Leases

607. Notion. Location is a contract by which the use or usufruct of some thing, or the work of a person, is conceded to another for a certain price.

a. He who furnishes the use or usufruct of the thing is called the locator; he who pays the price, the tenant or lessee; he who hires out his work, the servant or worker; he who pays the price, the master. The price owed from the pact must be paid in money; if another thing is paid in return for money, there is not a contract of location, but another innominate contract.

b. Location by its nature is an onerous contract: for if someone gratuitously concedes to another the use or usufruct of some thing, there is commodatum; and it is a consensual contract, which is already perfected as to essence by consent alone before the handing over of the thing leased. Wherefore once a contract of location has been entered by mutual consent, neither the locator nor the tenant is permitted to recede from the contract.

c. The object of this contract can be twofold: the use or usufruct of a material thing, whether movable, as of a horse or sheep, or immovable, as of a house, field, or farm; or services to be furnished by a man. Therefore a twofold location is distinguished: alpha. location of things and beta. location of work. The former is usually called simply location (Mietvertrag - Pachtvertrag), the latter hiring (Arbeitsvertrag - Lohnvertrag). To these can be added hiring of a work (Werkvertrag), because some work, such as the building of a house, is undertaken to be completed.

608. Obligations. Because the contract of location is similar to purchase-sale, for the right of using some thing or of receiving its fruits is bought and sold, those things which above were said concerning purchase-sale must also be applied to location. But in species these things must be noted:

1. The tenant is bound to repair damages which happen to the leased thing in these cases:

a. If he himself is their gravely culpable cause theologically;

b. If he himself by expressed agreement undertook upon himself any dangers whatsoever of the leased thing;

c. If by the sentence of the judge according to the laws in force he has been condemned to repair them.¹

2. Positive laws establish that in location of fields some part of the price of location be remitted when the field has in great part lacked fruits because of misfortune, for example, because of hail. The quantity of price to be remitted in this case is usually determined by law.²

Note. a. Since today in most parts of Europe tenants of fields, because of the sad conditions of agriculture, have fallen into a miserable lot, locators must be warned not to require too great a price of location, so that the tenant in ordinary circumstances can live honorably with his family from the fruit of his labor.

b. Yet as a norm which justice requires this cannot be admitted: that the tenant can take from the fruits of the fields those things which are required for the honorable support of himself and his family, and that the price of location is to be paid only from those things which remain over. For the price of location determined by just agreement must be paid, even if, because of accidental misfortune, the fruits of the fields are less. Nor is an agreement of this kind to be called unjust, that the same price be paid even if fewer fruits have grown, provided that a greater price is not required when the fruits grow more abundantly.³

¹ Cf. C.A. Section 1096 s.

² C.A. Section 1104 ss.

³ Cf. Genicot I, n. 644.

Accession is the increase of property either by natural production or by the union of one thing with another. When this takes place, legal and moral questions arise as to the owner of the increase. There are two leading maxims which settle such questions, Res fructificat domino and Accessorium sequitur principale, ‘The maxim Res fructificat domino seems to follow necessarily from the nature of property and ownership, for he who has the absolute ownership of something has a right to reap the benefit of all that it is, of all its activities, and of all that it produces. And so if the field is mine, I have a right to the grass, wood, or other commodity which it produces. If the tree is mine, I have a right to the fruit; if the mare is mine, I have a right to the foal; in the latter case the maxim Partus sequitur ventrem is also applied.

Jurists and theologians divide fruits into natural, industrial, mixed, and civil. Natural are such as grass, which grows without human labour and care; industrial are the product of industry, as a book or a new invention; mixed are partly natural, partly industrial, as a crop of wheat or potatoes; civil are such artificial fruits as rent from houses and land, interest from money lent. In all these cases the maxim may be applied, Res fructificat domino. In the case of mixed fruits, if the material belongs to the labourer the whole produce will belong to him; if the material, the field for example, belongs to someone else, then the owner of the field and the labourer whose labour aided in the production of the crop have each their right to a portion of the produce. Whether the crop be divided, or a money equivalent be paid to one or the other, is immaterial, With regard to improvements made on land or in houses, the general rule is that, Quidquid solo inaedificatur, plantatur, seritur, solo cedit. However, first of all by custom, and in modern times by statute, an outgoing tenant has a right to compensation for the improvements he has made on his holding, provided that certain conditions have been fulfilled.

A LEASE is a contract transferring a right to the possession and enjoyment of real property usually made in consideration of the payment of a periodical compensation called rent.

A lease may be for life, or for a fixed period, or from year to year, or at will or sufferance. It is provided by the statute of frauds that ‘‘all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to or out of, any messuages, manors, lands, tenements, or hereditaments made or created by livery and seisin only, or by parole, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making any such parole leases or estates, or any former law or usage to the contrary notwithstanding. Except, nevertheless, all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term shall amount unto two third parts at least of the full improved value of the thing demised.”’ So that a lease by parole can only be made when the period does not exceed three years and the rent is at least two-thirds of the value. Furthermore, by the 8 & g Victoria, c. 106, every lease required by law to be in writing, and assignments of leases, are void at law unless made by deed. It is also provided by the Statute of Frauds that any agreement for a lease for however short a period must be in writing.

Although a lease, which by law should be in writing and is not, has by the statute the effect of only an estate at will, yet if a tenant enters and pays rent under such a lease, it may serve as a tenancy from year to year. If a tenant holds over after the expiration of his lease and continues to pay a yearly rent, he will hold under the terms of the lease as far as they are applicable to the new tenancy from year to year.

A yearly tenant must give and is entitled to a reasonable notice to quit, which has been held to be six months, ending at the period at which his tenancy commenced. A year’s notice is required when the tenancy is held under the Agricultural Holdings Act, 1883. To determine a monthly or a weekly tenancy a notice of a month or a week respectively should be given.

The tenant is always bound to use the premises leased to him in a tenantlike or husbandlike manner. In leases for a longer period it is usual to covenant as to whether repairs shall be done by landlord or by tenant. In tenancies from year to year the tenant is under no obligation to make substantial repairs in the absence of express agreement to that effect, nor is he bound to make good accidental damage by fire or other cause, nor ordinary wear and tear; but he must repair losses caused by his own negligence, and he must keep the premises wind and water tight. The general rule is that all rates and taxes are to be paid by the tenant; property tax, land tax, and tithes are exceptions, and are paid by the landlord. Fixtures, or things affixed to the freehold by the tenant, at common law became the property of the landlord, according to the maxim, quidquid plantatur solo, solo cedit. The common law rule, however, has been much mitigated, and now, in general, fixtures erected for the purposes of trade, ornament, or domestic use, and also agricultural fixtures, may be removed by a tenant. In certain cases, before doing this, due notice must be given to the landlord.

The landlord has a right to enter and seize goods belonging to the tenant in payment of rent which is due to him but which has not been paid.

I. Object. The object of the contract is especially constituted by the use of houses and fields, although the use of other things also can be let and hired.

II. Form. With attention paid to natural law, it can be entered into both orally and in writing; as to what, with attention paid to civil law, is required for the form, and likewise for the proof of the contract, see the law of one's country.

III. Obligations of the lessor. 1. The lessor should not ask a price which does not correspond to what he himself grants to the lessee; almost as was said concerning the price to be observed in a thing to be sold (p. 601).

2. The lessor should manifest defects which impede or diminish the use of the thing, according to what was said concerning the manifestation of defects which adhere to a thing to be sold (n. 898).

3. If a tenant farmer, that is, a lessee of fields, has suffered a great loss of fruits either by a fortuitous event or because of storms, the lessor should from equity remit part of the rent, unless either the lessee expressly took the risk upon himself, or the sterility can be compensated by the abundance of the preceding or subsequent year¹ (St. Alphonsus, III, 860).

¹ Thus formerly from law 8, Code de locato, and from chapter Propter sterilitatem, same title.

IV. Obligations of the lessee. It is sufficient - for many things are clear - to note these things:

1. He is bound to use the thing only for that end for which it was let.

2. To what extent he ought to bear the expenses of repairs is to be gathered from the contract, civil law, or custom; the same is to be said about subletting the thing to another.

3. He is held for damages inflicted on the thing by his fault, but not for others. If merely juridical fault was present, he is not held before the sentence of a judge.

Forms of Contract.—The chief forms of contract are the following:

(a) gratuitous contracts, which are those that confer advantage on only one of the contractants, or those in which no payment or compensation for his acts or goods is made to one party by the other party. They include unilateral contracts, which produce obligation on one side only (e.g., a promise, gift, testament), and bilateral contracts, which produce obligation on both sides. The bilateral contracts are also known as bailments, or understandings whereby a thing or business is transferred from one person to another in trust, on condition that a return will be made to the owner, They include the following contracts: loans, in which return must be made of the identical things borrowed (commodatum), or of a thing similar in kind (mutuum); deposit, in which a thing must be returned after safekeeping (depositum); an agency, in which one conducts the business of another with the obligation of making returns, either from express contract (mandatum) or from imputed agreement (negotiorum gestio). In commodatum and mutuum the advantage is had by the bailee, in the other three by the bailor;

(b) onerous contracts of certain event, which are those that confer an advantage on both parties, and in which the thing agreed on is certain and definite. They include contracts in which one party transfers ownership to the other (e.g., buying and selling, barter, loan at interest, contracts for annuities, stocks and bonds) or useful dominion (e.g., lease of property, contractor’s agreement, hire of labor), and contracts in which both parties transfer rights to a moral person of which they are the members (partnership);

(c) onerous contracts of uncertain event, which are those that confer advantage on both parties, but in which the thing agreed on is contingent and uncertain. Examples are insurance, wager, gaming contracts, lottery, and stock market speculation;

(d) subsidiary contracts, which are those that are made in order to give security to principal contracts to which they are annexed or for whose sake they are made. Such are guaranty and surety, pledge and pawn, and mortgage.

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.

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?

920. • 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.

921. 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.

922. • 1. 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.

923. • 1. 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.

924. 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.

925. • 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.

926. • 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.

Resp. 2. Concerning a messenger there is a twofold probable opinion. - Recall what was said above, n. 757. - See Cases, n. 973 and following.

778. Lease-hire in general is an onerous contract by which the use of a thing, or certain works, is promised for a certain price. And thus it is distinguished from loan for use, by which the use of a thing is granted to another gratuitously.

³ Lugo, disp. XXIX; Lessius, cap. XXIV; Billuart, diss. VI, art. 1; St. Alphonsus, n. 857-864; Carriere, II, n. 766-821; Marres, lib. IV, cap. 9, n. 331-365; Ball. P., n. 856-882; Lehmk., n. 1125-1127; Noldin, n. 597-602.

From the very notion there is a twofold species of lease: lease of things and lease of works; the latter is likewise twofold: contract of labor, concerning which in the following paragraph, and undertaking of a work (contrat d'entreprise), concerning which we shall treat here.

779. Lease of things is a contract by which someone obligates himself to furnish to another the enjoyment of some thing, for some time, for a certain price. There are several species of this lease: lease of houses and furniture (bail a loyer), - lease of rural goods (bail a ferme), - lease of animals (bail a cheptel); concerning these the various Codes must be consulted.¹ Here it will suffice to set forth general principles, while noting, however, that special stipulations can be added by the contracting parties themselves.

¹ For France, Cod. civ., art. 1708-1830, in Supplem., p. 155*.

780. 1. Obligations of the lessor (bailleur, proprietor). (A) He must hand over the thing to the lessee (preneur, tenant, farmer), - and indeed at the established time, so that he is held to repair damage arising from culpable delay, and also in a good state, so that it is apt for the use to which it is destined.

(B) He must preserve the thing in that state in which it remains apt for the use for which it was leased, and accordingly must complete the greater repairs necessary for conservation of the thing, but not the smaller ones which must be furnished by the lessee; but which repairs are smaller or greater is determined from the Codes and the usage of places; whence he cannot change the form of the leased thing, nor do anything else from which the enjoyment of the lessee is diminished.

(C) He must furnish tranquil enjoyment of the thing, and therefore render the lessee unharmed against hidden vices which impede the use of the leased thing, - and protect him against eviction or disturbance of right brought by a third party.

781. 2. Obligations of the lessee. (A) He must use the leased thing as a good father of a family, and indeed only for that use for which it was leased, expressly or implicitly, insofar as it can legitimately be presumed from the circumstances; if he abuses the leased thing, he is held to reparation of the damage brought, and moreover the contract can be rescinded. - He can sublease the thing, or cede the lease itself to another, for the same use, unless however this faculty has been forbidden by a special pact.

(B) He is held to pay the agreed rent at the established time, and in the manner fixed beforehand, or according to the custom in force in the region;² otherwise, the lessor has the right to keep certain movable things of the lessee so that he may be made secure concerning payment.

² Farmers leasing fields, when crops are less abundant, or fruits are sold only at a cheaper price, are not immediately and without mercy to be compelled to pay the whole price, under penalty of ejection; but equity and charity counsel that either something be remitted from the price of lease or a delay be granted to them so that they can pay the price without falling into a miserable lot. To the matter Lugo, l. c., n. 40: "It has been introduced from equity and kindness, that because of supervening sterility without the fault of the lessee... when no fruits at all are gathered, the lessee is freed altogether from paying the rent... But if the sterility does not remove all fruits, yet nevertheless is great and notable, the rent is diminished proportionately; but if it is slight, nothing is remitted." Cod. civ., art. 1769.

(C) When the time of the lease has ended, he must return the leased thing in that state in which it was handed over, yet without being held to repair those things which have collapsed or been made worse by age and legitimate use. - If some damage has been brought, whether by the lessee himself, or by domestics or table-companions who are under his care, or by sublessees, he must compensate it, unless he proves that it happened without his fault. By natural law, he must at once repair damages arising from theological fault, but those which arise from juridical fault only after the sentence of the judge.

By French law, if a house has perished by fire, all tenants living in this house must pay a part of the damage proportionate to the price of the lease, unless they prove that the fire was kindled in another's room, or could not have been kindled in their place; this disposition indeed, as contrary to natural equity, does not oblige in conscience those who know very well that the fire was not kindled by their fault, at least juridical, or by the fault of those whose care they have.¹

¹ Cf. C. civ., art. 1734 and Law of Jan. 5, 1883. - On the various species of leases, baux a loyer, baux a ferme, baux a cheptel, see C. civ., art. 1752-1778, Sup., p. 159*; 1800-1830; Planiol, II, n. 1666-1822.

2. A lease (locatio et conductio) is a contract by which a right to the possession or enjoyment of real property is transferred for a definite period to another, in consideration of a periodical compensation called rent (locarium).¹ By real property in this connection is meant property that is not consumed in the first use, but continues to render repeated services. Such commodities have a value over and above that of first use. The value of a house, for instance, is greater than the value of the lease of it for a year, because the house will continue to render services and be valuable after the lease expires.² A lease may have for its object: houses, land, animals, labor or services. If it is for more than a year, it must be in writing.³ a) The lessor or landlord (locator) may not lease his property for immoral or unlawful purposes. A lease for such a purpose is void. He must see to it that the property is in good condition when it is handed over to the lessee, or reveal its defects, and he must not demand it back before the time agreed upon; he must not raise the rent arbitrarily ("rent profiteering"); he must not abuse the ignorance or need of the lessee, and in case of necessity (for instance, crop failure or hail storms) should remit the rent either entirely or in part. b) The lessee is bound to take proper care of the property in conformity with his contract, to keep it in good repair, to pay the rent promptly when it is due, return the property intact to the owner after the lease has expired, and make restitution if damage has been done to it through his fault.⁴ c) A lease is terminated by the destruction of its object, by the expiration of the contract, by mutual consent, or by the death of one of the contracting parties.

¹ J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 863: "A lease is a contract by which the use or fruit of a thing or the labor of a person is received by one and granted by another for a certain price for a time. He who hands over a thing for the use or benefit of another is called the lessor; the other is called the lessee or hirer."

² Slater, A Manual of Moral Theol., Vol. I, p. 513.

³ A. S. Bolles, Putnam's Handy Law Book, p. 152.—Gury, l. c.: "Hence various species of lease are enumerated: 1. lease of buildings; 2. of fields; 3. of animals; 4. of labor and service. To the contract of lease there are in some measure akin emphyteusis [Rom. law: A perpetual lease of lands and tenement in consideration of annual rent and improvement thereon] or a fief [feud; land held of a superior on condition of rendering him service]. ... Yet emphyteusis and a fief differ from lease, because they can be established only in immovable property and for no less than ten years."

⁴ Note that, in America, if the lease is for a house or other building, and no specific agreement was made relieving the lessee, he is liable under the common law (which has, however, been changed in several States), for the rent of the building if it burns down, just the same as if he were still the occupier. (Cfr. A. S. Bolles, Putnam's Handy Law Book for the Layman, pp. 151 sq.).—Gury, Comp. Theol. Mor., I, n. 864–869.

A yearly tenant must give and is entitled to a reasonable notice to quit, which according to the common law should be given by one to the other party six calendar months before the expiration of the current period.

If a lease runs beyond the statutory period, it is not absolutely void, but continues during the joint wills of both parties, and may therefore cease at the will of either. If the landlord wishes to terminate it, he must give the tenant notice to quit. If he disregards the law and takes immediate possession, he is a trespasser.

When the terms of a lease are in doubt, they are to be construed in favor of the tenant.

A lease must clearly describe the premises, and a defective description cannot be cured by outside evidence. Any language will suffice that shows the intention of the parties.

To make a valid lease, the parties must, of course, be competent. A lease by a minor is not per se void, but he may cancel it by some positive act.

If a blank form is used in making a lease, and the printed portions do not agree with the written insertions, the written matter is held to express the intention of the parties.

A lessee can assign or sublet his lease, unless this is forbidden, as it often is by the lessor, without his consent. If the lessee dies, his executor or administrator can assign the remainder of the term.

As the lessee may assign or sublet, so may the lessor part with his interest in the leased property.⁵

⁵ Bolles, op. cit., pp. 152 sqq.

Fixtures or things attached to the freehold by the tenant at common law become the property of the landlord, according to the maxim, "quidquid plantatur solo, solo cedit." The common law rule, however, has been greatly mitigated and now, in general, fixtures erected for purposes of trade, ornament, or domestic use, and also agricultural fixtures, may be removed by the tenant. In certain cases, due notice must be given to the landlord before doing this. A tenant can make no permanent alteration without his landlord's consent; should he do so, and thereby injure the premises, the landlord may recover damages, or, if such an alteration is feared or threatened, he may prevent it by obtaining an injunction.

If the landlord has agreed to make repairs, he must keep the property in good condition. But if he fails to keep his agreement to repair, the tenant is not excused from paying his rent or justified in leaving the premises. His remedy is to sue the landlord for the damages or injury done to himself.⁶

⁶ Ibid., pp. 158, 159.

Definition. Lease-hire is a consensual, synallagmatic contract by which someone, for a certain price, promises certain utilities of a thing or of a person for a certain time.

It is perfected by consent alone, although, in the external forum, proof of it is not always permitted to be made in any manner whatever.

There is distinguished the lease of things and the hiring of works or of services. We use these latter words, by which we at once designate two species, lest, which today would be odious, we should be forced to place beside the lease of things a lease of persons.

I. Notion. Lease of a thing, whether immovable or movable, can be called a sale of utility; to which the rules of the sale of things are adapted, if you except certain sanctions of positive law.

II. Mutual Obligations. The lessor ought to effect that the lessee can peacefully use the leased thing, during the whole time of the lease, in a good state, with the utility and advantages which it had when the agreement was made. He guarantees against eviction and defects, at least hidden ones. Lesser repairs are usually incumbent on the lessee, greater ones on the lessor.

The lessee ought to use the leased thing after the manner of a good father of a family, and for that use for which it was destined. He is responsible for custody of the thing. He ought to pay the price at his time and to stand by the agreements. By the destruction of the thing, at least if the whole has perished, but not, of itself, by the death of the parties, the contract is dissolved. But what positive laws establish must be observed.

III. Various things concerning this contract are usefully attended to by the moral theologian.

1. Although lease of a thing, in Italian and French law, confers no right in the thing, nevertheless, by the disposition of the law, it gives to the lessee a right of use independent of the person into whose ownership the thing may have come. That is, successors, even those who succeed the parties by a particular title, ought to carry out the agreement previously made.

2. Concerning the time for which a thing is leased, let these things be noted. Both by canon law and by more than one civil law, a lease beyond nine years exceeds simple administration (cf. can. 1541, §2, 3°; art. 1572 of the Italian Code). - Laws not rarely establish a maximum time within which either certain things or personal services may be promised.

Thus, in Italian law, agreements concerning the cultivation of uncultivated fields are permitted to be made for a hundred years; but immovable things, of themselves, cannot be leased for a time greater than thirty years. Houses, however, can be leased for the life of the lessee and for two years besides. - But a lease for nine years is not rarely made in such a way that in the third and sixth year it becomes open to the parties to withdraw from the contract, provided that the intention has been intimated in good time. Otherwise, when the day arrives, the contract continues by the thing itself. - If no day has been established, the nature of the things and customs will have to be observed, so that it may become known to what term the lease is extended. A stipulation of tacit renewal of the contract, if a contrary will has not been manifested some time before the day to which it runs, is altogether admitted. Indeed, if the lessee has not been warned about leaving the thing, and peacefully continues the use, a new lease will be judged to have been tacitly made, under the same laws as before, not however of itself for the same time, but rather as if without a day. Thus it is established in Italian law, arts. 1592, 1593.

Positive laws must be consulted concerning the faculty which the lessor has of leasing the leased thing to another; and concerning the taxes which are to be borne by each party.

3. A tenant-farmer or tenant cannot, at his pleasure, change the customary destination of an immovable thing: as if he should wish to convert an estate into a field, or a shop into a private house. But the consent of each party is necessary.

4. If the lessee himself, with the owner consenting, has begun a business, and thus by degrees has procured that buyers of certain things should come there, present-day laws incline toward this: when, on the day arriving, he departs, he obtains a right to a certain compensation for the value which has accrued to the leased thing by his industry. That right is called recognition of commercial property, which we compare with so-called literary and artistic property.

5. Since it now happens rather often that several tenants inhabit various parts of the same house, it comes about that, by a presumption sometimes rather arbitrary, the law defines the obligation of bearing the case of fire as common to the tenants. Thus in Italian and French law (cf. Italian Code, arts. 1589, 1590; French Code, arts. 1733, 1734, as it was corrected on 5 Jan. 1883).

If the house has been insured, the one who insured the thing and made the owner indemnified succeeds to his rights against those who gave cause to the damage.

6. Several laws are accustomed to grant to the owner of an immovable thing a legal pledge in the movable goods which the tenant has brought into the leased thing. Thus it comes about that the seller of merchandise cannot, without the consent of the owner, recover the merchandise which he had committed to the shopkeeper to be sold.

7. Since the lease of a field contains something of chance, no remission of price would be owed to the lessee from strict justice on account of unusual sterility; nevertheless laws are accustomed to grant some remission from equity. Cf. arts. 1769, 1770 of the French Code.

Frequent in Italy is the use of leasing rural estates under this law, that the fruits are divided between the lessor and the lessee (mezzadria, masseria, colonia). On this agreement cf. Code, arts. 1647-1661. Special agreements also are customarily made concerning the leasing of herds of large or small cattle (locazione a soccida o soccio). Cf. arts. 1665-1696.

8. If increases of things exceed every expectation, so that the price of the lease becomes altogether, and indeed by a great amount, below the just price, especially if it is paid in fictitious money, justice itself and the principles concerning the just price seem to require that the tenant-farmer increase in equitable proportion the rent promised by him.

9. Since in many states dwellings were found with difficulty, in more than one nation laws were passed which prevented lessors from expelling lessees, or from increasing prices beyond a certain amount. These laws had not a few detractors and reprovers, so that there was doubt about the very justice of the laws. Yet because these matters are usually very obscure and the laws were promulgated with a right intention, the tenants whom they favor can stand by them, nor does there seem to be present to the lessors a right of occult compensation. The presumption is in favor of the legislator. This is not destroyed by complaints.

305. Definition. Letting in general is an onerous contract by which the use or usufruct of some thing is granted to another for a certain price, or certain services or some work are promised. Therefore letting is distinguished from a loan for use, since the latter is a gratuitous contract. He who grants the use or usufruct is called the lessor; but he who pays the price is called the lessee.

Division. Objects of a threefold kind can be had in letting: a thing, e.g., a house or field;¹⁷⁹ a work, e.g., a house to be built;¹⁸⁰ labor, e.g., domestic service.¹⁸¹ In the second and third cases, however, such a contract is rather called hiring. Each is to be treated separately.

1. On the letting of things. A contract of letting is similar to purchase and sale. For the lessor sells, and the lessee buys, the use or usufruct of some thing, e.g., a house, estate, horse, etc. Consequently, almost the same principles hold concerning letting as were indicated above, n. 295, concerning purchase and sale. Furthermore, civil laws are wont to determine very precisely the rights and obligations both of the lessor and of the lessee; these laws, as ordinarily just, are to be obeyed in conscience.

2. On the letting of a work to be done. A work is here called whatever someone undertakes to do, e.g., to build a house, make a garment, and generally all those things which are called contract work, Akkordarbeiten, contrat d'entreprise. This can be done in a twofold manner, namely, so that the contractor¹⁸² furnishes either his labor alone or both labor and material. In the second case this letting is truly a certain species of sale. In the letting of a work to be done, the price is established for the completed work; nevertheless, if there is question of great works to be done, e.g., the construction of a railway bridge, then a partial price is not rarely paid already after partial completion of the work. Sometimes a work to be completed is publicly announced with all its conditions and circumstances; various contractors are invited to compete under the agreement that the thing to be made will be committed to the one who has promised to complete the work for the lower price. Sometimes, however, there is only a private agreement. But in either case the contractor is bound to make the thing in the manner and at the time stipulated. Especially, he must not employ cheaper material or complete the work with less diligence; otherwise he is bound to restitution if he has caused notable damage to the person who commissioned the work. Since this contract is in some measure aleatory, the contractor is bound to fulfill all the conditions entered into even if he does not obtain a suitable price. If, however, unforeseen cases occur unexpectedly which render the work to be completed much more difficult, e.g., earthquakes, lightning, an epidemic, etc., then it is not only suitable but also just that a new contract be entered into. For the rest, the statutes of civil law are to be observed.¹⁸³

¹⁷⁹ Lease or tenancy contract (Mietvertrag, Pachtvertrag, loyer, bail).

¹⁸⁰ Contract for work (Werkvertrag).

¹⁸¹ Employment or service contract (Arbeitsvertrag, Dienstvertrag).

¹⁸² Contractor (entrepreneur, Unternehmer).

¹⁸³ Cf. German Civil Code § 631ff.; French Civil Code art. 1779ff.; Swiss Code of Obligations art. 363ff.

306. 3. On the hiring of labor. This hiring is also called hiring or a contract of labor, and it is a contract by which one person obliges himself to furnish certain labor, while another obliges himself to give a determinate wage for this labor. Therefore the object of this contract is personal labor, or rather working power,¹⁸⁴ which one leases to another for a determinate time. To this pertains the hiring of servants, workers, physicians, etc.

Jurists and economists do not agree concerning the nature and character of this contract. a) Some maintain that it is a true letting, namely, of working power; b) others think it is a sale by which the worker sells his labor as merchandise for a determinate price; c) others teach that a contract of labor is nothing other than a contract of partnership, in which the employer contributes his "capital" and the worker his labor toward completing a common work and consequently also toward dividing the profit received from the work. This last opinion, considered at first sight, seems the best; but in reality it is only a utopia which cannot be reduced to practice. For employers contribute not only money, but also intelligence, at least commonly superior intelligence, and many labors. Furthermore, they are compelled to expose their own fortune to the greatest dangers and often labor for a sufficiently long time without any emolument, indeed with loss. On the contrary, workers incur no danger and must receive a daily wage. It would therefore be inequitable and contrary to the nature of a contract of partnership if in prosperous affairs the workers had a proportionate part of the profit, but in adverse affairs the employer alone had to bear the whole loss. d) Finally, others teach that the contract of labor is reduced to an innominate contract: I do that you may give, and I give that you may do.

Amid so great a diversity of opinions, the doctrine of Leo XIII¹⁸⁵ is to be retained as a principle: "Labor therefore has, as it were, two characteristics implanted in man by nature, namely, that it be personal, because the active force inheres in the person, and is altogether proper to him by whom it is exercised and for whose utility it is naturally fitted. Secondly, that it be necessary, because the fruit of labor is needed by man for preserving life; but nature herself, to which obedience is most greatly due, commands that life be preserved." From these words it clearly appears that labor cannot be regarded solely as merchandise without any relation to the person, but is to be considered as a legitimate, and often the only, means by which the worker can preserve life for himself and his own. If these things are kept before the eyes, the question concerning the just wage can more easily be resolved.

¹⁸⁴ Use of working power (Nutzung der Arbeitskraft).

¹⁸⁵ Encyclical Rerum novarum, May 15, 1891.

307. The obligations of employers arise both from justice and from charity.

From justice employers are bound:

1. To pay an equitable wage at the appointed time. Hence Leo XIII says:¹⁸⁶ "To defraud anyone of the wage due is a great crime which calls down avenging wrath from heaven by its cry: 'Behold the hire of the laborers ... which has been kept back by you crieth; and the cry of them hath entered into the ears of the Lord of Sabaoth.'"¹⁸⁷ What wage is just, however, will be said below, n. 310.

2. To respect workers as endowed with human dignity and not to regard them as cheap slaves, as was done by the pagans, Cicero bearing witness and saying: "Illiberal and sordid are the gains of all hired laborers and of all those whose services, not whose arts, are purchased."¹⁸⁸ Hence from justice the employer is bound to grant sufficient time so that the worker can live as a man, namely, by devoting himself to religious duties, having care for domestic affairs, etc.

3. Likewise, "not to impose more work than the strength [of the workers] can bear, nor work of a kind which is unsuited to age and sex." For "to demand so much work that the mind becomes dulled by excessive labor and at the same time the body succumbs to exhaustion is permitted neither by justice nor by humanity." Thus Leo XIII.¹⁸⁹ Especially, excessively grave labors are not to be imposed upon women and children. Happily, in several states there exist most salutary laws limiting the labor of women and children, and likewise generally the time and mode of labor.¹⁹⁰ Some of these laws, however, are unsuitable, as notably is that law which establishes indiscriminately that daily labor is never to extend beyond eight hours. For the time of labor is not to be measured indiscriminately, but according to the conditions of the labor, the laborer, necessity, etc.

From charity employers are bound:

1. To treat workers kindly and assist them in necessities. Therefore they ought to give alms principally to their own workers.

2. To favor institutions and decrees by which the condition of workers is justly improved, e.g., by opening schools for their greater instruction, founding baths and other institutions of health, etc. Therefore an employer cannot licitly oppose in parliaments laws which are justly proposed in favor of workers.

¹⁸⁶ L.c.

¹⁸⁷ James 5:4.

¹⁸⁸ De offic. l. 1, 42.

¹⁸⁹ L.c. Cf. Code of Canon Law, canon 1524.

¹⁹⁰ Legislation for the protection of workers (Arbeiterschutzgesetzgebung).

308. Leo XIII¹⁹¹ briefly and pregnantly embraces the obligations of workers in these words:

1. "That which was freely and equitably agreed concerning labor is to be rendered wholly and faithfully." Hence workers sin who labor negligently, who waste time uselessly, or who otherwise violate a contract of labor freely and justly entered into. The gravity of the sin and of the obligation of restoring depends upon the gravity of the damage unjustly caused.

2. "In no way to injure property." Consequently, workers sin who use prodigally the materials delivered to them, who destroy machines, who produce defective merchandise, etc.

3. "Not to violate the person of the employers," i.e., to inflict no injury upon employers, whether by calumniating, harming, saddening, etc.

4. "In the very defense of their own interests to abstain from violence, never to introduce sedition, and not to associate with wicked men." By these words an unjust strike is certainly prohibited, which occurs, e.g., by ceasing from work when a just hiring has not yet ended, or by demanding an excessive wage or other undue conditions. But it is not lawful to deduce from this that every strike¹⁹² made by agreement is intrinsically evil.

¹⁹¹ L.c.

¹⁹² Commonly, cessation of labor, strike (Arbeitseinstellung, Streik, strike, grève, sciopero).

309. On the moral character of a strike. A strike, as we now speak of it, is the common withdrawal by agreement of many workers in order to obtain certain advantages from employers. A defensive and an ameliorative strike are wont to be distinguished. A defensive strike is undertaken by workers who are unjustly oppressed by employers, e.g., when a truly insufficient wage is paid, when insufficient provision is made for the health or morality of the workers, etc. An ameliorative strike is made by workers to obtain a greater wage or shorter and easier labor, although the wage hitherto received is not altogether insufficient nor the labor excessive.

All concede that a defensive strike is lawful, provided no other means is at hand for lawfully defending themselves against the injustices of the employer. The reason is evident. For it is lawful to defend oneself with the moderation of blameless defense.

An ameliorative strike is asserted by a few to be intrinsically illicit, since such a strike is: a) true sedition condemned by Leo XIII in the encyclical Rerum novarum; b) idle leisure, since a man is bound to labor when he can, according to the words: "In labors shalt thou eat of it [the earth] all the days of thy life";¹⁹³ c) after the manner of an illicit private monopoly. But since these reasons are not very convincing, theologians most commonly¹⁹⁴ teach that even an ameliorative strike is not intrinsically evil, such that it can never become lawful; but, on the contrary, that it is lawful provided: 1. it takes place when the hiring has legitimately ended; 2. a proportionately grave cause is present; 3. unjust means are not employed; 4. the end is honorable. Certainly a strike is wont to bring many grave damages, both material and moral; e.g., enormous material damages arise both for workers and for employers; workers ceasing from work often waste time in taverns, give themselves over to drunkenness and immoralities, and quarrels, acts of violence, enmities, and other inconveniences arise. Since these things are so, a strike is very rarely expedient; indeed, it is altogether illicit unless a grave and proportionate cause is present. First of all, an effort is to be made that the just demands of the workers, for if those demands are unjust the strike is intrinsically evil, be obtained by other means, e.g., persuasion, peaceful agreement, the intercession of the government, etc. But if these efforts have been vain, then the strike is to be considered as an economic war. Just as war between different nations is sometimes lawful, so also is this economic war. Certainly it is not lawful to declare war against another nation except to vindicate an injury received, and it is never lawful to wage war in order to obtain, e.g., a new province; but it is lawful to undertake a strike even to obtain some advantage not owed from strict justice. The reason for this difference is that in international war acts evil and unjust in themselves are committed, e.g., killing men and destroying the goods of another. On the contrary, in the economic war of a strike no act evil of itself is committed. For this is a condition without which a strike is not lawful. Indeed, to cease from works to which a man is not bound from justice, and earnestly to exhort, but not compel, associates that they too withdraw from work, are not acts evil in themselves but indifferent. But if from this cessation of work the employer suffers great material damage, this is only indirectly voluntary, which certainly can lawfully be permitted if a proportionately grave cause is present. From all these things it follows that even an ameliorative strike is in itself lawful, provided the conditions listed above are present and especially that unjust means are not employed. Unjust means would be, e.g., to inflict unjust fear or force upon the employer or associates by beating, persecuting, calumniating them, etc.

What has been said concerning a strike applies also, in the opposite direction, to a lockout of workers made by agreement.¹⁹⁵ For just as workers can declare economic war upon employers, so employers can wage war against workers. But a truly grave cause is required for making this lockout by agreement, i.e., a grave fault of the workers; because otherwise culpable cruelty is committed, since workers thus dismissed by agreement by different employers are thereafter admitted nowhere in the whole region to labor¹⁹⁶ and are compelled either to emigrate, to embrace another manner of life, or to beg.

Note. It is very rarely lawful to undertake a strike if the public good is thereby gravely injured, e.g., a strike of workers on a railway, from which the whole public communication is disturbed. Such a strike does not seem lawful unless it is truly defensive, namely, for repelling grave injustices. The reason is that the public good must prevail over the private good of the workers; and it is not lawful to injure the public good unless there is an intolerable injustice which otherwise private men must suffer.

¹⁹³ Gen. 3:17.

¹⁹⁴ Cf. J. Biederlack against Treitz and Tournelle in Zeitschrift für kath. Theol. (Innsbruck, 1910), 286ff., 610ff.

¹⁹⁵ Lockout of workers (Arbeiteraussperrung, lock-out).

¹⁹⁶ System of blacklists (System der schwarzen Listen).

310. On the just wage. Since a wage is, as it were, the price of labor, those things said above, n. 296ff., concerning the legal, common, and conventional price are also to be applied, with proportion observed, to the wage, which likewise can be legal, common, or conventional. Furthermore, there is distinguished the individual wage or pay, which suffices to furnish the worker alone with suitable food, clothing, and habitation; and the family or social wage, which furthermore suffices to support the worker's immediate family. The family wage is either absolute or relative. It is absolute when it suffices to support a family in ordinary circumstances, or when by it a thrifty and upright worker, without neglecting the aids which thrift and the moderate cooperation of wife and children can furnish, is able to provide decently for himself and his own. Such a family wage scarcely varies according to the number of children. For if the offspring is numerous, the expenses are certainly greater, but the income is also greater, since not only the husband but also the wife and children are supposed to labor and contribute to increasing the income of the family. The relative family wage is that which is required for supporting a family in extraordinary circumstances, e.g., if the wife is infirm and can in no way contribute to increasing the family's income, if the offspring is very numerous or oppressed by infirmities, if extraordinary expenses are necessary, etc.

311. Principle 1. At least an individual wage is owed to the worker from natural law itself, or from commutative justice.

Thus all Catholics teach, and it is evident from the encyclical Rerum novarum, which establishes "that the wage ought not to be unequal to the support of a worker who is indeed thrifty and of good morals." The reason is that the worker has a strict right to suitable sustenance according to the words: "The workman is worthy of his meat";¹⁹⁷ nor is he bound to beg. But a wage is often the only means to such suitable sustenance. Therefore the worker has a right to that wage.¹⁹⁸

Nevertheless, exceptions are found: 1. if provisions have become dearer and labor scarcer; 2. if the worker is worn out by infirmity or age. In these cases the employer is not bound, at least from justice, to give a perfect individual wage, because this would be an excessive burden. Then, however, the republic is bound to assist the workers.

The Liberals and Socialists oppose this Catholic doctrine. The former teach that the wage offered by the employer and accepted by the worker is to be regarded as just. This doctrine is false and opens a wide door to every tyranny. For workers, compelled by necessity, are not rarely induced to accept an unjust and insufficient wage. Socialists, on the contrary, teach that the entire fruit of labor is owed to workers, only the expenses for the material employed, for the use of instruments, and for the intellectual labor of employers being deducted. This doctrine is also false, as manifestly unjust toward employers, who besides intellectual labor also furnish capital and assume the risk.

¹⁹⁷ Matt. 10:10.

¹⁹⁸ Most worthy of note are the things which Cardinal Zigliara wrote by command of Leo XIII and which were transmitted by the Holy See to Cardinal Goossens of Mechelen shortly after the encyclical Rerum novarum was published: "Indeed, the work of the worker differs very greatly from merchandise, just as wage differs from price. For the work of the worker is work proceeding from human freedom, and therefore assumes the character of merit and of a right to a wage or reward; and it is consequently far nobler than merchandise and price, which are completed by exchange alone. Nevertheless, for the sake of clarity ... the work of the worker is considered as a certain merchandise, and the reward or wage as a certain price. Nor without reason: for although the work of the worker is something nobler than merchandise, nevertheless it retains the entire character of merchandise insofar as this bears an order to price. Therefore the reasoning of St. Thomas (S. theol. 2, 2, q. 114, a. 1) is most correct: 'For that is called a wage which is recompensed to someone in return for work and labor, as a certain price thereof. Hence, just as to render the 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 purchase and sale, so work and wage are for the common utility of the contracting parties, when, namely, one needs the thing or labor of the other and conversely. But that which is for common utility ought not to be a greater burden upon one than upon the other, and therefore a contract of justice ought to be instituted between employer and worker according to equality of the thing, which is the property of commutative justice (cf. S. theol. 2, 2, q. 57, a. 1). But if the criterion is sought by which that equality of the thing between the manual labor of the worker and the wage to be given by the employer must be established, we respond: That criterion is said in the encyclical to be sought from the immediate end of the worker, which imposes upon him the natural duty or necessity of laboring, namely, from food and clothing for suitably sustaining life, and to which manual labor is first and principally ordained (S. theol. 2, 2, q. 187, a. 3). Therefore, whenever the work is such that through it the worker satisfies his aforesaid natural duty of attaining the immediate end of his labor, but the wage is unequal to attaining this end, namely, suitable food and clothing, speaking in itself and considering the nature of things, there is an objective inequality between work and wage, and consequently an injury to commutative justice." Such an injury to commutative justice, from which many grave moral inconveniences arise, is certainly present in the system which is called the "sweating system" (Schwitzsystem durch Zwischenmeister), and which is employed not rarely against workers, men or women, who at home complete works assigned by some factory (Heimarbeit).

312. Principle 2. An absolute family wage is to be granted from justice, or at least from charity, in the normal state of industry to an adult and able worker.

It is said, 1. in the normal state; for when commercial industry is in a state of distress, then the workers also must tolerate distress. It is said, 2. to an adult and able worker; for if the worker through infirmity or old age is unable to labor perfectly, the employer is not bound, at least from justice, to pay as great a wage as the worker needs for himself and his family. For then the republic ought to furnish assistance. But when the wife or children of the family can earn something in a suitable manner, they are bound to contribute to the support of the family. The reason for the principle is that the most sacred law of nature compels no one to celibacy, but permits marriage to everyone capable of it.¹⁹⁹ Moreover, the father of a family is bound to procure sustenance for his wife and children born to him; and consequently, if he is a worker, he must acquire so great a wage that he can suitably satisfy this duty.

It is disputed among Catholics whether employers are bound from commutative, or at least legal, justice, or from charity alone, to give an absolute family wage. Therefore Cardinal Goossens of Mechelen proposed three doubts concerning this matter to the Holy See. Cardinal Zigliara, by command of the Supreme Pontiff, responded in a letter to Cardinal Goossens in 1891 that an employer who pays a wage sufficient for the support of the worker but unequal to supporting his family does not sin against justice, whose demands are fully satisfied when equality of wage and work is observed. Therefore in this case an employer who does not pay an absolute family wage indeed sins more or less against equity and filial or familial duty, but is not bound to restitution. There are, however, several authors who nevertheless defend an obligation of justice in this case.²⁰⁰

¹⁹⁹ Hence Leo XIII says in the encyclical Rerum novarum: "No human law can take away from man the natural and primordial right of marriage."

²⁰⁰ Cf. Tanquerey, De iust. n. 818, who treats the question of the hiring of workers excellently and at length. The responses to the doubts of Cardinal Goossens are given in full by Vermeersch, Quaest. de iust. n. 420ff.

1149. DEFINITION. Leasing is a contract by which someone gives his work or thing to another for use, for a certain wage. Hiring is the same contract on the part of the one accepting.

He who furnishes the use of the thing or his own work is called the lessor; but he who hands over the price, the lessee or hirer.

DIVISION. There is distinguished: 1. leasing of things, which is threefold, namely of buildings, of fields, and of animals; - 2. hiring of the work of a person, that is, of labor or service.

To this is referred, and is called hiring of work, the hiring of workers, artisans, carriers, guards, etc.; likewise the hiring of architects and of those who, after public denunciation, promised a work to be perfected, with determination of time, matter, form, and price.⁰⁴

1150. • PRINCIPLES. I. The obligations of the lessor are the same as those of the seller. Therefore the lessor is especially held concerning the following:

1. To preserve equity in the price of the lease and to hand over to the lessee a truly useful thing.

Therefore he must hand over the thing at the established time, and in such a state that it is apt for the end for which it was leased; likewise, to effect that the hirer can use or enjoy the thing through the whole time of the hiring, and therefore to sustain all expenses necessary for this, for example for roofs to be repaired, for taxes and public burdens, etc.

2. To render the hirer secure, both from vices of the thing and from juridic disturbance in the use of the thing during the time of lease.

We say from juridic disturbance, namely which could be inferred by a third party having right, but not that which would be made through violence. But if the use of the thing, on account of necessary repairs, is impeded for a notable time, for example beyond forty days, indemnity is owed to the hirer (III, 857).

1151. II. The lessee ought reasonably to use the thing leased and faithfully to pay the price. These things are clear of themselves.

1. He ought to use the thing leased as a good father of a family, that is, for the end alone of the lease.

Whence, if he consumes the thing for other uses, the lessor will be able to seek reparation of damage or rescission of the contract. Yet, a contrary pact being excluded or positive law not prohibiting,⁰⁵ he can sublease the thing to another who is equally suitable. To him it pertains to pay those modest and daily expenses which must be made for the preservation of the thing. - He must restore the thing in the state in which he received it, with the change arisen from age or greater force excepted. If it is not established by writing in what state the thing was at the time of the lease, it is presumed to have been in good state, unless the contrary is proved.

2. The lessee must pay the wage of the lease, or pension, and indeed at the established times.

But in the case of misfortune, for example of sterility on account of hail, it has been introduced from equity of right that something be remitted from the price of the lease of a field, and that the damage be undergone equally by lessor and lessee, unless an equitable compensation is given from the fruits perceived in other years.⁰⁶

Note. 1. The contract of lease is DISSOLVED: a) when the time of hiring has been completed. If the time was in no way determined, the lease will be able to cease at the discretion of one contracting party, provided the other is warned at an opportune time. b) By the destruction of the thing leased. c) By non-execution of the agreements. d) By mutual consent, with the right of a third party preserved, for example of a subhirer.

2. But a lease entered upon by an authentic act is not dissolved by the death of the contracting parties, but passes to heirs. If the lessor has donated or sold the thing leased, or wishes to occupy it himself, he cannot, from new Law, expel the lessee; but the constituted term must be awaited.⁰⁷ Otherwise in Roman Law.

Encyclical Rerum novarum (middle version); Vermeersch, de Just., n. 386; Lehmkuhl, I, 1344; Noldin, II, 609; Genicot, I, 645; Schindler, II, p. 663; Tanquerey, II, 786; Garriguet, Contr. du travail; H. Pesch, Lehrb. der Nationaloeconomie, III, p. 207-219; Godts, de Salario familiali; Schrijwers, Man. d'Econ. pol., P. IV; De Gryse, Biederlack, Pottier, and others.

1152. • DEFINITION. Hiring of work, or hiring of workers, is a contract in which a just price is paid for certain labor.

It is said 1. For certain labor. For the object of this contract is not the thing produced, but the labor to be furnished, therefore the operative force itself, the very strength of the worker: therefore something which cannot be separated from the worker, and which always remains clothed with human dignity.

Hence you will deduce: a) The contract of labor is not a mere purchase-sale, because for establishing equality between the work furnished and the just price, for taxing human labor, we cannot use the same norms as for common wares and things merely negotiatory.

b) The contract of labor is not a contract of partnership, as if the master contributes his capital, but the worker his work, to a work to be perfected commonly, the profit afterwards to be divided.

2. A just price is paid: namely such a price as truly responds both to the work furnished on the part of the worker and to the end which the worker necessarily intends in leasing his strength.

ORDER OF THINGS TO BE SAID. In establishing rules concerning JUST PRICE, authors go into diverse opinions. Therefore fitting distinctions must be premised, and afterwards principles established, whether with respect to hirers of workers or with respect to the workers themselves.

How many kinds of wage are given? There is given 1. Individual wage, namely that which suffices for feeding one man on that day, and furnishes him the necessities for suitable support, provided he is frugal and well-moraled.

Individual wage can be subdistinguished into the lowest, commonly sufficient for feeding one man; and the highest, which furnishes to a man not only necessities and conveniences, but also as it were restores the expenses which he had for learning the art, and forestalls future damages.

There is given 2. Family wage, namely that which suffices for feeding a family,⁰⁸ as it is ordinarily constituted.

It is subdistinguished into absolute and relative family wage.

a) Absolute is present if, in ordinary adjuncts, the same sufficient family wage is paid to the father of a family.

b) Relative is had if that wage which of itself commonly suffices is increased according to the number of children and the weight of necessities.

1153. PRINCIPLES. I. The hirer of workers is held from justice to allot to them the lowest individual wage. The reason is that only the lowest individual wage procures equality between labor and wage. For the labor of the worker is: 1. labor of a human person, whence a thing much nobler than merely negotiatory things; 2. labor necessary for a life suitable to a man, labor therefore which cannot be estimated below a wage sufficient for the necessities of life; 3. finally labor by which the strengths of the worker are consumed for the utility of the master, whence there arises a right to a wage which is apt for restoring the strengths of a well-moraled man.

From these things conclude: a) The same labor standing, whether considered in itself or in adjuncts, the same lowest individual wage is owed both to men and to women (cf. Rosler, Frauenfrage, p. 113). So that it may be just, it must suffice also to

the needs of the seventh day. Ordinarily, however, feminine labor is less, on account of weakness of body, necessary interruptions, etc.; whence it is diminished without injustice (Noldin, II, 612).

b) This wage is owed to workers antecedently to an express agreement, according to common estimation; it will be able to be exacted by any worker at all.

c) Indeed, without injustice the highest individual wage will be able to be exacted; for no more is exacted than is expended for the advantage of the master. If special dangers of the work are present, special expenses for acquiring skill in the work, that must be paid to the worker.

d) The system of those is to be rejected who think that any wage whatever is just into which the worker has consented; for often, conquered by necessity alone, the worker consents to a payment below the just one.

A great question is: Whether the hirer of workers is bound from justice to pay to the worker who is called to marriage an absolute family wage. The affirmative opinion pleases us much. The reason is that (as Leo XIII says in the cited Encyclical) it is a most holy law of nature that the father of a family protect, by food and by every cultivation, those whom he himself has procreated; and the same is derived thither from nature, that he should wish to acquire and prepare for his children those things by which they may be able, in the doubtful course of life, to defend themselves from miserable fortune.

Therefore the labor of the married worker, which is the truly ordinary means for fulfilling this office and as it were the one capital through which he is rendered apt for satisfying this duty imposed by nature itself, this labor, we say, obtains in common estimation a price which can be compensated only by the payment of an absolute family wage. Cf., besides the authors already cited, Manning, La quest. ouvr.; Collat. Brug., IV, 1901; Nicotra, Quest. du Salaire; Liberatore, Economie politique, p. 246; Marres, Perin, etc.

Nevertheless, the contrary opinion, which denies, we cannot reject. Thus it argues. Does the equality which commutative justice intends to establish truly require that more be owed to a married worker? The necessity of feeding and providing for oneself is intrinsic and absolute to labor; but the necessity of feeding a family is rather extrinsic and hypothetical to labor, if namely a man is joined in marriage. From this it follows that the price of labor, which indeed ought rather to be considered according to itself, does not vary in itself and does not confer other rights if the worker is married. This seems to be admitted the less because, if extrinsic and hypothetical elements had to be considered in the estimation of labor, even a relative family wage would have to be paid from justice, if the family became more numerous (cf. Genicot, I, 647; De Gryse, Contr. cond., p. 45).

Whence some say that the absolute family wage is owed from charity alone; but others have recourse to legal or social justice, in order to impose on masters the obligation of paying such a wage to married workers (cf., besides those just cited, Antoine, p. 611). But they add that the absolute family wage, although of itself and initially owed from legal justice only, obliges from strict justice always and in such a region when it has truly been brought into use. For then, as regards the estimation of the labor of workers, it becomes a vulgar price.

II. The hirer of workers sometimes does not act unjustly if he pays a wage lower than the aforesaid. The reason is that the general norm, according to which the price of labor is estimated, often admits change by reason of circumstances.

Therefore the wage would justly be diminished: 1. If the worker were not yet apt for ordinary labor, or had been accepted from mercy alone, unequal to ordinary labor. 2. If in such a region labor commonly produced fruits less than just; a fortiori, if labor, prolonged with hope of better fortune, actually turned only to the detriment of the master.

Note. Yet from this do not conclude that the master acts justly who, about to begin some industry, meanwhile would give small wages until he himself has paid the capital taken from others.

III. The hirer of workers assumes other obligations upon himself. And indeed: 1. before the completed time of hiring he cannot withdraw from the contract without a legitimate cause; 2. he must take care that in workshops the workers do not suffer grave dangers against good morals or against life and the health of the body; whence he should faithfully apply the precautions prescribed by law; 3. for the rest of the body and sanctification of the soul necessary time should be conceded. Cf. the cited Encyclical; Vermeersch, o. c., n. 460; Riviere, Vingt ans de vie sociale, p. 78; Harmel, Catechisme du Patron; Kurschner, Lex. d. deutsch. R., v. Arbeit; Gopfert, Arbeiter-aussperung (ap. Linz. Quart. Schr., 1908, p. 334).

IV. The worker, from justice, must fulfill the obligations of the contract.⁰¹ The same is valid for the lessor of works.

Therefore the worker is held: 1. to furnish labor faithfully according to the agreement, so that, if from lack of skill, or negligence, or his own fault he has not performed what he promised, he is held proportionately to remit the wage, or to restore what has already been accepted; 2. not to depart, without a just cause, from service before the time of hiring is finished (but see n. 1154); and if from such departure or in another way, for example by completing the work faultily, he has brought damage upon the master, to compensate it. Recall the things said n. 708, 1140, concerning servants, and n. 1036, Question 2, concerning drivers, etc.

Note. a) From the natural law. Workers act illicitly who give some sum of money to inspectors, to corrupt them, so that a faulty completion of the work or cheaper material may be approved by them. But they would not act illicitly if they gave money for turning aside their unjust vexation. See also n. 1135.

b) From natural equity. Equity demands that, in the case of an unusual misfortune, compensation be conceded to architects or others who have taken upon themselves a work to be completed. Yet this compensation is not owed if the redeemer of the work erred in computing the expenses (Aertnys, l. III, 506; Genicot, I, 650).

c) From Positive Law.⁰² No one can promise his work except for a determined time or for a determined work. An artisan, if he has not finished the work, is held concerning a greater or lesser fault, according as he furnished both material and labor, or labor alone.

(operistitium, sciopero, greve, huelga, Streick, strike).

On account of the importance of the question, it is useful here to note what must be held concerning operistitium.

1154. PRINCIPLE. Operistitium theoretically is licit, if the due conditions are present. The conditions are: 1. that it be opposed to justice neither in the matter nor in the mode; 2. that there be a just and grave cause; 3. that no other way be available for obtaining the end.

It is said 1. That it not be opposed to justice, neither in the matter nor in the mode. But a) IN THE MATTER a cessation of labor is unjust if there has preceded a valid contract concerning work to be furnished for a stated time and it has not been rendered void, as is plain from the things said n. 1056.

Now, the contract can be invalid either from defect of free consent, for example if the workers are morally compelled to lease their work below the just price; or from a dishonorable condition added, for example if they undertook work not necessary to be furnished on Sundays. The contract can also become void, namely in the case in which the master does not observe the conditions concerning which agreement was made. Then there is no obligation of contract, and therefore the workers have the right, with the other conditions observed, of ceasing from work by agreement. Yet charity demands that beforehand they warn the patron, to avoid his very great damage.

But if no contract preceded concerning work to be furnished for a determined time, or if the time has elapsed, the right belongs to the workers of ceasing from labor at their pleasure, and this even by agreement; but to induce others unwilling to this is often against charity both toward workmen and toward masters, unless a grave cause excuses.

b) IN THE MODE, the cessation of labor would be unjust if seditions were moved, if force or threats were applied either against the masters themselves for extorting the things sought, or against other workers, by prohibiting them from labor through fraud, threats, or strictly harmful means; likewise if the workers harmed other citizens by disturbing the city.

It is said 2. That there be a just and grave cause. a) Just; therefore operistitia made for extorting a wage beyond the highest price or any inequitable conditions are illicit. But if, while obtaining an equitable pay, they intend an increase of the same, yet not above the highest price, they do not sin against justice, unless they apply unjust means, for example lies. But agreeing among themselves in this way about not leasing their work at a lower price, they seem to harm charity⁰³ (cf. n. 1138, 2).

b) Grave; for since from operistitia very evil consequences commonly arise, a cause of great moment is required, such as will be, with the circumstances considered, a diminution of excessive labor, or a cessation of vexations.

It is said 3. That no other way be available; and this also on account of the innumerable evils which a cessation from labor by agreement carries with itself. From this last condition it is clear that there is required in addition a true probability of obtaining the good end intended, if not immediately, at least in the near future.

We have said: theoretically it is licit. But IN PRACTICE, operistitium very often is illicit, because it cannot always be established concerning the conditions mentioned above, and many inconveniences accede which Leo XIII best declares thus: "This kind of cessation affects with damage not only masters and the workmen themselves, but harms commerce and the utilities of the state; and since it is accustomed not to be far from violence and disturbances, very often it brings public tranquillity into danger."

Nevertheless they are not to be blamed who, only on account of grave fear struck into them by associates, cease from labor while bearing themselves passively. Cf. Lehmkuhl, I, 1349; Genicot, II, n. 22; Gopfert, II, 122; Biederlack, Innsbr. Quart. Schr., 1912 and Theolog. Fragen; Vermeersch, o. c., n. 470.

1155. I. Emphyteusis is a contract, similar to leasing, by which, under the burden of an annual pension, the useful ownership of an immovable thing is transferred, the direct ownership being retained.

Emphyteusis differs from leasing, because it is only concerning an immovable thing, and also transfers the whole useful ownership for a long time, at least for ten years; and the annual canon to be paid is accustomed to be moderate, nor is it given for fruits, but in recognition of direct ownership.

In this contract what the right is depends on the custom of places and on the agreement itself of the contracting parties, which must be confirmed by a written instrument (III, 865; cf. Ferraris, v. Emphyteusis).

Note. A libellatic contract is when the emphyteuta or feudatory hands over the same estate to a third party under the same conditions. This contract is also called subemphyteusis or subinfeudation. See the civilists and canonists.⁰²

1156. II. A fief (named from faith or fidelity) is a contract by which the useful ownership of an immovable thing is transferred to another, the direct ownership being retained, under the burden of fidelity and personal service.

He who hands over is called the infeudator; he who accepts, a vassal or feudatory. But these things almost everywhere among nations are now obsolete. Yet see n. 852.

1017. • 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.

1018. 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.

1019. • 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.

1020. • 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.

1021. 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.

1022. • 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.

1023. • 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.

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.

I. QUESTION I. What is assurance? ANSWER. It is a contract by which for an agreed price a man takes upon himself another's danger, being about to compensate it either wholly or in part. The quantity of the price is fixed by the laws of the marketplaces. All grant that this contract is lawful. In the chapter Naviganti the assurance prohibited is in respect of a lender, on account of the danger of usury.

II. QUESTION II. What is suretyship, pledge, hypothec, and composition? ANSWER. Suretyship is the taking upon oneself of another's obligation, by which a man binds himself to fulfil it, the principal debtor failing. That contract is called subsidiary and accessory, because the surety is substituted for the principal debtor. He who constitutes himself a principal debtor for another is not properly a surety. Often nevertheless sureties constitute themselves principal debtors, who are called mallevadori in principalità. These can be directly compelled to payment, the first debtor being left aside.

III. Pledge and hypothec are wont to be taken for the same thing. Strictly taken, nevertheless, those contracts differ: for a pledge is of movables only, a hypothec of immovables. A pledge is defined a contract by which a movable thing is delivered to a creditor for the security of a debt. A hypothec is a contract by which an immovable thing, by a bare convention, without delivery, is obligated to a creditor for the security of a debt, so that if the other do not satisfy, satisfaction may thence be sought. A hypothec is twofold: one general, by which all goods are obligated; the other particular, by which a man obligates some determinate thing.

IV. Composition is an onerous convention by which doubtful and uncertain rights between parties are settled. This, lawfully constituted between the parties, has the same force as a judge's sentence. Wherefore, it being once carried out, restitution in integrum is not granted, unless an enormous injury appear. Would that this contract, useful to both parties, were more frequent, so many lawsuits pernicious even to the victors being dismissed.

V. QUESTION III. What is emphyteusis? ANSWER. It is a contract by which the useful dominion of an immovable thing is transferred for a long time, the direct being retained, with the burden imposed of an annual pension to be paid. The word emphyteusis is Greek, which in Latin signifies grafting or planting: because formerly untilled estates were delivered to be planted.

VI. If an emphyteuta for three years does not pay the agreed pension entire to a lay lord, and for two years to a church, by that very fact he falls under the penalty of forfeiture, and the proprietary lord can deprive him of the emphyteutic thing with all the improvements made.

VII. QUESTION IV. What is a fief? ANSWER. It is a contract by which the useful dominion of an immovable thing is transferred, the direct dominion being retained, under the burden of fidelity and of personal service. It differs from emphyteusis, because a feudatory or vassal does not pay the lord an annual pension, as an emphyteuta does, but only owes personal service of defence, aid, and fidelity, when required by the lord.

VIII. QUESTION V. What is a loan for use? ANSWER. It is the gratuitous granting of some thing as regards its use only for a fixed time. But precarium is the gratuitous granting of some thing as regards its use only, revocable at the pleasure of the grantor. Contracts of this kind are akin; they differ only in this, that a precarium can be demanded back at the pleasure of the grantor, but a loan for use only when the appointed time has elapsed.

IX. QUESTION VI. What is a deposit? ANSWER. It is a contract by which a thing is committed to another's trust for custody alone, that it may be rendered back entire. There is required the mutual consent of the depositor and of the depositary. A depositary cannot use the thing deposited without the depositor's consent. If nevertheless it be money which suffers loss from use, he can use it, provided he be always ready to render it at the depositor's pleasure. He ought to use diligence in the custody. If loss follow, he is held to recompense for grave fault only. Cloistered religious cannot undertake a deposit without the prelate's licence: the monastery is not held to compensation if the deposit perish with a private religious, or with the prelate, unless they had undertaken it with the chapter's consent. The rest, by reason of mind, are capable of receiving a deposit.

X. QUESTION VII. What is letting? ANSWER. It is an onerous contract by which the use, or the fruits, of a thing or of a person is sold for a price. Hiring is a contract by which the use of a thing or of a person is bought for a price.

XI. QUESTION VIII. Do those sin who let houses for the exercising of usuries, for harlotry? ANSWER. All the Fathers affirm it, as I have made plain elsewhere. Fr. Claude La Croix, Book 3, part 2, doubt 1, no. 1042, heaps up opposed opinions — probable, improbable, and lax — and after his manner subjects the same to the discretion of his readers, as if Pyrrhonism were Christian morality. He shows himself nevertheless to incline to the opinion teaching that such letting is lawful: because this, he says, tends proximately to the giving of a habitation, but remotely affords an occasion of sinning. This opinion, as it seems to me, is false. See what has been said where scandal was treated.

XII. QUESTION IX. What is a promise, and what is its obligation? ANSWER. It is the free and spontaneous giving of one's word concerning a thing lawful and possible. For there is required for a true promise an obligation of furnishing, out of the virtue of fidelity, that which is promised; nor does the mere will of doing suffice; and therefore it is called a giving of one's word. It is called free and spontaneous, because a promise is a gratuitous contract.

XIII. That a promise may bring in an obligation, it must be accepted by him to whom it is made. A promise confirmed by oath cannot be revoked before acceptance, because the promiser by the bond of religion binds himself not to revoke the promise, whatever some may say to the contrary. The gravity of the obligation in a gratuitous promise depends upon the intention of the promiser, who as regards this is the lawgiver.

XIV. QUESTION X. What is a donation? ANSWER. It is the liberal delivery of some thing. One is real, set in the delivery of the thing; another verbal, by which a man gives an absent thing, which is an imperfect donation, and rather a promise. Again, a donation is distributed into absolute, which is perfect, and conditional, which has a condition annexed. Lastly, one donation is between the living, which continuously transfers dominion to the donee, even while the donor lives; another is a donation by reason of death, in which a man now gives a thing, but to be possessed after death. This is revocable, the former not, a few cases excepted.

XV. Those can give who possess absolute dominion of the thing to be given. Hence religious cannot give. The causes of revoking a donation are: first, the donee's ingratitude proved in court; second, offspring afterwards received; third, if the donation be undutiful, against paternal piety toward sons, as if it injure the lawful portion owed to sons; fourth, if anything be given for a cause, and the cause do not follow.

EMPHYTEUSIS is manifold; For one kind is given indefinitely, no mention of time being made, and is called Perpetual; Another is given for certain fixed generations, and is called temporal. Likewise it is either Ecclesiastical, or Secular, according to the diversity of Dominion; New, or Old, according to the variety of time, in which it is newly instituted, or renewed. There is also an Emphyteusis hereditary simply, hereditary mixedly, and familial; and this diversity arises by reason of the persons for whom it is granted; This division having been assigned, it is asked what Emphyteusis properly is; afterwards we shall treat also of the other contracts noted in the title.

THE SAINTLY Doctor treats briefly of Emphyteusis in Laconic style in the Diaeta salutis, Title 2. cap. 5., where he also treats of the Feud.

It is called in Greek Emphyteusis, as it were an implanting, or ingrafting. In question here is the grant of an immovable thing with the translation of the useful dominion, the direct dominion being retained, for a certain sum of money, which is called Laudemium; and with the burden of a certain rent to be paid to the Proprietor, and that either in perpetuity, or for the life of one or of several (in which case it is called a vitalitium), or for certain years, however not fewer than ten. He who sells is called the Direct Lord; he who buys, or receives, is called the Emphyteuta.

IT DIFFERS from Leasing. First, because it is constituted only in an immovable thing, which can be made better by cultivation. Second, because by it the useful dominion is transferred. Third, because a lease properly cannot be made for ten years or more, for then by common law the useful dominion is transferred to the lessee, and accordingly it ceases to be a proper Lease, and becomes an Emphyteusis, and this is gathered from Leg. 1. ff. de superficiebus, and from common practice, as Couarruvias teaches, l. 2. var. cap. 16., and Tanner disp. 4. quaest. 7. num. 116. Bassaeus v. Emphyteusis.

FOR the contract of Emphyteusis, that it may be legitimate, these conditions are established by common Caesarean law, as Lessius reports, l. 2. cap. 24. dub. 9., Tanner disput. 4. quaest. 7. dubio 6., although according to various Provinces different ones and different ones are laid down.

THE FIRST is, that it be constituted in immovable and fruitful things, as in fields, houses, pastures, etc.

THE SECOND, that the useful dominion be in the hands of the Emphyteuta, who is therefore bound to all the burdens and taxes which are otherwise usually paid by reason of that dominion, even if the goods should otherwise belong to the Church.

THE THIRD, that the Emphyteuta be bound to pay an annual rent, as D. Bonaventure also notes, in the place cited.

THE FOURTH, that if he does not pay within a certain time, he lose the emphyteutic thing with all the improvements, whether expenses, or works, which he made upon it, and that it return to the former lord.

THE FIFTH, that if the thing entirely perishes without fault of the Emphyteuta, he be freed from the rent, unless he has bound himself to fortuitous cases.

THE SIXTH, that, if he renders the thing seriously deteriorated, he lose it.

THE SEVENTH, that the Emphyteuta not sell the improvements except to the direct lord, first admonished, so that he may buy before others if he wishes.

THE EIGHTH condition is, that if the thing is sold, or alienated in another way, he who receives it pay the direct lord the Laudemium for the investiture which he receives from him.

NOW the Laudemium is a certain part of the price, or valuation, of the thing sold, which indeed by common law is a fiftieth, but by custom a thirtieth, as Sylvester notes, verb. Emphyt. num. 28., from the Ostiense; Lessius num. 57. and Tanner num. 170. Bassaeus in the place cited.

A FEUD, named from fides (faith), is the grant of an immovable thing with the translation of the useful dominion, the proprietorship retained, under the burden of exhibiting fidelity and personal service: by which reason it differs from Emphyteusis.

He who grants the feud is the Lord of the feud: he who receives it, however, is the Feudatory. Or he is called a Vassal, as D. Bonaventure notes in the Diaeta, titulo 2. cap. 5.

ONE feud is proper, another improper: one noble, another not ennobling; the noble one, one regal, another not. One is called Liege, in which fidelity is sworn against every man: another not Liege, ligium, in which the prior lord is excepted. One is frank, another not frank, from services. One Ecclesiastical: another secular.

FOR a feud the same conditions are required as for an Emphyteusis, except that the Vassal, where the feud is pure, is not bound to a rent, but in place of the rent to service, which, omitting it when it is required, he loses the feud. Fidelity, moreover, is sworn to the Lord, as is had in Sylvester, verb. Feudum: not to harm the lord, nor to divulge his secrets.

THE Vassal, however, is bound to seek the investiture of the feud within a year and a day, provided, however, that if he be a knight, he has a year and a month; or if he be under 14 years of age, or impeded by a just cause: See Tanner, disp. 4. quaest. 7. dub. 6. Balzus, v. Feudum and the others cited by these.