purchaser a good title, until the true owner has prosecuted the thief to conviction.1

Sect. 2.-Contract of Hiring.

contract.

This contract is of two kinds-the hiring of things and Nature of the hiring of work or service. The hiring of things is a contract by which one of the parties engages to give the use of a thing to the other for a limited time in consideration of a certain rent or hire. The hiring of work is a contract by which one of the parties engages to do something for another for a certain hire. In both cases the contract is perfected by consent, and bears a close affinity to sale.2

things.

1. Hiring of Things. All sorts of things which are the Hiring of subject of commerce, whether movable or immovable, may generally be let for hire. But things which are consumed in the use that is made of them, such as current money, coin, wine, and the like, though they may be sold, are not suitable for hiring.

lands and

Leases of lands and houses are granted for a limited term Leases of agreed upon between the parties. Among the Romans the houses. usual term for a lease of land was the lustrum of five years. If there was no stipulation to the contrary, the engagements formed by the contract passed to the representatives of both parties, and the lessee might sublet to another.

of lessor.

The principal obligations of the lessor are-1st, To put the Obligations lessee in possession of the subject; 2d, To deliver it in a proper state of repair, and to maintain it in such a condition that it may be fit for the purpose for which it is let; and, 3d, To guarantee the peaceable enjoyment to the lessee during the currency of the term agreed upon. The tenant of houses is called inquilinus, and the tenant of lands colonus.3

of lessee.

There was this peculiarity in a lease of houses, that the obligations lessee was bound to quit possession whenever the proprietor wanted the premises for his own occupation.*

1 7 & 8 G. IV. c. 29, s. 57. Smith's and 70.

Mer. Law, 6th ed., 486.

3 Maynz, § 299.

2 I. 3. 25. D. 19. 2. C. 4. 65

4 Ibid. § 300. C. 4. 65. 3.

P

Obligations

of lessee.

Tacit relocation.

As hiring only gave rise to a simple personal obligation, a purchaser of the subject let was not bound by the lease; he could eject the lessee, who could only claim indemnity from the lessor under the warranty. To obviate this result, it was usual to stipulate in a sale that the purchaser should be bound by the current leases.

The lessee is bound to use the subject well, to put it to no other use than that for which it was let, to preserve it in good condition, and restore it at the end of the term. He is answerable for culpa levis, but not for loss occasioned by inevitable accidents.

The principal obligation of the lessee is to pay the rent or hire at the stipulated periods. The hire is generally fixed to be paid in current money, but when lands are let the rent may consist of a portion of the fruits or produce. The fruits of the ground are hypothecated to the proprietor for the rent of land, and there is a similar hypothec over the tenant's movables for the rent of houses. When two years' rents fall into arrear, the tenant may be ejected. The tenant of a farm is entitled to a remission of his rent if his whole crop is destroyed by an extraordinary and unforeseen accident, such as an inundation, or a hostile irruption in time of war; but if, during the remaining years of the lease, the loss so sustained is compensated by extraordinary fertility, the tenant is bound to pay the sum previously remitted.1

The contract of hiring usually terminated at the expiry of the stipulated term. If the tenant was allowed to continue in possession after the term, this was construed into a tacit renewal of the lease from year to year, or for such other period as might correspond with the nature of the subject let. All the ordinary conditions of the lease were held to be renewed in tacit relocation, but the obligation of a surety could not be extended in this manner. The contract also came to an end by the loss or destruction of the subject. And the lessee might be ejected before the lapse of the term, not only for non-payment of his rent, but also for damaging the premises or making a bad use of them in any way.

1 Maynz, § 299, 300. D. 19. 2. 15. 2. Compare with French Civil Code, art. 1769, 1770.

Two rights, partaking in some degree of the nature of leases, but of a more permanent character, called Emphyteusis and Superficies, have already been noticed.

work or

2. Hiring of Work or Service.-Most of the general princi- Hiring of ples which regulate the hiring of things apply to the hiring services. of work or service. To distinguish between hiring and sale, Justinian lays down this rule: If a workman furnish all the materials, as well as the work, for a certain price-as, for instance, if a silversmith should undertake to make a piece of plate and to supply the silver for a certain sum-this resolves into sale, not hiring; but if silver be given to the artificer, and he is required to furnish the workmanship only, this is locatio operis. When a builder contracts to erect a house on your ground and to furnish the materials, this also is location; because the ground, which is the principal subject, belongs to you, and the building follows it as an accessory,-edificium solo cedit.2

The person who undertakes to execute a piece of work must perform it in a proper manner and within the time agreed upon. He is bound to bestow upon it due care and skill; and if, from negligence or ignorance, the work is defective or useless, he is liable in damages to his employer. No man should undertake a work which he is not fully qualified to perform. Imperitia culpæ enumeratur.

When a contractor undertakes a work aversione—that is, to be delivered as a whole after it is completed-the risk does not pass to the employer till it is finished and approved of. But when the work is to be performed by the piece, or by measurement as it advances, the risk of what is executed passes to the employer as soon as it is received and measured.3

As to the hiring of common labourers or servants, little need here be said. Their rights and obligations, and the kind and quantity of work to be required of them, involve many particulars which, so far as not expressly fixed by contract, must be determined, in a great measure, by custom.

1 I. 3. 25. 4.

2 Pothier, Contrat du Louage,

part vii. c. i.

3 D. 19. 2. 36. Florentinus.

Sect. 3.-Partnership.

I-ROMAN LAW.

How partnership

Partnership is a contract whereby two or more persons

constituted. agree to combine property or labour in a common stock for the sake of sharing the gain. There may be partnership in one transaction as well as in a general business. The contract is perfected by consent; and the capital contributed by the partners may be equal or unequal, and may consist of property or labour or both. One of them may furnish money and the other skill or labour alone.1

Rights of partners.

Liabilities of partners.

If there be no express agreement on the matter, the shares of profit and loss are divided among the partners equally, but this is generally provided for by the contract. One partner may stipulate for two-thirds of the profit and to bear only one-third of the loss, or even to participate in the profit and to be entirely free from loss; and these stipulations will hold good as between himself and the other partners, whatever liability he may incur to strangers. But an agreement that one should take all the profit and the other bear all the loss, which is called societas leonina, is invalid. If profit has been obtained in one branch of business and a loss has been suffered in another, the whole transactions must be taken into account in striking the balance of profit or loss.2

A partner is bound to exercise the same care and diligence in the business of the company as he does in his own private affairs, and he is answerable to his copartners for loss arising from negligence. He is not liable for loss by fire or robbery or other inevitable accidents. The acts of one partner are not binding on the rest, if he act without authority or beyond the scope of the partnership; but where there is no such excess of power, his acts on account of the partnership bind the whole partners for profit or loss. A contract made by a partner as an individual, and on his own account, cannot affect the partnership. So, if a partner admit another person

1 I. 3. 25. D. 17. 2. C. 4. 37.

2 L. 3. 25. 1, 2.

to participate in his share of the profits, this stranger does not become a member of the company in any question with the other partners, nam socii mei socius, socius meus non est.1

If one of the partners has advanced money, or entered into some engagement on account of the partnership, and for which it is bound to indemnify him, each of the partners. must contribute to the indemnity in proportion to his share in the concern; and if any of them become insolvent, the solvent shareholders must make up the deficiency according to their respective interests.2

Partnership is dissolved by the expiry of the time for which Dissolution. the contract was made; by mutual consent of the parties; by one of the partners retiring, especially when no term is fixed, provided this is not done fraudulently or in a way to injure the others; and, lastly, by the death or bankruptcy of any of the partners.3

II.-FRENCH LAW.

The French law distinguishes three principal kinds of com- Different mercial partnerships. 1st, Partnership en nom collectif is kinds of partnership that which is carried on by two or more persons under a in France. social firm, each partner being liable for the whole engagements of the company. 2d, Partnership en commandité is that which is contracted between one or more partners whose responsibility is unlimited, and one or more persons who are merely money-lenders, and are not liable for any loss beyond the funds lent to the company. Only the proper responsible partners can take part in the conduct of the business. 3d, Anonymous partnership (société anonyme) is that which has no social firm, but is merely distinguished by the nature of the enterprise; it can only be established by the authority of Government; the management is conducted by the agents of the company; the shares are transferable, and the holders' liability for loss is limited to the amount of their capital in the concern. Besides these three kinds of partnership, the French law recognises joint adventures between two or more

1 D. 17. 2. 20.

2 D. 17. 2. 67.

3 I. 3. 25. 4-8.