[IAUOLENUS libro undecimo epistularum. ] §19.2.51.prEa lege fundum locaui, ut, si non ex lege coleretur, relocare eum mihi liceret et quo minoris locassem, hoc mihi praestaretur, nec conuenit, ut, si pluris locassem, hoc tibi praestaretur, et cum nemo fundum colebat, pluris tamen locaui: quaero, an hoc ipsum praestare debeam.
[JAVOLENUS, from the eleventh book of Letters.] I leased a tract of land on the condition that, if it were not cultivated according to the terms of the agreement, I should be permitted to lease it again, and that whatever less amount I leased it for should be made good to me; and it was not agreed that, if I leased it for more, this should be made good to you. And since no one was cultivating the land, I nevertheless leased it for more: I ask whether I ought to pay this very difference.
respondit: in huiusmodi obligationibus id maxime spectare debemus, quod inter utramque partem conuenit: uidetur autem in hac specie id silentio conuenisse, ne quid praestaretur, si ampliore pecunia fundus esset locatus, id est ut haec conuentio pro locatore tantummodo interponeretur.
He replied: In obligations of this kind, we must especially look to what was agreed between both parties. It seems, however, in this case, to have been tacitly agreed that nothing should be paid if the land were leased for a larger sum; that is to say, that this agreement was inserted solely for the benefit of the lessor.
§19.2.51.1Locaui opus faciendum ita, ut pro opere redemptori certam mercedem in dies singulos darem: opus uitiosum factum est: an ex locato agere possim? respondit: si ita opus locasti, ut bonitas eius tibi a conductore adprobaretur, tametsi conuenit, ut in singulas operas certa pecunia daretur, praestari tamen tibi a conductore debet, si id opus uitiosum factum est: non enim quicquam interest, utrum uno pretio opus an in singulas operas collocatur, si modo uniuersitas consummationis ad conductorem pertinuit.
I leased the construction of a work in such a way that I should give the contractor a fixed wage for each day for the work. The work was defectively executed. Can I bring an action on the lease? He replied: If you leased the work under the condition that its quality should be approved to you by the contractor, even though it was agreed that a fixed sum should be paid for each day's labor, yet, if the work has been defectively executed, the contractor must make it good to you. For it makes no difference whether the work is let for a single price or for each day's labor, provided only that the entirety of its completion belonged to the contractor.
poterit itaque ex locato cum eo agi, qui uitiosum opus fecerit.
Therefore, an action on the lease can be brought against him who executed the defective work.
nisi si ideo in operas singulas merces constituta erit, ut arbitrio domini opus efficeretur: tum enim nihil conductor praestare domino de bonitate operis uidetur.
Unless the wages were fixed for each day's labor for the purpose of having the work done according to the direction of the owner; for in that case, the contractor is not deemed to guarantee anything to the owner regarding the quality of the work.