Bracton and his Relation to the Roman Civil Law. which is not subject to sale, the sale is not valid, and therefore he may proceed against the vendor; and he adds : " Quatenus sua interfuit non fuisse deceptum," — almost the words of the Institutes, " Quod sua interest, eum deceptum non esse "(Inst. 3, tit. 24, § V). The tenses only are changed; the verbs are the same. The warranties which Bracton says the vendor and his heirs are bound to make in cases of sale are to be considered hereafter. Bracton next treats of letting and hiring (" de Locatio et Conductio,") which he says is next to " emptio et venditio," because as emptio et venditio are contracted so soon as the price is agreed upon, so it is " in locatio et conductio " (fol. 62). The twenty-fifth title of the third book of the Institutes commences in the same manner, almost in the same words. He declares that when any one lets his thing, whether movable or immovable, to another person, for a certain time, for a certain rent, the locator is bound to give the use of the thing leased to the conductor; and the con ductor is bound to pay the rent (inerx); and if the thing let and hired is an immovable, as a house, and such-like things, everything brought into or placed in the house will be bound for the rent, the same as in cases of pledge. The same principle is laid down in the Pandects (book 20, tit. 2, 1. 2). He fur ther says that if nothing is found on the leased premises, then resort may be had to the bodies of the tenants, if they can be found, in order that the lessor may require security, if none was provided in the begin ning; but if the bodies cannot be found, the lessor may impute it to his own negligence and want of skill that he did not require se curity for his rent. And he adds that if any one should be tenant (tenens) either for life or in fee, and did not pay his rent to his landlord (dotninus), he could be proceeded with by making distress. Here a distinction must be observed, as it is under the feudal law that this distress is made. In the former
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cases the lessor is called locator; here he is called dominus, a feudal lord. There the lessee is called conductor; here he is called tenens, one holding under a feudal lord. In the former case the rent is called tnerces, in the latter it is called redditus; showing that the law of letting and hiring was derived from the Roman law, and the law of tenant for life or in fee of feudal lands was derived from the feudal law. On the death of the lessee (conductor) before the expiration of the lease, his heir succeeded to his rights, unless the lessee during his lifetime or at death provided otherwise. When the lease expired during the life of the lessee, the lessor could put himself in possession if he found the thing vacant. Whoever hires garments or orna ments or gold or silver, or work cattle for use and for hire, while he has the custody of the things leased, will be required to use the same care as the most diligent pater familias; and if he shows such care, he will not be responsible for the loss, but it will not be sufficient for him to show that he took the same care of the leased thing that he did of his own property, unless that was the care above mentioned. The principles, the phrases, and in most cases, the words used by Bracton in this chapter are those of the civil law. In the civil law under this title " locatio et conductio," the emphyteu sis is properly treated of; but this sort of lease is omitted by Bracton, no doubt be cause of its similarity, or rather identity, to the feudal tenures, and is included in them as an estate in land. The emphyteusis was a perpetual lease of land on payment of an annual rent; and so long as the conductor paid the stipulated rent, the locator could never retake the land; but failure to pay the rent forfeited the lease. This contract in some respects resembled a sale, and in oth ers a lease. Such was the notion of the feudal tenures.
