or letting and hiring,
is, like sale [EMPTIO VENDITIO], one of the four Roman contracts which were
said to be made consensu,
because neither form
nor part performance was required to make the agreement actionable. It
comprises two varieties, which are distinguished below, viz. locatio conductio rerum
and locatio conductio operarum.
The contract was concluded, and
the parties bound, as soon as they were agreed upon what was to be hired,
and the consideration (merces
) to be paid for
it (Gaius, 3.142; Inst.
3.24, pr.). This merces
must be money, “pecunia numerata”
ib. 2), except that the rent of agricultural land
might be a certain proportion of its annual produce (Cod. 4, 65, 21).
Locatio conductio rei
is the letting or hiring
of a res,
but the res
may be anything which could be bought and sold (and so not
merely a tangible object, movable or immovable, but a res
such as a usufruct, Dig.
). The lessee of a house was called inquilinus,
of agricultural land colonus.
The letter (locator
was bound to allow the other to have it
for the time or purpose agreed upon, and for that time to take its fruits if
it were a fruit-bearing object; but as he remained its owner, he could
always recover it back at the cost of having to pay damages for the breach
of his contract: and similarly, if he sold or otherwise alienated the
the alienee could always make
the conductor give it up (whence the German maxim Kauf bricht
), though the latter of course had his remedy against the
; Cod. 4, 65, 9). The hirer was bound to pay the merces
agreed upon; to show the diligentia
of a bonus paterfamilias
] in his charge of it,
and to redeliver it at the termination of the contract in as good condition
as when it came into his hands, saving ordinary wear and tear.
Locatio conductio operarum
is the letting by a
free man (locator
) of his services at a fixed
If he was employed to make some
specific object for the employer (e. g. to build a house, to make a piece of
plate, &c.), he was called conductor
) and the employer locator,
and the transaction is sometimes called specifically locatio conductio operis
). If the agreement was to do the whole job at a sum
absolutely fixed, as distinct from so much per
or so much for each portion completed, it was said to be
made per aversionem
, pr.; ib.
36; ib. 51, 1).
The jurists were often doubtful whether a given contract was sale or hire; as
where, in consideration of so much money to be paid by a customer, a
goldsmith agreed to mare him a ring out of his (the smith's) gold (Gaius,
3.24, 4): other similar cases will be found in
Gaius, 3.146. Among them was that of a lease of land in perpetuity at a
rent, which Gaius says was, according to the better opinion in his time,
hire, not sale, but which in later times became an independent contract
distinct from either [EMPHYTEUSIS
]. Sometimes again the transaction was held to be neither
sale nor hire, though closely resembling both, but one of the so-called
innominate contracts, enforced by an actio praescriptis
3.24, 1 and 2). (Gaius,
2.9, 15; Paul. Sent. rec.
3.24; Dig. 19
; Cod, 4, 65.)