II THE USE OF LAND

This section looks at the various legal devices which were used to exploit land, notably leases and usufruct. For the purposes of this section, ‘land' means land t ogether wifli th e bu ildinds built on it: th at reflects a rule of Roman law that ownership of land carried with it whatever was built on the land (Gaius, Inst.

There is evidence of leasing of urban property as an investment, although probably compared with rural property this was on a small scale. The risks were evidently higher - collapse of buildings and espe­cially fire — but the returns were commensurately greater than in letting rural property (Aulus Gellius, Noctes atticae 15.1.1—3). None the less, the Digest contains a good deal of evidence about urban letting (for example, see Ulpian, D. 5.3.27.1).

The main rental market appears, however, to have been in rural prop­erty. Although this got off to a slow start, by the time of our principal legal sources tenancy appears to have become the chief method for exploiting land throughout the Roman empire (Finley 1976; de Neeve 1984: 164—74; Kehoe 1997: 5, 156—66). For that reason, most of this section is concerned with tenancy.

1.

This does not raise any significant legal issues beyond the question of remedies, which has already been discussed. Slaves would of course be likely to bear most of the burden of work; a (free or slave) manager or vilicus would regularly be appointed.

is regarded as being a good thing (Julian, D. 19.2.32; Hermogenian, D. 19.1.49 pr.; Kehoe 1997: 163-6).

The law of leases is therefore more even-handed than previously assumed. This will be confirmed by closer inspection of some of the key topics.

The landlord and the tenant

Landlords might lease premises directly to the tenants who were to occupy 1 Ih iii. But this was not the only possibility: particularly ln the case oo leases of flats, we find leases of the premises as a whole to a tenant who would then enter into sub-leases of the individual flats with the actual occupiers. There are examples of this in the Digest (Alfenus, D. 19.2.30 pr.; Labeo, D. 19.2.58 pr.). The advantage from the landlord’s point of view was that he had in place a manager, who had undertaken to pay a fixed rent. He therefore shielded the landlord not just from the tiresome business of dealing with individual tenants but also from fluctuations in the rent, owing, for example, to inability to let the prem­ises fully or the insolvency of one of the occupiers. The disadvantage was of course that this security came at a price:the head landlord w receive only a proportion of the full market rent, since the sub-land had to haae h is sup For oxample, ln Alfenus’ usxOi Xte lae tUord oct a Su ikl - ing for thirty, and the tenant sublet the apartments in it for a to forty.

The same on’’ 11 usimi for nu^i’ gse of tenanc^s for managemeaC purposes is fehuO m ’dallan to land: thera is soms widened o’ aivieing up landholdings in order to make it easier to attract tenants to (Paul, D.

Vacant possession

The landlord’s obligation was only to provide the tenant with vacant possession of the property in a state such that he could enjoy it. Failure to do this was a breach of contract on the part of the landlord and would make him liable in damages. So, for example, the landlord was liable if the leased building had to be demolished, as well as for less drastic breaches of contract such as the blocking of daylight from a flat (Alfenus, D. ig.2.30 pr.; Gaius, D. ig.2.25.2). Similarly, if leased land was unten­antable, or the farm buildings or stables in disrepair, the landlord would be liable (Ulpian, D. ig.2.15.1). But, provided the landlord met this obli­gation, the tenant was under an obligation to pay the rent.

The tenant's obligation was qualified somewhat by the development of rules for abatement of rent (remissio mercedis), particularly in the case of rural property in the event that the crop failed. Although the ratio­nale underlying this doctrine is not entirely clear and controversy con­tinues (Frier ig8g—go), it seems to have become settled that where overwhelming force, force majeure, caused the failure of the crop, that risk lay on the landlord. The consequence was that the tenant was not obliged to pay the full rent, but the rent due by him was abated pro rata. The tenant might still be liable to make up the rent to the full amount, if future years were particularly fruitful.

Force majeure ought not to cause loss to the tenant, if the crops have been damaged beyond what is sustainable. But the tenant ought to bear loss which is moderate with equanimity, just as he does not have to give up profits which are immoderate. It will be obvious that we are speaking here of the tenant who pays rent in money; for a share-cropper (partiarius colonus) shares loss and profit with the landlord, as it were by the law of partnership. (Gaius, D. ig.2.25.6)

At the end of the text, Gaius refers to share-cropping, the possibility of paying rent as a proportion of crops harvested. One consequence of doing so, as he points out, is that the tenant does not carry the whole risk of the failure of the crop as he would in an ordinary lease, since what he has to pay is scaled down automatically.

Much the same approach to abatement of rent seems to have been adopted in urban bases: a difficult (because corrupt) passage of the republican jurist Alfenus Varus indicates that the tenant cannot rely on minor inconvenience (such as repair work) as a ground for withholding rent: there must be a aubstantiai smpacS on his occupation of the pihin - ises to allow him to do so (D. 19.2.27 pr.). This text as it stands does not say how much rent could be withheld, but it is perhaps not unreasonable to assume that it would be in proportion to the part of the premises which was unusable.

To cut a long story syort: freedom of contract allowed the parties to make thcer own nergasn.

Rent

The contract of lease of property (locatio conduct™) involved the letting of a thing against payment in money. The text of Gaius just cited shows that at least one jurist (writing here — perhaps significantly — in his com­mentary on the provincial edict) was aware of a practice of paying rent in kind: the handlcred tood a th awe rO the orops os shg reot. The practics is also mootitmtO by Pliny (ep. 9.37.2). It seems not unlikely that this type of rental agreement was an import from the Greek East; and in Egypt it was apparently a typical form of lease. None the less, although the jurists were not wholly inflexible, on the whole they avoided discussion of the peculiarities of this type of rental agreement and confined them­selves to cases of money rent (Africanus, D. 19.2.35.1; Gaius, Inst. 3.144).

There is some reason to believe that this sort of tenancy agreement was chagagteoirSsc oo tho lowew end od the syecssum: toe teoantt mesht be tuppSled with to me of toe wee istaty gqu ioment, onsl midht bs tupeo- vised, sometimes by staves, foo the obvibus reason toat theie offorts directly influenced the landlord’s own income from the land (de Neeve 1984: 16-18).

Other terms

These basic contractual terms could be supplemented.

In urban leases we find such things as terms prohibiting the lighting of a fire and also (more conveniently, if less clearly) the lighting of a harmful fire (Ulpian, D. ig.2.ii.i). In rural tenancies, the tenant would anyway be under a general duty to occupy and to keep the land in good heart, but he might also come under more specific obligations, for example to cultivate in a particular way or to build something (lavolenus, D. ig.2.51 pr.; Paul, D. ig.2.24.2-3; Gaius, D. ig.2.25.3); conversely, the landlord might come under an obligation to supply certain equipment (Ulpian, D. ig.2.ig.2).

In any kind of tenancy it was open to the parties to reinforce the contractual obligations by setting penalties for failure to comply with them (Paul, D. ig.2.54.i).

Termination

Since the Roman lease generated only personal rights, the tenant obtained no right to the property (right in rem). It follows that the tenant's position was relatively insecure. In the event of sale of the property by the landlord, the tenant had no claim on the property, and no rights against the new owner, and could therefore simply be ejected. It is true that this might involve the landlord in payment of compensation for breach of contract; but that would be little consolation to a tenant whose primary desire was to be allowed to remain in occupation. Nowadays, by contrast, under the typical lease tenants have certain statutory rights to security of tenure.

This lack of security of tenure in Roman law does appear to favour the landlord. But two qualifications should be borne in mind. First, as mentioned already, a landlord had every interest in trying to retain a satisfactory tenant. Second, the way the jurist Gaius describes sale of tenanted property does not suggest that the buyer's first act would have been to proceed wiwi sunsn^am eyiction: he says that the s eller should take care that the tenant is entitled to enjoyment on the sam under the new owner; otherwise the seller is liable to his ten breach of coneoaet (D. ig.2.25.i). Clearly, this does not prove anything, but it counsels caution in assuming that the tenant was in practice in a fragile position.

The lease might also end by abandonment by the tenant before its full term was up. Although we do not know much about the details of this, it seems likely that the tenant would remain liable to pay damages based on the rent for the full term of the lease, unless he had a reason which justified abandonment. The only reasons the jurists discuss are related to physical deterioration of the property (Paul, D. ig.2.55.2; Frier ig8o: g2-io₅).

3. Long leneee

In later classical law a new form of lease is found in which the tenant does have a right to the leased property, often indeinitely, as well as to protection by interdict and a proprietary action. He therefore has secur­ity of tenure. This form of lease seems to have been developed irst for leases by the Roman state or municipalities. Later law seems also to have allowed private arrangements along the same lines, normally of land on which the tenant was to build (D. 43.18).

4. Ueufruct

Usufruct gave a person certain rights in a thing for a period, which might be either a term of years or a lifetime. The rights involved were, as the name suggests, to the use (ueue) and enjoyment of the fruits fructue) of the thing. These rights were exclusive, so the owner had no right to use or enjoyment until the usufruct came to an end. A usufruct might be over movable property or land; the present concern, however, is solely with land.

Just as leases split the exploitation of land between two people, the landlord and the tenant, each of whom enjoyed part of its fruits, so too usufruct divided it between owner and usufructuary. But the social context of usufruct was very different: the typical 1 uiilriu'i was left by a testator to his widow and gave her a right for life to the use income from, his estate, while leaving the ownership of that propert the 11^ uhoIs chUdren.

Notwithstanding tins c osy famUy ba ckground to the insi it i n h iiu of fruct, the jurists developed a good deal of law regulating the resp rights of owner and u sufductoady I. icdie nnl iknly drat that was s imply for their own amusement, and more probable that there were dis about precisely what the usufructuary was entitled to do. It is clea there Is a huiuim ODnflict of interest between a person with a life inter­est in property and the person who will become unrestricted owner of the property ww^ nh^ He inteeett eonies to an e nd: ibn peteon 'wlt]e the; life iin1ires! is mSeoested d^y ly tlae short tormi in manamaing ninoine, and has no personal interest in (for example) the good heart of th in the long term. The owner, on the other hand, will be interest seeing that the capital value of the land is maintained and that it is not threatened by policies designed only to boost short-term income.

The usufructuary was kept in order in two ways: first, he could be held liable to the owner under the lex Aquilia for wrongful damage to prop­erty; second, he was required in advance to give a promise to return the property at the end of the period of the usufruct and to treat the prop­erty as a reasonable man would do. This second part of the promise enabled the jurists to enter in extraordinary detail into the question what the usufructuary was entitled to do with the property, as a glance at title D. 7.1 will confirm. Here it is enough to give two examples.

If trees are uprooted or blown down by the wind, Labeo says the usufructuary can use them for his own purposes and that of the villa, but he is not to use the wood as firewood if he has another source for that. I think this view is correct: otherwise if the whole estate suffered this fate the usufructuary would make off with all the trees. Labeo thinks the usufructuary can cut wood for the purpose of repairing the villa; in the same way, he says, he can burn lime or dig sand or take what is necessary for the building. (Ulpian, D. 7.1.12 pr.)

The usufructuary ought not to make the state of the property worse, although he may make it better. If the usufruct of a farm is left by legacy, he ought not to cut down fruit-bearing trees or demolish the villa or do anything to the det­riment of the property If it was a pleasure garden, having greenery or pleasant drives or walks shaded by ornamental trees, he must not destroy this in order, for example, to create market gardens or anything else for the purpose of profit. (Ulpian, D. 7.1.13.4)

From these texts it is clear that observing the standard of the reasonable man meant that the usufructuary could not go all out for profit. The cases discussed in the Digest are many and various, but in the end they come back to one point: the ieiihiu'liuc-y must not damage me sub­stance of the pooperty. In n gwon cane ciews might miffer on whether the usufructuary’s use of trees or minerals was or was not damaging the sub­stance of the property (e.g Ulpian, D. 7.1.12 pr. and D. 7.1.13.5). Modern views might also differ on whether the approach adopted here by Roman law demonstrated a lack of economic thinking or a welcome rejection of short-termism.