[ULPIANUS libro trigesimo secundo ad edictum. ] §19.2.9.prSi quis domum bona fide emptam uel fundum locauerit mihi isque sit euictus sine dolo malo culpaque eius, Pomponius ait nihilo minus eum teneri ex conducto ei qui conduxit, ut ei praestetur frui quod conduxit licere.
[ULPIAN, On the Edict, book thirty-two] If anyone has leased to me a house bought in good faith or a tract of land, and it is evicted without his fraud or fault, Pomponius says that he is nonetheless bound by the action on lease (ex conducto) to the person who leased, to guarantee to him that he is permitted to enjoy what he leased.
plane si dominus non patitur et locator paratus sit aliam habitationem non minus commodam praestare, aequissimum esse ait absolui locatorem.
Clearly, if the owner does not allow it and the lessor is ready to provide another habitation no less convenient, he says it is most equitable that the lessor be released.
§19.2.9.1Hic subiungi potest, quod Marcellus libro sexto digestorum scripsit: si fructuarius locauerit fundum in quinquennium et decesserit, heredem eius non teneri, ut frui praestet, non magis quam insula exusta teneretur locator conductori.
To this can be added what Marcellus wrote in the sixth book of his Digests: if a usufructuary leases a tract of land for five years and dies, his heir is not bound to guarantee enjoyment, any more than a lessor would be bound to a lessee if an apartment building burned down.
sed an ex locato teneatur conductor, ut pro rata temporis quo fruitus est pensionem praestet, Marcellus quaerit, quemadmodum praestaret, si fructuarii serui operas conduxisset uel habitationem? et magis admittit teneri eum: et est aequissimum.
But Marcellus asks whether the lessee is bound by the action on lease (ex locato) to pay rent in proportion to the time he had enjoyment, just as he would pay if he had hired the services of a usufructuary's slave or a habitation? And he rather admits that he is bound; and this is most equitable.
idem quaerit, si sumptus fecit in fundum quasi quinquennio fruiturus, an recipiat? et ait non recepturum, quia hoc euenire posse prospicere debuit.
He asks the same: if he made expenditures on the land, thinking he would enjoy it for five years, does he recover them? And he says he will not recover them, because he ought to have foreseen that this could happen.
quid tamen si non quasi fructuarius ei locauit, sed si quasi fundi dominus? uidelicet tenebitur: decepit enim conductorem: et ita imperator Antoninus cum diuo Seuero rescripsit.
Yet what if he leased it to him not as a usufructuary, but as if he were the owner of the land? Clearly he will be bound; for he deceived the lessee; and so the Emperor Antoninus and the deified Severus wrote in a rescript.
in exustis quoque aedibus eius temporis, quo aedificium stetit, mercedem praestandam rescripserunt.
They also wrote in a rescript that in the case of burned-down buildings, the rent is to be paid for that time during which the building stood.
§19.2.9.2Iulianus libro quinto decimo digestorum dicit, si quis fundum locauerit, ut etiam si quid ui maiori accidisset, hoc ei praestaretur, pacto standum esse.
Julian says in the fifteenth book of his Digests that if anyone leases land on the terms that even if something should happen by force majeure, this would be made good to him, the agreement must be stood by.
§19.2.9.3Si colonis praediorum lege locationis, ut innocentem ignem habeant, denuntiatum sit, si quidem fortuitus casus incendii causam intulerit, non praestabit periculum locator: si uero culpa locatoris, quam praestare necesse est, damnum fecerit, tenebitur.
If it was declared to agricultural tenants of estates by a clause of the lease that they must keep a harmless fire, if indeed an accidental event caused the fire, the lessor will not bear the risk; but if indeed a fault of the lessor, which he is bound to answer for, caused the damage, he will be liable.
§19.2.9.4Imperator Antoninus cum patre, cum grex esset abactus quem quis conduxerat, ita rescripsit: 'Si capras latrones citra tuam fraudem abegisse probari potest iudicio locati, casum praestare non cogeris atque temporis quod insecutum est mercedes ut indebitas reciperabis. ' §19.2.9.5Celsus etiam imperitiam culpae adnumerandam libro octauo digestorum scripsit: si quis uitulos pascendos uel sarciendum quid poliendumue conduxit, culpam eum praestare debere et quod imperitia peccauit, culpam esse: quippe ut artifex, inquit, conduxit.
The Emperor Antoninus with his father, when a herd which someone had hired had been driven off, wrote in a rescript as follows: "If it can be proved in the action on lease (iudicio locati) that robbers drove off the goats without fraud on your part, you will not be compelled to make good the accident, and you will recover the rent for the time that followed as not being due." Celsus also wrote in the eighth book of his Digests that lack of skill is to be counted as fault: if someone has contracted for the pasturing of calves or the mending or polishing of something, he must answer for fault, and what he did wrong through lack of skill is a fault; for, he says, he contracted as a craftsman.
§19.2.9.6Si alienam domum mihi locaueris eaque mihi legata uel donata sit, non teneri me tibi ex locato ob pensionem: sed de tempore praeterito uideamus, si quid ante legati diem pensionis debetur: et puto soluendum:
If you leased to me another's house, and it was bequeathed or donated to me, I am not bound to you by the action on lease (ex locato) for the rent; but let us see concerning the past time, if any rent is due before the day of the bequest; and I think it must be paid.