Justinian I · The Digest of Justinian §19.2.33.pr

Lessor Liability and Rent Restitution upon Land Confiscation

Passage 2854 of 9271 · Latin

Summary

It discusses the contractual obligations between a lessor and a lessee (tenant) when the leased land is confiscated. Specifically, it defines the scope of rent return in case of non-performance not due to the parties, and the liability for damages depending on the nature of third-party interference.

[AFRICANUS libro octauo quaestionum. ] §19.2.33.prSi fundus quem mihi locaueris publicatus sit, teneri te actione ex conducto, ut mihi frui liceat, quamuis per te non stet, quo minus id praestes: quemadmodum, inquit, si insulam aedificandam locasses et solum corruisset, nihilo minus teneberis.

[AFRICANUS, from the eighth book of Questions.] If a tract of land which you leased to me has been confiscated, you are bound by the action on lease to allow me to enjoy it, even though it is not due to you that you cannot perform this. Just as, he says, if you leased out the construction of an apartment building and the ground collapsed, you will nonetheless be bound.

nam et si uendideris mihi fundum isque priusquam uacuus traderetur publicatus fuerit, tenearis ex empto: quod hactenus uerum erit, ut pretium restituas, non ut etiam id praestes, si quid pluris mea intersit eum uacuum mihi tradi.

For even if you sold me a tract of land and it was confiscated before it was delivered vacant, you would be bound by the action on purchase; which will be true to this extent, that you restore the price, not that you also make good whatever greater interest I had in it being delivered vacant to me.

similiter igitur et circa conductionem seruandum puto, ut mercedem quam praestiterim restituas, eius scilicet temporis, quo fruitus non fuerim, nec ultra actione ex conducto praestare cogeris.

Therefore, I think that the same rule should be observed regarding hire, namely, that you restore the rent which I paid, that is, for the time during which I did not enjoy it, and you will not be compelled to perform anything further under the action on lease.

nam et si colonus tuus fundo frui a te aut ab eo prohibetur, quem tu prohibere ne id faciat possis, tantum ei praestabis, quanti eius interfuerit frui, in quo etiam lucrum eius continebitur: sin uero ab eo interpellabitur, quem tu prohibere propter uim maiorem aut potentiam eius non poteris, nihil amplius ei quam mercedem remittere aut reddere debebis,

For even if your tenant is prevented from enjoying the land by you or by someone whom you can prevent from doing so, you shall make good to him as much as it was of interest to him to enjoy it, in which his profit will also be included. But if he is disturbed by someone whom you cannot prevent on account of force majeure or his power, you will owe him nothing more than to remit or return the rent,

Notes

19.2.33.prteneri te — The conditional clause 'si... publicatus sit' is followed by the accusative with infinitive 'teneri te...', which indicates indirect speech (oratio obliqua) reporting an opinion or precedent, with a main verb of saying or replying being understood.
19.2.33.prper te non stet, quo minus id praestes — An idiomatic negative construction of the impersonal expression 'per aliquem stat, quo minus...' (it is due to someone that... not). Here, it means 'even though it is not due to you (i.e., due to your fault) that you cannot perform this'.
19.2.33.prinsulam aedificandam locasses — The construction of 'locare' with a noun and a gerundive ('aedificandam') denotes a contract for a specific work to be completed (locatio conductio operis), meaning 'to contract out the construction of an apartment building'.
19.2.33.prquod hactenus uerum erit, ut... non ut... — A restrictive use of 'hactenus... ut...'. It means 'this will be true only to the extent that..., not to the extent that...', indicating that the obligation to make restitution is limited to the price paid and does not cover further expectation interests.
19.2.33.prquanti eius interfuerit frui — The construction of the impersonal verb 'interest' with the genitive of the person concerned ('eius') and the genitive of value ('quanti'). It means 'how much it was of interest to him (the tenant) to enjoy it', which defines the standard for expectation damages (including lost profits).

Cite this passage

Justinian I, The Digest of Justinian §19.2.33.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:19.2.33.pr

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