. If the lease is for one year, and the totality, or at least half of the fruits, has perished, a proportional remission of the price is made to the lessee, who cannot demand any remission if the loss is less than half. Cf. C. A. 1105.

C. I. 1619; C. G. 1771: the tenant farmer cannot obtain remission if the loss of the fruits happened after they had been separated from the soil, unless the contract grants to the lessor a certain part of the fruits, in which hypothesis the lessor will undergo the loss of his part, provided the fault or delay of the lessee did not intervene in handing over to the lessor his portion. Cf. C. A. 1107, 1108. C. I. 1619; C. G. 1771: if the cause of the damage existed and was known when the contract was entered into, the tenant farmer can request no remission. C. B. 584: no remission to be made is established. C. L. 1630: a lessee cannot demand diminution of the pension from a fortuitous event. C. H. 1575, 1576: no right of remission is granted to the tenant farmer for ordinary cases; but it is granted for extraordinary unforeseen cases, provided the fruits are lost beyond half their part before they have been gathered.

What is emphyteusis? - Emphyteusis is a Greek word, which means the same as insertion, because namely this special thing is had in it, that the land is to be improved, and this is done by inserting something into the land. As regards the thing itself, emphyteusis is: a concession of useful ownership in an immovable thing, namely in a rural estate, with the obligation of cultivating and improving the same, and of paying the canon, that is, the established pension in recognition of direct ownership, made either in perpetuity, or for the life of the emphyteuta, or of several, or for a time not less than ten years. With regard to Common Law, the emphyteuta is bound to pay the customary contributions, because, since he receives all the emoluments of the thing, it is equitable that he also bear its burdens. Inst. l. 3, t. 25, § 3; C. A. 1123; C. I. 1556; Struggl 13, 17 ff.; L. 865.

Whether emphyteusis is admitted by more recent laws? - According to C. G., emphyteusis does not seem to be recognized. But it is recognized according to C. H. 1605, 1628 ff.; according to C. A. 1123, 1127 ff.; and according to C. I. 1556 ff. According to C. I. 1556, emphyteusis is a contract by which a certain land is granted in perpetuity or for a time, with the obligation of improvement, and of the payment of an annual determined prestation, whether in money or in fruits. According to C. L. 1654, emphyteusis is perpetual. That which is for a time is counted as lease.

By what laws is emphyteusis governed? - Emphyteusis, by reason of the goods which are given into emphyteusis, is one kind ecclesiastical, another lay. Ecclesiastical emphyteusis is governed by Canon Law and Roman Law. Hence it is not licit to redeem an ecclesiastical emphyteusis without the Apostolic beneplacitum. - Lay emphyteusis is one kind ancient, another new. The former is governed by ancient Law and by the agreed pacts. The latter, that is, entered into after the year 1865, is governed by the agreed pacts and by more recent Law. Italian Law, Nov. 20, 1865, art. 29; C. I. 1557. - L. 865; E. M.

What according to C. I. are the special laws of emphyteusis? - Emphyteusis by law itself is subject to the following prescriptions: The emphyteuta has the power of disposing of the emphyteutic land and its accessions, both by act inter vivos and by last will, and in whatever way the land is transmitted, no prestation is owed to him who granted it. Subemphyteusis is not admitted. - The grantor of the land can request, every twenty-ninth year, recognition of his right from the possessor of the land, without, however, any prestation being owed to him. The emphyteuta can always redeem the land from the burden of emphyteusis by paying the prescribed sum of money. Arts. 1562-1564. - Provided the aforesaid laws are preserved, other particular agreements can be constituted; if these are lacking, one must stand by the laws established in the same Code. According to these laws, arts. 1558-1561, the emphyteuta makes all the fruits of the land and of its accessions his own, and has the same rights which an owner would have in treasures and mines which are discovered in the land. Whatever the sterility or loss of fruits may be, or if part of the land perishes, the emphyteuta cannot request remission or diminution of the canon. But if a notable part perishes, the emphyteuta can renounce his right, yielding the land to the grantor. Taxes imposed on the estate and any burdens inhering in it pertain to the emphyteuta.

Italian Law, Nov. 30, 1865, art. 30; C. A. 1129, 1134, 1140, 1144; C. H. 1628 ff.; C. L. 1655 ff.; L. 865.

How does emphyteusis end; what does the owner owe when emphyteusis has ended? Resp. To the 1st: Emphyteusis is lost by prescription of 30 years, namely if the emphyteuta has ceased from payment of the canon for so much time. C. I. 1563. - It is rescinded if the emphyteuta has rendered the land notably worse, or, having been legitimately summoned, has not paid the canon for a whole two years, C. I. 1565. - It is extinguished by the destruction of the thing; or when the time of concession has been fulfilled; or if the emphyteuta has redeemed the land at the legitimate price. C. I. 1560, 1564, 1566. - C. A. 1135.

Resp. To the 2nd: Once emphyteusis has been extinguished, the estates return to the owner with the fruits not yet received. If emphyteusis ends because of lapse of time, the owner is bound to refund to the emphyteuta as much as the land has become more valuable. But if it ends by fault of the emphyteuta, he is bound to pay either the value of the improvement made, or the expenses made. C. I. 1566. Servitudes and mortgages imposed in the meantime on the rent-paying thing vanish by law itself. C. I. 1567.

What is a fief? A fief, from faith, is the concession of useful ownership in an immovable thing, with the obligation of furnishing fidelity and personal service to the direct lord. He who receives the fief is called feudatory or vassal, and he who hands it over is called infeudator or lord. But a vassal differs from an emphyteuta in this, that the latter must pay a real pension in recognition of direct ownership, while the former must only furnish fidelity and personal service, e.g., to wage war. The solemn act by which a vassal was put in possession of the feudal thing, and at the same time was bound to faith toward the lord, is called investiture. Struggl 14; L. 867.

What is libellus? Libellus is nothing else than emphyteusis, or a fief, subordinated to another emphyteusis or fief; insofar namely as an emphyteuta or vassal sub-emphyteuticates or subinfeudates another. He who receives emphyteusis or land from the direct lord is called emphyteuta or feudatory. But he who receives the same thing from these for a pension is called by the particular name libellarius. That which is paid to the direct lord is called laudemium. - According to C. H. 1644, laudemium must be paid to the direct lord by anyone who comes under an onerous title into possession of useful ownership, when in the contract of emphyteusis such a right has been brought into pact; when no determined quantity has been established, two for each hundred are to be paid. C. L. 1701: subemphyteusis is prohibited. - L. 868.