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LOCA´TIO CONDU´CTIO 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” (Inst. 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 incorporalis, such as a usufruct, Dig. 7, 1, 12, 2). The lessee of a house was called inquilinus, of agricultural land colonus. The letter (locator) of a res 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 res locata, the alienee could always make the conductor give it up (whence the German maxim Kauf bricht Miethe), though the latter of course had his remedy against the locator (Dig. 19, 2, 25, 1; Cod. 4, 65, 9). The hirer was bound to pay the merces agreed upon; to show the diligentia of a bonus paterfamilias [CULPA] 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 merces. 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 or redemptor (Hor. Carm. 3.1) and the employer locator, and the transaction is sometimes called specifically locatio conductio operis (faciendi). If the agreement was to do the whole job at a sum absolutely fixed, as distinct from so much per diem, or so much for each portion completed, it was said to be made per aversionem (Dig. 19, 2, 35, 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, 3.147; Inst. 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 verbis (Inst. 3.24, 1 and 2). (Gaius, 3.142-147; Epit. 2.9, 15; Paul. Sent. rec. 2.18; Inst. 3.24; Dig. 19, 2; Cod, 4, 65.)


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