Law of Torts/Delict, General and Lex Aquilia and Lease: Difference between pages

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by ''[[Nils Jansen]]''
by ''[[Thomas Rüfner]]''


== 1. Functions of the law of torts/delict ==
== 1. Lease and hire within the system of private law ==


The law of torts or, in civilian terminology, the law of delict determines the preconditions of non-contractual liability for injury and loss. In a specific, narrow sense, both the concepts of delict and tort designate unlawful behaviour (''unerlaubte Handlungen''), ie the traditional instances of liability for wrongs or fault. Often, however, these concepts are understood in a wider, more general sense, embracing all cases of extra-contractual liability. They then also include instances of [[Strict Liability|strict liability]] such as liability for damage caused by things (''faits des choses''). Historically, these various instances of strict liability complemented the traditional liability for wrongs in the different national systems.
Under a contract of lease or hire, the owner of a thing (or another person with equivalent powers) may grant the other contracting party the use of that thing for a certain period of time in exchange for a certain amount of money. Like contracts of [[Sale|sale]], lease and hire contracts respond to fundamental economic needs and are provided for in most systems of private law.


‘Delict’ is a specifically civilian concept; in the common law, the functional equivalents are denoted with the concepts ‘law of torts’ or ‘tort law’ (from latin or legal French ''tortus'', broken). While civilian systems have long been based on—more or less far-reaching—general provisions of liability for fault (Art&nbsp;1382 ''Code civil''<nowiki>;</nowiki> §§&nbsp;823(1), (2), 826 [[Bürgerliches Gesetzbuch (BGB)|''Bürgerliches Gesetzbuch'' (BGB)]]), the common law of torts originally consisted of a large number of individual torts, such as trespass, negligence, battery, assault, false imprisonment, nuisance, or defamation. Those torts were seen as independent of one another. On the one hand, no intellectual or systematic bond was constructed between different torts, and on the other hand no categorical distinction was seen between strict and fault-based torts. During the 20th&nbsp;century, however, this difference between the common law and the civilian legal systems has been disappearing. In modern common law, too, a general liability for negligence has been recognized (''Donoghue v Stevenson'' [1932] AC 562), and since the 19th&nbsp;century doctrinal writers have been increasingly presenting the law of torts as an intellectually integrated system of related rules (tort law).
The terminology used in this area is not always consistent. In the common law tradition, the arrangement under which one party may use a piece of land in exchange for money is called ‘lease’, whereas ‘hire’ is the common term for arrangements concerning movable property. The [[Study Group on a European Civil Code]] drafted Principles of European Law for what it called the ‘Lease of Goods’. In the present entry, the terms ‘lease’, ‘lessor’ and ‘lessee’ will thus be used indiscriminately for contracts concerning both movable and immovable property. The terms ‘landlord’ and ‘tenant’ will occasionally be used as far as leases of immovable property are concerned.


The modern law of torts is the private-law expression of the individual responsibility for damage and injury resulting from a person’s activities. By imposing extra-contractual liability, the law makes a defendant responsible for damage or injury caused by him. Seen from an instrumental view, especially from the perspective of a law and economics analysis ([[Economic Analysis of European Private Law|economic analysis of European private law]]), the law of torts thus becomes a means of preventing accidents. The legal imposition of liability sets incentives for efficiently determining precautionary measures or avoiding inefficiently risky activities. At the same time, the law of torts is often assigned a ‘compensation function’; it is seen as a means of compensating the victims of accidents. However, in this function, it is only a small element in a rather complex system of public-law and private-law instruments, such as social security and first- and second-party insurance ([[Liability Insurance|liability insurance]]). Here, the relevance of tort law is in decline. Its practical function has been reduced to determining the recourse between such collective institutions; yet, this recourse is often regulated by general inter-insurance agreements.
=== a) English law ===


== 2. General developments ==
The distinction between real and personal property has played a fundamental role in the development of English law. The history of contracts for the temporary use of land is very different from the history of contracts for the temporary use of a movable thing.


During the 20th&nbsp;century, the institutions of extra-contractual liability underwent fundamental functional and doctrinal changes, those institutions having proved increasingly dysfunctional and normatively inappropriate during the 19th&nbsp;century. Those changes mostly pertained to three main aspects. First, civil responsibility has been significantly extended to embrace also the indirect consequences of actions and omissions. Secondly, the natural law fault principle, according to which there can be no liability without fault, has lost its fundamental status; fault is today seen as only one among many other possible factors justifying the imposition of liability. Thirdly, private liability has been integrated into complex collective social security and insurance systems; thereby, those systems supersede or even replace the traditional liability of private individuals.
Originally, leases involved a contractual relationship between landlord and tenant. However, as early as the Middle Ages, English lawyers devised remedies for the protection of tenants entitled to the possession of a piece of land for a term of years against interference by the landlord or any third party. The action of ejectment, which was the tenant’s remedy against eviction by third parties, allowed for the recovery of the land ''in specie'' and was not restricted to damages. Thus, the position of the termor (lessee) gradually became similar to that of a freeholder. The lessee came to be regarded as the holder of a right ''in rem''. Despite the fact that even to this day the lessee’s right to possession retains some characteristics of personal property, it was then classified as an estate in land. It is therefore oxymoronically classified as a chattel real.


All continental general provisions of delictual liability for fault can be traced back to the ''lex Aquilia'' (287/286 BC), a Roman plebiscite concerning liability for damage done to things. The modern delictual terminology, including ‘damage’ (''damnum''), ‘unlawfulness’ (''iniuria'') and ‘fault/negligence’ (''culpa'') were framed in the context of the discussions relating to this piece of legislation. Yet, the Roman law of delict neither functionally nor conceptually related to a fair compensation of losses; rather, it was meant to provide for an appropriate sanction for a wrong suffered by the victim; the same was true for the old common law of torts. Thus, already in [[Roman Law|Roman law]] this delictual system of concepts had proven to be not fully adequate for the compensation of losses. Nevertheless, after the [[Reception|reception]] of Roman law, civilian lawyers could also apply the Roman actions for the purpose of compensation because the Roman concept of ''culpa levissima'' (slightest fault) made it possible for them to hold defendants responsible for damage even absent a genuine wrong or unlawful behaviour. However, at the beginning of the 19th&nbsp;century a narrower natural conception of fault ([[Natural Law|natural law]]) became dominant, also in the [[Common Law|common law]]. According to this understanding, fault expressed moral blame for committing an action which was prohibited by the law (''unerlaubte Handlung'', Christian Wolff). As a consequence of this new approach, the law could no longer distribute the risks of accidents in an appropriate way. The new industrial risks added to this impression. True, the world had not really become more dangerous as a result of these risks: coaches continued to kill much more human life than trains. But fire-sparking engines looked much more dangerous than horses, and single accidents could now cause damage of unknown extent if they destroyed not only the immediate neighbourhood but rather a whole area. In addition, the new industrial risks typically affected the workmen in industrial plants or on the trains and thus became a serious social problem.
Due to the fact that the lessee has a right ''in rem'', his position is not affected when the landlord sells the property. The lessee’s right is good also against the buyer. Thus, English law since the Middle Ages has followed the maxim ''emptio non tollit locatum—''sale does not break hire.


Most legal systems reacted to those problems by emphasizing the compensational function of tort law and by complementing the traditional instances of delictual liability with significantly diverging institutes of [[Strict Liability|strict liability]], such as the German liability for ultra-hazardous activities, which was introduced by the Prussian legislature in 1838, or the French ''gardien-''liability for ''faits des choses'', which was imposed in 1896/1930 by the judiciary. At the same time, [[Liability Insurance|liability insurance]] was introduced, and workplace accidents were directly regulated by specific insurance for workplace accidents (first in 1884 in Germany) and later also by social insurance and other labour law instruments. From the 1960s onwards, these developments resulted in a fundamental discussion concerning the functions and efficiency of private liability, which was increasingly accused of being inefficient, expensive and unfair. Indeed, private litigation often causes rather high costs, and private liability cannot cover all risks of accidents as it is limited to damages for which a defendant can be said to be responsible. At the same time, most recourse solutions are perceived as being unreasonably costly, and the preventive effects of private liability are doubtful. These effects are only of secondary relevance where the liability is insured or where the costs of accidents are normally borne by a collective no fault system. In the case of injury to persons, this is nearly always the case.
While the lease of a piece of land has long been recognized to involve conveyance of a right ''in rem'' to the tenant, the hire of movable things is a purely obligatory relationship. Hire is thus but an instance of bailment. Bailment, according to English law, covers all contracts entailing a transfer of control over a movable thing. This includes contracts for work to be performed on a thing placed under the bailee’s control by the bailor, or contracts for the safe keeping of a thing.


Nevertheless, European legislatures did not fully abolish private liability, but rather partially supplemented it with collective solutions. It is only in New Zealand where the law of torts has been largely replaced with a social insurance solution. As a result of these developments the law of torts has lost a good deal of its practical significance, but it has remained a central element of the European legal systems. This is not for functional reasons, but rather because private liability must be seen as an indispensable element of western public morality. It is an expression of what it means to be a human person, namely to bear the responsibility for the consequences of one’s actions.
=== b) The civilian tradition ===


== 3. Structures ==
Roman jurists did not have a special term for contracts according to which the temporary use of a thing was transferred to the contracting party in exchange for money. According to the Roman legal tradition ([[Roman Law|Roman law]]), lease and hire—whether relating to movable or immovable property—were instances of ''locatio conductio''. This contractual type comprised not only lease and hire, but also contracts for work and services. To the Roman jurists, the common feature of all these contracts was that something was placed by one contracting party (the ''locator'')'' ''at the disposal of the other party (the ''conductor''). In the case of contracts of lease and hire, the ''locator'' was the lessor who transferred possession of a thing to be used by the ''conductor (lessee)''. In the case of a contract for work, the ''locator'' provided the ''conductor'' with the material to work with. In terms of a contract for services, the ''locator ''placed himself at the ''conductor''’s disposal.


Every definition of extra-contractual liability includes: first, on the victim’s side, some injury, harm, loss or damage which is recognized by the law as worthy of compensation; secondly, on the defendant’s side, a specific factor justifying the attribution of the victim’s loss to the defendant’s action; and finally, a causal link ([[Causation|causation]]) between the risk or behaviour for which the defendant is responsible and the loss in question. However, it may be impossible or difficult to prove such causal relation, because the relevant facts are connected only in an abstract or statistically relevant way, one example being different producers of an identical product which caused the damage in question. In such cases, there has generally been a tendency, during the last years, of reducing the requirements concerning the proof of causation and of making the defendant only partially liable. This can be seen very clearly in the recent proposals for unifying ‘restatements’ of European tort law which have been presented, independently of one another, by the European Group on Tort Law (Art&nbsp;3:102-3:106 PETL) and by the [[Study Group on a European Civil Code]] (Art&nbsp;3:206 (1), 4:103 PEL Liab Dam). A highly innovative solution is a market share liability, where possible defendants are only liable according to their market share with regard to the damaging substance or product. However, in such a case, the group of producers is made responsible for the damage or injury in question as a collective; a market share liability cannot be seen as an expression of genuinely individual responsibility. Nevertheless, American and also some European courts have opted for such a solution, and the European Group on Tort Law has also proposed such a rule: Art&nbsp;3:103, 3:105 PETL.
The Romans must have been aware that they were dealing with three economically different types of contract. However, they persisted in treating the three forms of ''locatio conductio ''jointly. It was thus only the jurists of the [[Ius Commune|''ius commune'']] who introduced the terms ''locatio conductio rei ''(lease and hire), ''locatio conductio operis'' (contract for work) and ''locatio conductio operarum ''(service contract).  


Besides the question of [[Causation|causation]], the central structural decisions of every system of extra-contractual liability concern the description of the protected interests, on the one hand, and the relation of the traditional liability for fault to instances of [[Strict Liability|strict liability]], on the other hand. While the first decision relates to potential victims and their interests, the second decision concerns the extent of individual responsibility of potential tortfeasors. Both questions have been discussed intensively during the 19th&nbsp;and 20th&nbsp;centuries, and the relevant decisions may be understood as expressions of fundamental societal policies. Thus, French law strongly favours the victims of accidents and, thus, apparently emphasizes the political ideal of ''fraternité'' in the context of private law as well. No other legal system, outside of France, offers such a far-reaching regime of strict liability, and nowhere are judges as generous with regard to compensating purely pecuniary losses. Contrarily, the approach of the English law of torts is much more restrictive because it proceeds from the assumption that free citizens are normally themselves responsible for their wealth and luck.
As the Roman jurists were comfortable with this broad concept of ''locatio conductio'' and perceived no need to find a special term for contracts of lease and hire, they were even less inclined to introduce different terms for different forms of lease and hire. A contract was considered to be a ''locatio conductio ''irrespective of whether it concerned real or personal property. Another distinction absent from the Roman sources is the one between, on the one hand, contracts allowing the lessee to enjoy the fruits of a piece of land (usufructuary leases) and, on the other hand, contracts according to which the right to the fruits is retained by the owner while the other party is only allowed to use the land or thing in question.


Despite such differences with regard to fundamental policies, there are significant structural parallels between the different European legal systems. On the one hand, all legal systems treat different types of loss differently. Normally, a claim for damages presupposes a specific result: damage to property in the widest sense, including intellectual property, or injury to a person, including the body and the personality, or the infringement of another comparable interest. In contrast, other types of loss, especially purely pecuniary loss, cannot normally be recovered. Nevertheless, there are differences, both with regard to the doctrinal approach and with regard to the substance of the rules. Not all legal systems explicitly differentiate between different types of loss in this way, in particular the French law does not make such a distinction, as Art&nbsp;1382 ''Code civil'' appears also to include purely pecuniary loss. Nevertheless, French judges, too, are often reluctant to compensate such loss and deny claims on the basis of considerations concerning the loss, fault or causation. Conversely, under specific circumstances purely pecuniary loss will also be compensated in legal systems with a more restrictive basic approach to the law of torts. This is especially true in cases where the loss has been inflicted intentionally and contrary to basic principles of public morality, or where the defendant had assumed responsibility for the victim’s financial interests ([[Culpa in Contrahendo|''culpa in contrahendo'']]).
The Roman ''locatio conductio'' was a purely obligatory contract. It did not entail the conveyance of a right in rem to the lessee. It was therefore conceptually different from the right of usufruct (''ususfructus'') and other limited rights of use over a thing, such as for example ''superficies'' and ''emphyteusis''. While these rights serve a similar economic purpose, they were kept separate from ''locatio conductio'' in the Roman sources.


In view of these findings, the European Group on Tort Law and the [[Study Group on a European Civil Code]] have suggested compromise solutions. On the one hand, they refrain from drawing up a conclusive list of protected interests. Yet, on the other hand, they emphasize the requirement of a qualified loss or the infringement of a legally protected interest, and they lay down, in this context, lists of relevant factors which have to be considered in complex weighing processes (Art&nbsp;2:101 PEL Liab Dam; Art&nbsp;2:101&nbsp;f PETL). As a result, however, those proposals leave important questions open, such as the dividing line between non-contractual liability and contract law ([[Contract|contract]]) and they misleadingly suggest that decisions about extra-contractual liability always require a consideration of all interests of the parties. Yet, this is not correct with regard to the interests protected by tort law; many aspects, for instance, which may be important for determining the standard of care, are irrelevant with regard to the interests protected.
Due to the fact that the lessee had no right ''in rem'', he had no remedy against a third party purchaser. If the lessor conveyed the property to a third person, and that third person was unwilling to let the ''lessee ''continue using the thing, the latter was only able to bring a contractual action against the lessor. However, he had no defence against the vindicatory action of the purchaser. Thus, under Roman law, the rule was ‘sale breaks hire’ (''emptio tollit locatum'').


The second basic question of extra-contractual liability concerns the relation of the traditional law of delict or tort law to new instances of [[Strict Liability|strict liability]]. Here, most European legal systems have adopted a ‘two-track approach’, according to which the instances of strict liability stand intellectually unconnected besides the traditional liability for fault. Normally, strict liability is therefore regarded as exceptional and in need of a specific justification. However, this state of the law is increasingly seen as unsatisfactory, as the idea of a ‘two-track approach’ is intellectually and normatively misleading. It is not possible to draw a clear line between strict liability and liability for fault; rather, there is a sliding scale between instances of more or less strict liability. From a functional perspective and also in their effects, strict liability and traditional liability for fault are largely equivalent. In addition, all these liabilities are normally based on the same or similar normative considerations and policies. They are an expression of individual responsibility; at the same time negligence is often not based on genuine wrongful behaviour but rather on specifically compensation-related principles of corrective justice, such as the idea that businesses should internalize the risks of their activities, or the better insurability of risks of accidents. Apparently, the overarching normative foundation of extra-contractual liability is not the Roman concept of liability for wrongful behaviour, but rather the maxim of a comprehensive protection of basic legal rights and specific interests. Since the 16th&nbsp;century, this originally natural law idea ([[Natural Law|natural law]]) has exerted significant influence on the development of the European legal systems.
Although the Roman jurists did not come up with different names for the different types of ''locatio conductio'', they developed finely tuned rules for the contracts that would come within the definition of lease and hire today: Ulpian stated that every lessor had a general duty to hand over the property to the lessee in good condition and to maintain it in that condition throughout the term of the contract. If the ''locator ''failed to comply with this duty, the ''conductor ''was entitled to reduce the rent or—if the ''locator'' was at fault—to claim damages. For leases of land, the Roman jurists followed the rule that the contract is presumed to have been tacitly renewed if—after the expiry of its term—the lessee remains in possession of the land with the lessor’s acquiescence (''relocatio tacita''). Another rule developed by the Roman jurists for leases of land was that the lessor had a right of pledge over property that the lessee brought onto the land. Originally, this security interest had to be expressly granted by the lessee. Later, it was thought to have been implicitly granted even where there was no indication of any express grant. Finally, the Roman jurists developed the rule of ''remissio mercedis'' (reduction of the rent). Where land was leased for agricultural use and the lessee was allowed to enjoy the fruits, the rent due was reduced by operation of law in the case of crop failures.


While the [[Study Group on a European Civil Code]] holds on to the traditional structural model of extra-contractual liability irrespective of these findings, the European Group on Tort Law has tried to overcome the ‘two-track approach’. The Group aims at introducing a sliding scale between strict liability and fault, and the proposal is based on the assumption that the infringement of a legally protected interest or right is in itself an independent reason for imposing liability. Nevertheless, the Group’s [[Principles of European Tort Law (PETL)|Principles of European Tort Law]] are determined by the traditional categories of delictual liability. Thus they rest on the idea of unlawfulness being the basic and overarching reason for all liability, even if the term of unlawfulness has been avoided as far as possible. Therefore, the only doctrinal means for the PETL to formulate the sliding scale between fault and strict liability has been a reversal of the burden of proof of fault in cases of extra-hazardous activities and for business enterprises (Art&nbsp;4:201&nbsp;f PETL). Thus, the substantial question of the extent of liability depends, in an unsatisfactory manner, on the vagaries of what can be proven. Conceptually, strict liability remains rigidly separated from negligence, and it is formulated by means of narrow, special rules. Conversely, elements of strict liability did not find a doctrinal place in negligence liability. Thus, the PETL may be taken to provide a fair picture of the present state of European tort law. Although there is general agreement that it is time to overcome the traditional ‘two-track approach’, it is unclear by which means this aim can be achieved in a doctrinally and conceptually satisfactory way.
Many of the characteristics of the Roman ''locatio conductio'' were retained in the ''ius commune''. There was, however, a tendency to draw a clearer distinction between the different types of ''locatio conductio. ''The fact that the name ''locatio conductio rei'' was coined for contracts of lease and hire is the most obvious evidence of this tendency''. ''As far as leases of immovable property were concerned, security of tenancy became an important issue. Furthermore, the lawyers of the ''ius commune'' searched for ways to strengthen the lessee’s position. By the Middle Ages, it had already become accepted that the lessee under a lease exceeding ten years acquired a position similar to that of tenants holding under an ''emphyteusis'' or ''superficies—in effect, ''a right ''in rem'' was accorded to him. Medieval legal scholarship conceptualized this right as a type of inferior ownership—the ''dominium utile''. From the 17th&nbsp;century onwards, under the influence of non-Roman customary law, the view came to prevail that even a lessee under a lease for a shorter term had a right ''in rem'' which could be invoked against a third party purchaser. Thus, the older rule of ''emptio tollit locatum'' was abandoned. Like in English law, the rule thus became that sale does not break hire.


== 4. Legal unification ==
=== 2. Tendencies of legal development ===


Comparative lawyers and legal unification projects have long focused on contract law, thus relegating tort law to a secondary place; this state of affairs changed only with the work of Christian von Bar. Yet, legal unification confronts extraordinary problems in the field of extra-contractual liability. Doctrinal and conceptual commonalities can only be found in the narrow field of the traditional liability for fault (law of delict), but those common elements have proved ultimately inadequate for a modern law of extra-contractual liability. Both the [[Study Group on a European Civil Code]] and the European Group on Tort Law have therefore chosen highly innovative approaches, formulating their Principles in the form of ‘flexible systems’ (''bewegliches System'') as devised by the Austrian lawyer Walter Wilburg. However, these groups did not analyse in more detail whether and in which respects the European law of extra-contractual liability is in fact ‘flexible’, ie to which extent it rests on principles and policies that need to be weighed against each other when being applied. This indicates clearly that there is no common understanding with regard to the political, philosophical and doctrinal foundations of extra-contractual liability; hence such proposals are heavily disputed in current discussions. It is therefore far too early for taking more specific steps towards unifying the law. Fortunately, there is only exceptionally a real economic necessity for such a step. The [[European Union]], too, has therefore adopted only rather specific, narrow measures. It has unified—besides product liability (Dir&nbsp;85/374) and environmental liability (Dir&nbsp;2004/35)—only the liability of the Member States for the infringement of European precepts by these Member States (ECJ Joined Cases C-6/90 and C-9/90 – ''Francovich'' [1991] ECR I-5357) and the extra-contractual liability of the European Union itself.
The development of the law in this area in the 20th&nbsp;century is characterized by efforts to strengthen the lessee’s position further. Apart from the rule ‘sale does not break hire’, which was adopted everywhere, albeit sometimes only for immovable property, various special provisions were made in order to protect lessees. There was also a ubiquitous tendency to draw distinctions between different types of leases of land based on the characteristics and the economic function of the land or building forming the object of the lease.
 
The laws enacted as a consequence did not follow traditional distinctions. Regardless of the legal tradition on which they are based, virtually all legal systems in Europe have special regimes for residential leases—a type of lease that was not previously subject to particular provisions in either the common law or the continental legal tradition. German, French and English law also have special rules for agricultural leases. Many systems furthermore have a special regime for commercial leases.
 
Without exception, these special rules are designed to protect the lessee. The protection often entails severe restrictions of the parties’ freedom of contract. This is justified by the difficult situation of a tenant who—after the end of his lease—needs to find a new location for his private or business life. The cost of relocation provides a strong incentive for tenants under residential, agricultural, and commercial leases alike to accept monetary and other demands on the part of the lessor, even if those demands would not otherwise be sustainable on the market.
 
Conversely, the law regulating leases of movables was less dynamic. [[Leasing|Leasing]] contracts emerged in all European systems as special types of leases involving primarily movable property. Apart from this important development, the tendency to provide special regimes for certain types of objects of lease can equally be detected in the area of movable property. The [[Charter Party|charter party]] thus developed independently of the general law of lease and hire and as a special type of commercial contract. The charter party occupies a middle ground between a standard lease and a contract for services. Its place within contractual taxonomy is contentious in many systems. Today, some legal systems also have special rules for leases of aircraft. However, while the special regimes for leases of immovable property invariably tend to strengthen the position of the lessee, the purpose of the special regimes in the area of movable objects of lease is not to benefit one party at the expense of the other, but to provide a balanced solution for the specific issues arising under such contracts.
 
The range of possible objects is not always restricted to a single, corporeal entity. Many European systems accept leases of a business as such or other aggregates of things and intangible assets. Such leases are—at least in principle—governed by the standard provisions for lease contracts. Frequently, intellectual property rights and similar legal positions are also accepted as objects of lease contracts.
 
== 3. The regime of lease and hire in detail ==
 
To the extent that modern legal systems are based on the civilian tradition, they share common features deriving from that tradition. Thus the lessor’s duty to maintain the object of the lease in proper condition throughout the term of the lease, the possibility to reduce the rent in the event of defects of the object, the possibility of a tacit renewal of the lease, and the lessor’s right of pledge over the lessee’s property can be found in many legal systems. Except for the lessor’s right of pledge, these rules are usually applicable to leases of movable and immovable property alike. The various special provisions regulating leases of immovable property have already been mentioned. Some of them had already been introduced at the beginning of the 20th&nbsp;century.
 
In addition, a strong level of protection for residential tenants is part of the common core of European private law. The pertinent norms usually provide for some protection against the termination of the lease and against demands for rent increases.
 
=== a) Protection against termination of the lease ===
 
As far as the tenant’s protection against the termination of the lease by the landlord is concerned, there are notable differences regarding both the level of protection and the means employed to protect the tenant. In the United Kingdom, an important distinction is made between leases from private landlords and leases from local authorities or Registered Social Landlords. Protection for tenants from private landlords is relatively weak. A private landlord is entitled to terminate a residential lease after a minimum duration of only six months. In Germany, there is usually no fixed term for residential leases. The lease can be terminated by giving notice but only when the termination can be justified by one of the grounds fixed by statute. Such grounds are, for example, the landlord’s need to use the residential property for himself or the violation of contractual terms by the tenant. Other countries have similar rules, but they can often be circumvented by concluding a lease for a fixed term. This is not possible under German law because special grounds similar to those necessary for the valid termination of an open-ended lease are required for the conclusion of a fixed-term lease agreement. French law follows a different paradigm: residential leases are always concluded for a fixed term. The duration of the fixed term is prescribed by law. It is three years if the landlord is a natural person. If it is a corporate entity, the term is six years. After that time, the lease ends unless it is—expressly or tacitly—renewed. A special ground is only required if the landlord wishes to terminate the lease before the end of the fixed term. In Italy, too, there is a compulsory fixed term (of two or four years). If at the end of the term there are no grounds justifying the termination of the lease, it is renewed for a further two or three years. After this second fixed term, the landlord is free to terminate the lease.
 
=== b) Rent control ===
 
Similar differences exist in the area of rent control. In some countries, rent control laws are only applicable to leases of government financed housing, or they restrict the permissible rent only during a fixed term of years. In some cases, rent control statutes govern only increases of the rent during the lease (eg in England, as far as private landlords are concerned); in other countries, the initial rent agreement between landlord and tenant is also subject to government control (this is the case in Germany, although the provisions regarding subsequent increases are much more rigid than those against excessively high rent agreements which are made at the outset of the contractual relationship). The mechanisms used to calculate the permissible rent also vary greatly. In some countries, no detailed legal guidelines exist and the determination is left to the judge (France) or to a government agency. In other countries, the relevant factors are legally fixed with varying degrees of precision. Frequently, the law requires the rent to be within the boundaries set by a local rent index.
 
=== c) Further provisions for the protection of residential tenants ===
 
There are also some common features of the law of residential leases which do not concern the areas of security of tenure and rent control. These common features are reflections of a similar social development throughout Europe. In many legal systems, tenants now have the right to share their house or flat with a homo- or heterosexual partner to whom they are not married even without the landlord’s consent. Provisions allowing the unmarried partner of a deceased tenant to step in and continue the lease are also frequently encountered. These rules are designed to ensure that tenants may organize their private lives as they see fit. If the tenant wishes to take in additional inhabitants under a subleasing arrangement, stricter rules apply. The landlord is—at least under certain circumstances—entitled to prohibit the sublease or to withhold his consent.
 
=== d) Protection for lessees outside the area of residential leases ===
 
Many legal systems contain provisions for agricultural and commercial tenants that afford a level of protection similar to the one granted to residential tenants. In the case of commercial leases, the protection against the termination of the lease and against unjustified demands for rent increases is as important as in the context of residential leases. In addition, in some systems the tenant may claim compensation from the landlord even when the landlord has a legal right to terminate. There are, however, major differences regarding the prerequisites and the contents of such claims.
 
Similar provisions limiting the landlord’s right to terminate as well as the permissible amount of rent, and allowing a claim for compensation in the case of termination exist in the area of agricultural leases. In many legal systems, the old institution of ''remissio mercedis'' (reduction of the rent) in the event of crop failures has survived as an additional means to protect agricultural tenants.
 
== 4. Towards a European law of lease and hire ==
 
So far, the core areas of the law of lease and hire have hardly been touched by the various projects for a unification of [[European Private Law|European private law]]. Existing European regulations and directives have almost no direct impact on the law of lease and hire. The only exception is Art&nbsp;3(1)(h) of the Anti-discrimination Directive (Dir&nbsp;2000/43), which prohibits any discrimination based on race and ethnic origin in the context of concluding residential lease agreements. Apart from this special provision, the general provisions on contract law, including eg the norms of Dir&nbsp;93/13 on unfair terms in consumer contracts, are applicable to lease agreements. The same is true of the European Convention on Human Rights and, in particular, Art&nbsp;8. European measures to promote housing construction have only an indirect effect on the law of residential leases.
 
The Principles of European Law on the Lease of Goods—mentioned at the outset of this article—are to be noted as the first set of model rules in the area of lease law. Although these Principles, which have now been integrated into the [[Common Frame of Reference (CFR)]] as Book IV.B, do not address issues regarding leases of immovable property, many of the traditional provisions originally developed for leases of immovables have found their way into this text. The rule of'' relocatio tacita'' was incorporated into Art&nbsp;2:103, while the lessor’s duty to maintain the object of the lease in proper condition found its way into Art&nbsp;3:104. Article&nbsp;4:104 gives the lessee the right to reduce the rent in the event of defects. Article&nbsp;7:103 states that the lessor’s agreement is needed to conclude a sublease. The venerable rule ‘sale does not break hire’ is enshrined in Art&nbsp;7:101.


==Literature==
==Literature==
Guido Calabresi, ''The Costs of Accidents'' (1970); Reinhard Zimmermann, ''The Law of Obligations'' (1990) 902–1142; Christian von Bar, ''The Common European Law of Torts'' (1998/ 2000); David J Ibbetson, ''A Historical Introduction to the Law of Obligations'' (1999) 39–70, 95–125, 155–201; Tony Honoré, ''Responsibility and Fault'' (1999); Nils Jansen, ''Die Struktur des Haftungsrechts. Geschichte'','' Theorie und Dogmatik außervertraglicher Ansprüche auf Schadensersatz'' (2003); Reinhard Zimmermann (ed), ''Grundstrukturen des Europäischen Deliktsrechts'' (2003); Wolfgang Wurmnest, ''Grundzüge eines europäischen Haftungsrechts'' (2003); Reinhard Zimmermann, ‘Principles of European Contract Law and Principles of European Tort Law: Comparison and Points of Contact’ in Helmut Koziol and Barbara Steininger (eds), ''European Tort Law 2003'' (2004) 2; Nils Jansen, ‘Duties and Rights in Negligence: A Comparative and Historical Perspective on the European Law of Extracontractual Liability’ (2004) 24 Oxford J Legal Stud 443; Nils Jansen, ‘Principles of European Tort Law? Grundwertungen und Systembildung im europäischen Haftungsrecht’ (2006) 70 RabelsZ 732; Cees van Dam, ''European Tort Law'' (2006).</div>
Klaus Genius, ''Der Bestandsschutz in seiner historischen Entwicklung bis zu den Naturrechtskodifikationen'' (1972); Eltjo Schrage, ‘Zur mittelalterlichen Geschichte des Grundsatzes “Kauf bricht nicht Miete”’ in Eltjo Schrage (ed), ''Das römische Recht im Mittelalter'' (1987) 281&nbsp;ff; Reinhard Zimmermann, ''The Law of Obligations'' (1996) 338&nbsp;ff; Johannes Stabentheiner (ed), ''Mietrecht in Europa'' (1996); Marie Pierre Bagnéris, ''Le loyer du bail commercial'' (1997); Sebastian Wulff, ''Kündigungsschutz und Mietzins im Gewerberaummietrecht Europas'' (2001); Hans Hattehauer, ‘Bricht Miete Kauf?’ in ''Gedächtnisschrift Jürgen Sonnenschein'' (2003) 153–79; Paul du Plessis, ''A History of Remissio Mercedis and Related Legal Institutions'' (2003); John Baker, ''The Oxford History of the Laws of England'', ''vol&nbsp;6'','' 1483–1558'' (2003) 631&nbsp;ff; Christoph&nbsp;U Schmid (ed), ''Tenancy Law and Procedure in Europe'', preliminary version 2004: <www.iue.it/LAW/ResearchTeaching/ EuropeanPrivateLaw/tenancyLaw.shtml>; Kåre Lilleholt, ‘A European Law of Lease?’ in Antoni Vaquer (ed), ''European private law beyond the common frame of reference'':'' essays in honour of Reinhard Zimmermann'' (2008) 55–64.</div>




[[Category:A–Z]]
[[Category:A–Z]]
[[de:Deliktsrecht:_Allgemeines_und_lex_Aquilia]]
[[de:Miete_und_Pacht]]

Latest revision as of 18:39, 5 June 2025

by Thomas Rüfner

1. Lease and hire within the system of private law

Under a contract of lease or hire, the owner of a thing (or another person with equivalent powers) may grant the other contracting party the use of that thing for a certain period of time in exchange for a certain amount of money. Like contracts of sale, lease and hire contracts respond to fundamental economic needs and are provided for in most systems of private law.

The terminology used in this area is not always consistent. In the common law tradition, the arrangement under which one party may use a piece of land in exchange for money is called ‘lease’, whereas ‘hire’ is the common term for arrangements concerning movable property. The Study Group on a European Civil Code drafted Principles of European Law for what it called the ‘Lease of Goods’. In the present entry, the terms ‘lease’, ‘lessor’ and ‘lessee’ will thus be used indiscriminately for contracts concerning both movable and immovable property. The terms ‘landlord’ and ‘tenant’ will occasionally be used as far as leases of immovable property are concerned.

a) English law

The distinction between real and personal property has played a fundamental role in the development of English law. The history of contracts for the temporary use of land is very different from the history of contracts for the temporary use of a movable thing.

Originally, leases involved a contractual relationship between landlord and tenant. However, as early as the Middle Ages, English lawyers devised remedies for the protection of tenants entitled to the possession of a piece of land for a term of years against interference by the landlord or any third party. The action of ejectment, which was the tenant’s remedy against eviction by third parties, allowed for the recovery of the land in specie and was not restricted to damages. Thus, the position of the termor (lessee) gradually became similar to that of a freeholder. The lessee came to be regarded as the holder of a right in rem. Despite the fact that even to this day the lessee’s right to possession retains some characteristics of personal property, it was then classified as an estate in land. It is therefore oxymoronically classified as a chattel real.

Due to the fact that the lessee has a right in rem, his position is not affected when the landlord sells the property. The lessee’s right is good also against the buyer. Thus, English law since the Middle Ages has followed the maxim emptio non tollit locatum—sale does not break hire.

While the lease of a piece of land has long been recognized to involve conveyance of a right in rem to the tenant, the hire of movable things is a purely obligatory relationship. Hire is thus but an instance of bailment. Bailment, according to English law, covers all contracts entailing a transfer of control over a movable thing. This includes contracts for work to be performed on a thing placed under the bailee’s control by the bailor, or contracts for the safe keeping of a thing.

b) The civilian tradition

Roman jurists did not have a special term for contracts according to which the temporary use of a thing was transferred to the contracting party in exchange for money. According to the Roman legal tradition (Roman law), lease and hire—whether relating to movable or immovable property—were instances of locatio conductio. This contractual type comprised not only lease and hire, but also contracts for work and services. To the Roman jurists, the common feature of all these contracts was that something was placed by one contracting party (the locator) at the disposal of the other party (the conductor). In the case of contracts of lease and hire, the locator was the lessor who transferred possession of a thing to be used by the conductor (lessee). In the case of a contract for work, the locator provided the conductor with the material to work with. In terms of a contract for services, the locator placed himself at the conductor’s disposal.

The Romans must have been aware that they were dealing with three economically different types of contract. However, they persisted in treating the three forms of locatio conductio jointly. It was thus only the jurists of the ius commune who introduced the terms locatio conductio rei (lease and hire), locatio conductio operis (contract for work) and locatio conductio operarum (service contract).

As the Roman jurists were comfortable with this broad concept of locatio conductio and perceived no need to find a special term for contracts of lease and hire, they were even less inclined to introduce different terms for different forms of lease and hire. A contract was considered to be a locatio conductio irrespective of whether it concerned real or personal property. Another distinction absent from the Roman sources is the one between, on the one hand, contracts allowing the lessee to enjoy the fruits of a piece of land (usufructuary leases) and, on the other hand, contracts according to which the right to the fruits is retained by the owner while the other party is only allowed to use the land or thing in question.

The Roman locatio conductio was a purely obligatory contract. It did not entail the conveyance of a right in rem to the lessee. It was therefore conceptually different from the right of usufruct (ususfructus) and other limited rights of use over a thing, such as for example superficies and emphyteusis. While these rights serve a similar economic purpose, they were kept separate from locatio conductio in the Roman sources.

Due to the fact that the lessee had no right in rem, he had no remedy against a third party purchaser. If the lessor conveyed the property to a third person, and that third person was unwilling to let the lessee continue using the thing, the latter was only able to bring a contractual action against the lessor. However, he had no defence against the vindicatory action of the purchaser. Thus, under Roman law, the rule was ‘sale breaks hire’ (emptio tollit locatum).

Although the Roman jurists did not come up with different names for the different types of locatio conductio, they developed finely tuned rules for the contracts that would come within the definition of lease and hire today: Ulpian stated that every lessor had a general duty to hand over the property to the lessee in good condition and to maintain it in that condition throughout the term of the contract. If the locator failed to comply with this duty, the conductor was entitled to reduce the rent or—if the locator was at fault—to claim damages. For leases of land, the Roman jurists followed the rule that the contract is presumed to have been tacitly renewed if—after the expiry of its term—the lessee remains in possession of the land with the lessor’s acquiescence (relocatio tacita). Another rule developed by the Roman jurists for leases of land was that the lessor had a right of pledge over property that the lessee brought onto the land. Originally, this security interest had to be expressly granted by the lessee. Later, it was thought to have been implicitly granted even where there was no indication of any express grant. Finally, the Roman jurists developed the rule of remissio mercedis (reduction of the rent). Where land was leased for agricultural use and the lessee was allowed to enjoy the fruits, the rent due was reduced by operation of law in the case of crop failures.

Many of the characteristics of the Roman locatio conductio were retained in the ius commune. There was, however, a tendency to draw a clearer distinction between the different types of locatio conductio. The fact that the name locatio conductio rei was coined for contracts of lease and hire is the most obvious evidence of this tendency. As far as leases of immovable property were concerned, security of tenancy became an important issue. Furthermore, the lawyers of the ius commune searched for ways to strengthen the lessee’s position. By the Middle Ages, it had already become accepted that the lessee under a lease exceeding ten years acquired a position similar to that of tenants holding under an emphyteusis or superficies—in effect, a right in rem was accorded to him. Medieval legal scholarship conceptualized this right as a type of inferior ownership—the dominium utile. From the 17th century onwards, under the influence of non-Roman customary law, the view came to prevail that even a lessee under a lease for a shorter term had a right in rem which could be invoked against a third party purchaser. Thus, the older rule of emptio tollit locatum was abandoned. Like in English law, the rule thus became that sale does not break hire.

2. Tendencies of legal development

The development of the law in this area in the 20th century is characterized by efforts to strengthen the lessee’s position further. Apart from the rule ‘sale does not break hire’, which was adopted everywhere, albeit sometimes only for immovable property, various special provisions were made in order to protect lessees. There was also a ubiquitous tendency to draw distinctions between different types of leases of land based on the characteristics and the economic function of the land or building forming the object of the lease.

The laws enacted as a consequence did not follow traditional distinctions. Regardless of the legal tradition on which they are based, virtually all legal systems in Europe have special regimes for residential leases—a type of lease that was not previously subject to particular provisions in either the common law or the continental legal tradition. German, French and English law also have special rules for agricultural leases. Many systems furthermore have a special regime for commercial leases.

Without exception, these special rules are designed to protect the lessee. The protection often entails severe restrictions of the parties’ freedom of contract. This is justified by the difficult situation of a tenant who—after the end of his lease—needs to find a new location for his private or business life. The cost of relocation provides a strong incentive for tenants under residential, agricultural, and commercial leases alike to accept monetary and other demands on the part of the lessor, even if those demands would not otherwise be sustainable on the market.

Conversely, the law regulating leases of movables was less dynamic. Leasing contracts emerged in all European systems as special types of leases involving primarily movable property. Apart from this important development, the tendency to provide special regimes for certain types of objects of lease can equally be detected in the area of movable property. The charter party thus developed independently of the general law of lease and hire and as a special type of commercial contract. The charter party occupies a middle ground between a standard lease and a contract for services. Its place within contractual taxonomy is contentious in many systems. Today, some legal systems also have special rules for leases of aircraft. However, while the special regimes for leases of immovable property invariably tend to strengthen the position of the lessee, the purpose of the special regimes in the area of movable objects of lease is not to benefit one party at the expense of the other, but to provide a balanced solution for the specific issues arising under such contracts.

The range of possible objects is not always restricted to a single, corporeal entity. Many European systems accept leases of a business as such or other aggregates of things and intangible assets. Such leases are—at least in principle—governed by the standard provisions for lease contracts. Frequently, intellectual property rights and similar legal positions are also accepted as objects of lease contracts.

3. The regime of lease and hire in detail

To the extent that modern legal systems are based on the civilian tradition, they share common features deriving from that tradition. Thus the lessor’s duty to maintain the object of the lease in proper condition throughout the term of the lease, the possibility to reduce the rent in the event of defects of the object, the possibility of a tacit renewal of the lease, and the lessor’s right of pledge over the lessee’s property can be found in many legal systems. Except for the lessor’s right of pledge, these rules are usually applicable to leases of movable and immovable property alike. The various special provisions regulating leases of immovable property have already been mentioned. Some of them had already been introduced at the beginning of the 20th century.

In addition, a strong level of protection for residential tenants is part of the common core of European private law. The pertinent norms usually provide for some protection against the termination of the lease and against demands for rent increases.

a) Protection against termination of the lease

As far as the tenant’s protection against the termination of the lease by the landlord is concerned, there are notable differences regarding both the level of protection and the means employed to protect the tenant. In the United Kingdom, an important distinction is made between leases from private landlords and leases from local authorities or Registered Social Landlords. Protection for tenants from private landlords is relatively weak. A private landlord is entitled to terminate a residential lease after a minimum duration of only six months. In Germany, there is usually no fixed term for residential leases. The lease can be terminated by giving notice but only when the termination can be justified by one of the grounds fixed by statute. Such grounds are, for example, the landlord’s need to use the residential property for himself or the violation of contractual terms by the tenant. Other countries have similar rules, but they can often be circumvented by concluding a lease for a fixed term. This is not possible under German law because special grounds similar to those necessary for the valid termination of an open-ended lease are required for the conclusion of a fixed-term lease agreement. French law follows a different paradigm: residential leases are always concluded for a fixed term. The duration of the fixed term is prescribed by law. It is three years if the landlord is a natural person. If it is a corporate entity, the term is six years. After that time, the lease ends unless it is—expressly or tacitly—renewed. A special ground is only required if the landlord wishes to terminate the lease before the end of the fixed term. In Italy, too, there is a compulsory fixed term (of two or four years). If at the end of the term there are no grounds justifying the termination of the lease, it is renewed for a further two or three years. After this second fixed term, the landlord is free to terminate the lease.

b) Rent control

Similar differences exist in the area of rent control. In some countries, rent control laws are only applicable to leases of government financed housing, or they restrict the permissible rent only during a fixed term of years. In some cases, rent control statutes govern only increases of the rent during the lease (eg in England, as far as private landlords are concerned); in other countries, the initial rent agreement between landlord and tenant is also subject to government control (this is the case in Germany, although the provisions regarding subsequent increases are much more rigid than those against excessively high rent agreements which are made at the outset of the contractual relationship). The mechanisms used to calculate the permissible rent also vary greatly. In some countries, no detailed legal guidelines exist and the determination is left to the judge (France) or to a government agency. In other countries, the relevant factors are legally fixed with varying degrees of precision. Frequently, the law requires the rent to be within the boundaries set by a local rent index.

c) Further provisions for the protection of residential tenants

There are also some common features of the law of residential leases which do not concern the areas of security of tenure and rent control. These common features are reflections of a similar social development throughout Europe. In many legal systems, tenants now have the right to share their house or flat with a homo- or heterosexual partner to whom they are not married even without the landlord’s consent. Provisions allowing the unmarried partner of a deceased tenant to step in and continue the lease are also frequently encountered. These rules are designed to ensure that tenants may organize their private lives as they see fit. If the tenant wishes to take in additional inhabitants under a subleasing arrangement, stricter rules apply. The landlord is—at least under certain circumstances—entitled to prohibit the sublease or to withhold his consent.

d) Protection for lessees outside the area of residential leases

Many legal systems contain provisions for agricultural and commercial tenants that afford a level of protection similar to the one granted to residential tenants. In the case of commercial leases, the protection against the termination of the lease and against unjustified demands for rent increases is as important as in the context of residential leases. In addition, in some systems the tenant may claim compensation from the landlord even when the landlord has a legal right to terminate. There are, however, major differences regarding the prerequisites and the contents of such claims.

Similar provisions limiting the landlord’s right to terminate as well as the permissible amount of rent, and allowing a claim for compensation in the case of termination exist in the area of agricultural leases. In many legal systems, the old institution of remissio mercedis (reduction of the rent) in the event of crop failures has survived as an additional means to protect agricultural tenants.

4. Towards a European law of lease and hire

So far, the core areas of the law of lease and hire have hardly been touched by the various projects for a unification of European private law. Existing European regulations and directives have almost no direct impact on the law of lease and hire. The only exception is Art 3(1)(h) of the Anti-discrimination Directive (Dir 2000/43), which prohibits any discrimination based on race and ethnic origin in the context of concluding residential lease agreements. Apart from this special provision, the general provisions on contract law, including eg the norms of Dir 93/13 on unfair terms in consumer contracts, are applicable to lease agreements. The same is true of the European Convention on Human Rights and, in particular, Art 8. European measures to promote housing construction have only an indirect effect on the law of residential leases.

The Principles of European Law on the Lease of Goods—mentioned at the outset of this article—are to be noted as the first set of model rules in the area of lease law. Although these Principles, which have now been integrated into the Common Frame of Reference (CFR) as Book IV.B, do not address issues regarding leases of immovable property, many of the traditional provisions originally developed for leases of immovables have found their way into this text. The rule of relocatio tacita was incorporated into Art 2:103, while the lessor’s duty to maintain the object of the lease in proper condition found its way into Art 3:104. Article 4:104 gives the lessee the right to reduce the rent in the event of defects. Article 7:103 states that the lessor’s agreement is needed to conclude a sublease. The venerable rule ‘sale does not break hire’ is enshrined in Art 7:101.

Literature

Klaus Genius, Der Bestandsschutz in seiner historischen Entwicklung bis zu den Naturrechtskodifikationen (1972); Eltjo Schrage, ‘Zur mittelalterlichen Geschichte des Grundsatzes “Kauf bricht nicht Miete”’ in Eltjo Schrage (ed), Das römische Recht im Mittelalter (1987) 281 ff; Reinhard Zimmermann, The Law of Obligations (1996) 338 ff; Johannes Stabentheiner (ed), Mietrecht in Europa (1996); Marie Pierre Bagnéris, Le loyer du bail commercial (1997); Sebastian Wulff, Kündigungsschutz und Mietzins im Gewerberaummietrecht Europas (2001); Hans Hattehauer, ‘Bricht Miete Kauf?’ in Gedächtnisschrift Jürgen Sonnenschein (2003) 153–79; Paul du Plessis, A History of Remissio Mercedis and Related Legal Institutions (2003); John Baker, The Oxford History of the Laws of England, vol 6, 1483–1558 (2003) 631 ff; Christoph U Schmid (ed), Tenancy Law and Procedure in Europe, preliminary version 2004: <www.iue.it/LAW/ResearchTeaching/ EuropeanPrivateLaw/tenancyLaw.shtml>; Kåre Lilleholt, ‘A European Law of Lease?’ in Antoni Vaquer (ed), European private law beyond the common frame of reference: essays in honour of Reinhard Zimmermann (2008) 55–64.

Retrieved from Law of Torts/Delict, General and Lex Aquilia – Max-EuP 2012 on 28. July 2025.

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