Article I: On the Letting of Things

541. The letting of things is a contract by which someone obliges himself to furnish to another the use or enjoyment of some thing for some time for a certain price (a. 1709).

Several species of it can be distinguished: the letting of buildings and movables (bail a loyer; huis- of meubelverhuring); the letting of goods (bail a ferme; huurpacht of verpachting van land en goederen); the letting of animals (bail a cheptel; veepacht); the letting of ships (charte-partie, louage maritime; scheepsvervrachting), etc. On these the civil or commercial code can be consulted; nevertheless the general principles are common to all, and we shall hand these down here, both as regards the lessor and as regards the lessee.

542. Obligations of the lessor (bailleur ou loueur; verhuurder of verpachter). He must:

1. Hand over the thing to the lessee, and indeed at the established time, so that he is held to repair damage arising from culpable delay, and in good condition, so that the thing is apt for the use for which it is destined (a. 1719).

Since, moreover, it must be in good condition, apt for use, hence the lessor must disclose those hidden defects of the thing to be let which can harm the lessee or impede its use, as was said concerning sale; for example, that a horse is accustomed to throw off loads when it is sought for transporting wares; that it is unfit for working; that the house is infectious. By civil law he is held to compensation even if he was ignorant of defects of this sort (a. 1721); nevertheless, if moral fault is absent, he is not obliged in conscience before the sentence of the judge, but after the sentence he is held by reason of the public good; indeed, if the matter is too clear, charity can oblige him to make repair before the sentence of the judge, so that useless expenses may be avoided for the other.

2. Preserve the thing in that condition in which it remains apt for the use for which it was let; hence the lessor a) must carry out the greater repairs necessary for the conservation of the thing (a. 1720), but not the small ones, or, as they are called, locative repairs, which must be furnished by the tenant; b) cannot change the form of the thing let (a. 1723), nor do anything else by which the lessee's enjoyment is diminished; c) must pay the real taxes imposed for the dominion of the thing, unless it has been otherwise agreed.

Which repairs are greater or small must be determined from the codes and the usage of places. But if the thing itself perishes, the contract is dissolved by that very fact; if part of the thing perishes, the tenant can seek a diminution of the price or a dissolution of the contract (a. 1722).

3. Furnish the tranquil enjoyment of the thing, and therefore hold the lessee harmless against hidden defects which impede the use of the thing, and protect him against eviction or a disturbance of right brought by a third party (a. 1725-1727).

543. Obligations of the lessee (preneur, locataire, fermier; huurder, pachter). He must:

1. Use the thing let as a good father of a family, and indeed only for that use for which it was let, whether explicitly, or implicitly insofar as consent is legitimately presumed from the circumstances (a. 1728).

Hence a) if he were to abuse the thing let, or use it otherwise against the will of the owner, he is held to the repair of the damage inflicted, and the contract can be rescinded (a. 1729). b) Nevertheless he can sublet the thing or cede the letting itself to another, who is suitable in this way, for the same end, unless this faculty has been forbidden by a special pact (a. 1717), or positive law prohibits it, as the German Code does (a. 49). c) He must make the lesser and usual repairs, or locative repairs (a. 1754); and pay the personal taxes imposed for the use of the thing, unless it has been otherwise agreed.

2. Pay the agreed rent at the established time (a. 1728), in the manner indeed fixed beforehand or customary in the region.

If he does not pay at the established time, the lessor can keep certain movables of the lessee so that he may be secure concerning payment. But if the contract ceases, the tenant must pay part of the price according to the proportion of the time during which he was not impeded in the use of the thing.

3. When the time of the letting has ended, and not before, return the thing let in that condition in which it was handed over, excepting those things which by age, legitimate use, or chance have collapsed or become worse (a. 1730 and 1731).

He must compensate damage inflicted either by the lessee himself, or by domestics or boarders who are under his care, or by subtenants (a. 1735), unless he proves that it happened without his fault: thus French law (a. 1732); or at least after juridical fault has been proved: thus German law. In conscience he must immediately repair damages arising from moral fault; only after the sentence of a judge must he repair those which arise from juridical fault, as from lack of vigilance or from a dangerous art exercised.

French law adds (a. 1733 and 1734): if a house perishes by fire, he is held concerning the fire, unless he proves that it happened without his fault; but if there are several tenants dwelling in this house, all must pay part of the damage proportionately to the price of the letting, unless they prove that the fire was started in the room of another, or could not have been started in their own place.

This disposition, contrary to natural equity, does not oblige in conscience those who know very well that the fire was not started by their own fault, at least juridical, or by the fault of those whose care they have. Nevertheless the lessor can use the benefit of the law as often as it is not sufficiently established that the lessees were sufficiently vigilant; but if this were established, he could not, because the judicial sentence would be founded on a false presumption of fact.

544. Observations. 1. In the letting of fields something particular is had in Roman and modern law, namely, some part of the price of the letting is remitted when, because of a sudden misfortune, for example hail, the fields have lacked fruits for the greater part; this is wholly consonant with natural equity, since the fruits of fields more than other things are, as it were, of themselves aleatory. In our law (a. 1769-1773) that remission is not conceded unless at least half of the ordinary harvest has been lost, and there is no compensation from preceding years; besides, the lessee can renounce this right by an express clause. But also outside that legal case and generally, in this matter the norms of charity and natural equity are to be observed, so that something of the price of the letting may readily be remitted, or a delay of payment conceded.

On the other hand, from justice it is required that commonly a price of letting be established which permits the lessee, in ordinary circumstances, to live with his family from the fruit of his labor; this generally is obtained if the price does not exceed that which commonly is asked in such a region by a Christian owner: for common estimation is accustomed to conform to this.

2. A special letting for a long time is emphyteusis (erfpacht). It is a contract by which the owner of an immovable thing transfers to another the useful dominion, or full enjoyment, for a long time, while retaining direct dominion, and under the burden of an annual pension to be paid to himself. In our country it is ruled by the law of 10 Jan. 1824 and cannot be entered upon for a time under 27 years or beyond 99; in other regions it is subject to different legislation, as was said in n. 164, note 1.

3. Certain dispositions of present-day civil law are to be noted:

a) The letting of things is not dissolved by the death of the contracting parties, but passes to the heirs (a. 1742), at least if it was entered into by an authentic act. Sometimes, however, an exception is admitted for the letting of fields, when the tenant has died, in favor of the heirs, as from the Belgian law of 7 March 1929, which permits them to renounce within a year.

b) If the lessor has donated or sold the thing, or wishes to occupy it himself, he cannot expel the tenant, but the constituted term must be awaited (a. 1743).

c) In certain regions there is the usage of letting rural farms by that law that the fruits are divided between the lessor and the lessee; concerning which pact see a. 1763 and following (Italian Code, a. 1647 and following). Likewise there is the usage of letting herds of larger and smaller animals under the same condition of dividing the profit, or under other special conditions; concerning which see a. 1800 and following (Italian Code, a. 1665 and following).

d) In more recent time, in several legislations new stipulations have been made concerning the letting of fields (le bail a ferme; de landpacht); and these must then be attended to and also of themselves have force in conscience. Thus the Belgian law of 7 March 1929.

4. Canon law also establishes many things concerning the letting of things:

Can. 1540: The immovable goods of a church are not to be sold or let to their own administrators or to those joined to them in the first or second degree of consanguinity or affinity without the special permission of the local Ordinary.

Can. 1541: Let contracts of letting of some ecclesiastical fund not be made except according to the norm of can. 1531, § 2 (that is, by public bidding or at least when the letting has been made known); and in them let there always be added conditions concerning boundaries to be guarded, concerning good cultivation, concerning the canon to be duly paid, and concerning opportune security for fulfilling the conditions.

Can. 1542: 1. In the emphyteusis of ecclesiastical goods, the emphyteuta cannot redeem the canon without the permission of the legitimate ecclesiastical superior mentioned in can. 1532; but if he has redeemed it, he must give to the church at least that amount of money which corresponds to the canon.

2. From the emphyteuta let suitable security be required for payment of the canon and fulfillment of the conditions; in the instrument itself of the emphyteutic pact let the ecclesiastical forum be established as arbiter for settling controversies perhaps to arise between the parties, and let it be expressly declared that improvements accrue to the soil.