Chapter — Konings, Theologia Moralis
CHAPTER III: ON LEASE (Lease)
- Lease is a contract by which the use, or fruits of a thing, or the work of a person, for a certain wage is accepted for a time by one and granted by another. He who hands over a thing for the use or utility of another is called the locator (Lessor); the other is named locatary or conductor (Tenant or Lessee). Moreover the species of lease are variously numbered: 1° lease of buildings; 2° of fields; 3° of animals; 4° of labor and servitude. (o) p. 482.
I. General Rules of Lease.
Appendix annotation (o), to n. 1017. p. 402. col. 2. To these our and the English jurists add lease of custody, which differs from the contract of deposit only to this extent, that the latter is gratuitous, the former onerous; lease of work for carrying goods, which can be referred to lease of work (this number under 4°); and lease of work to be made, concerning which we treat in n. 1023 in the Note. Kent treats of the dispositions of our law concerning various species of lease, Lect. XL. LII. LIII.
- Principles. - 1° The locatary generally can sublet, unless something else has been stipulated, or detriment be done to the locator from it. - 2° Lease2 is not dissolved by the death of the contracting parties, but passes to the heirs. - 3° If the time of lease has not been determined, it can cease at the judgment of either contracting party, provided he warn the other at a fitting time according to the custom and laws of places, and the nature of the thing leased. - 4° If the locator has sold the thing leased, the locatary cannot be expelled, but the term of the lease must be awaited.
II. Obligations of the locator.
Notes to n. 1018. (1) Kenr. Tr. XI. 135.
- 1° He is held to open the harmful vices of the thing to be leased. - 2° He must provide that the locatary enjoy it tranquilly. - 3° It is incumbent on him to sustain the necessary expenses of repairing the thing leased. - 4° He cannot change the form of the thing leased without the consent of the locatary. (p) p. 483.
III. Obligations of the locatary.
Appendix annotation (p), to n. 1019. p. 403. col. 1. The necessary expenses of repairing a leased thing, a building, are called in English "substantial repairs," which "include repairs to the main walls, roofs, timbers, etc."; they are distinguished from repairs which are called moderate, in English ordinary repairs, for instance, "the common reparations to windows, shutters, doors, etc." (Smith, n. 157). Whether the lessor is held to moderate expenses, or rather the lessee, in defect of a special agreement, must be determined from particular laws or the custom of places.
- 1° He must use the thing leased as a good father of a family, for the sole end of the lease. - 2° He is held to restore or repair those things which have perished by his fault, or have been made worse. - 3° Not even in the external forum is he held for damages which the thing leased undergoes, unless it is proved that they happened by his fault, at least juridical. - 4° He is held to pay the rent at the stated time, and that with the legal increase from the day on which it was to be paid, if he does not pay at the stated time.
- Questions. - Query 1° What of law, if a leased house perishes by fire?
Resp. 1° In the forum of conscience the locatary is held to nothing if it has been burned without any fault of his, even juridical; indeed probably even if it perished from juridical fault alone.
Resp. 2° Nor is the locatary held for the damage in the external forum, unless it is proved that it happened from the fault, at least juridical, of the locatary.
Query 2° What especially concerning lease of works?
Resp. 1° The locator of a servant or worker is held to agree with him concerning a just wage, such as that which is commonly wont to be given to such persons.
Resp. 2° If the determination of the wage was left to the judgment of the conductor, he must give a just wage, at least the lowest. But a master dismissing a servant before the time without sufficient cause is held to repair the damage emerging from it.
Resp. 3° If a servant or worker voluntarily offers himself, and you do not need him, but receive him only from charity, resolve from the things said in n. 710 what you owe to give to him.
- Query 3° Whether the locatary of fields is held to pay the whole rent in the case of sterility, on account of hail, or another extraordinary misfortune?
Resp. By common law, affirmatively, if the rent to be paid is Money.
Query 4° Whether the tax of the thing leased must be paid by the locator, or by the locatary?
Resp. Of itself, a special agreement excluded, the locator must pay the taxes; because not only is he the owner of the thing, but he has not even transferred the usufruct except in a successive manner and from day to day. But otherwise concerning full and properly so-called usufruct, as was said above n. 678. II. 2.
- Query 5° Whether a messenger going to a certain place can licitly receive the whole wage from several?
Resp. 1° Concerning drivers there is no difficulty, because such is the custom. - Thus commonly Theologians.
Resp. 2° Concerning a messenger there is a twofold opinion here. - Recall the things said above, n. 831. q. 1.
Note. - To the contract of lease must be referred the contract of accomplishing some work, concerning which each one should consult the laws of his State. Generally one must stand by the agreed pacts. Not rarely in this contract among undertakers of a work (the contractors) there occurs the case of mutual conspiracy for increasing the price, or even the case of public bidding, more or less impeded. But cases of this kind, with the circumstances prudently attended to, will have to be resolved from the things handed down concerning Public Auction, n. 999 sq., and concerning Monopolies, n. 1008 sq.