Chapter — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Chapter III. On Lease-Hire
- Lease-hire is a contract by which the use or fruits of a thing, or the work of a person, is received by one and granted by the other for a certain wage and for a time. He who hands over the thing for the use or utility of another is called the lessor; the other is named lessee or hirer. Moreover, various species of lease-hire are enumerated: 1. lease of buildings; 2. of fields; 3. of animals; 4. of labor and service. - Gallican Civil Code, art. 1711.
To the contract of lease-hire emphyteusis and fief approach in some measure. Emphyteusis is a contract by which an immovable thing is granted to another as to useful ownership, either in perpetuity or at least for 10 years, with the burden of paying an annual pension to the direct lord. But fief is a contract similar to emphyteusis, or the handing over of an immovable thing for useful ownership, with the burden of exhibiting service or fidelity to the direct lord. Yet emphyteusis and fief differ from lease-hire because they cannot be constituted except in an immovable thing, nor for a shorter time than a decade.
I. General rules of lease-hire.
- Principles. - 1. Lease-hire can be made in writing or by word; but if it is made by word alone, proof by witnesses is not admitted in Gallican law unless execution has already begun; yet an oath can be exacted from the party denying. - 2. The lessee can sublease, unless something else has been stipulated, or detriment is thereby caused to the lessor. - 3. Lease-hire is not dissolved by the death of the contracting parties, but passes to the heirs. - 4. If the time of lease-hire was not determined, it can cease at the judgment of either contracting party, provided he warn the other at a suitable time according to the custom of places and the nature of the thing leased. - 5. If the lessor has sold the leased thing, the lessee cannot be expelled, but the term of the lease-hire must be awaited 1.
1 This fifth principle holds according to Gallican law (Art. 1745), but not generally according to Roman law (L. 9, C. De locato et conducto). See Lugo (Disp. 29, n. 16).
II. Obligations of the lessor.
- He is bound to disclose harmful defects of the thing to be leased. - 2. He ought to provide that the lessee enjoy it tranquilly. - 3. It falls to him to sustain the necessary expenses for repairing the leased thing. Yet he is not bound to small expenses, as will soon be said. - 4. He cannot change the form of the leased thing without the consent of the lessee. Nevertheless, he can make necessary repairs even while the hirer is unwilling, nor is he bound to compensate whatever damage arises from this (Art. 1724).
III. Obligations of the lessee.
- He ought to use the leased thing as a good father of a family, for the sole end of the lease-hire. - 2. He is bound to restore or repair those things which have perished or have been made worse by his fault. - 3. Indeed in the external forum he is held concerning all damages which the leased thing undergoes, unless he proves that they happened with his own or his subjects' fault set aside. - 4. Moderate repairs, which are called locative, pertain to him, for example, to repair windows, etc.
- Questions. - Q. 1. What of the law, if the leased house perishes by fire?
Resp. 1. In the forum of conscience the lessee is bound to nothing if it was burned without any fault of his, even juridical; indeed probably even if it perished from juridical fault alone.
Resp. 2. In the external forum the lessee is bound concerning the damage, unless he proves that it happened without any fault of his, even juridical, as was said above (Art. 1734).
Q. 2. What specifically concerning the hiring of works?
Resp. 1. The hirer of a servant or worker is bound to agree with him concerning a just wage, such as is commonly accustomed to be given to such persons.
Resp. 2. If the determination of the wage was left to the judgment of the hirer, he ought to give a just wage, at least the lowest. But a master dismissing a servant before the time without a sufficient cause is bound to repair the damage arising from it.
Resp. 3. If a servant or worker offers himself of his own accord, and you do not need him, but receive him only from charity, recall what was said concerning Justice n. 625 as to what you ought to give him, and see St. Lig. n. 522.
- Q. 3. Whether the lessee of fields is bound to the entire rent rent in the case of sterility because of hail, or some other extraordinary misfortune?
Resp. Negatively. For although in the rigor of justice by natural right he seems to be bound to this, nevertheless it has been introduced by general custom that, if the loss is immense, something be remitted, and the damage be undergone equally by both. Except, unless from the fruits received through other years an equitable compensation is given. - St. Lig. n. 860; and it is confirmed from both Roman and Gallican law.
Q. 4. Whether the tax must be paid by the lessor or by the lessee?
Resp. 1. Per se, with a special agreement set aside, the lessor ought to pay taxes; because he is not only the owner of the thing, but he did not even transfer usufruct except in a successive manner and from day to day. But it is otherwise concerning full usufruct properly so called, as was said above, n. 593.
Resp. 2. From Gallican law, the lessor pays only taxes imposed on the land. But taxes for doors and windows must be paid by the lessee; yet if he who ought to pay does not pay, the fisc has an action against the other, with recourse, however, saved to the latter against the former.
- Q. 5. Whether a messenger going to a certain place can lawfully receive an entire wage from several persons?
Resp. 1. Concerning drivers there is no difficulty, because such is the custom. - Thus commonly the Theologians.