Classification and structure of 'locatio-conductio' in Roman law and Maltese law

Abstract

There is no clear classification of Locatio-Conductio in the Roman texts. On the other hand, the classification of LC in Maltese law is clearly set out in the Code. However, the concepts known to the Roman jurists were not very dissimilar from those which underlie the classification drawn in the Maltese Civil Code. Possibly, the idea of handing-over a ‘res’ influenced the terminology which was adopted for LC; but the reason why letting and hiring of things and undertakings to perform a job of work were brought together within the same heading can only be found in the influence of the censorial ‘locationes’ on the general economic life of Rome. The contract of employment was treated under the same heading on account of the great influence of slave-labour. ‘Locationes servorum’ and ‘locationes operarum’ were both ‘locationes rerum’ since ‘operae’ were ‘res’. LC in Roman law was a unitary contract in the sense that the jurists did not make a specific classification of types of LC. However, there were two ‘forms’ within LC; ‘locare rem (utendam)’; ‘locare opus (or rem) faciendum (or faciendam)’. In the demonstratic of the formulae of the ‘actiones locati et conducti’ there was certainly some difference between these two ‘forms’; there is also evidence that the jurists kept the two ‘forms’ distinct in their works. However, within the first ‘form’ there was also ‘locatio operarum’ which in character had greater analogies with the second ‘form’. It was felt that the structure of LC was illogical and there is some evidence to show t hat the jurists were inclined to associate ‘locatio operarum’ with the second ‘form’. The conversion of these two ‘forms’ into two distinct legal categories was both undesirable and impossible. Several cases could appear indiscriminately under one or the other ‘form’. While these cases continue to fall within LC, a classification of LC into types was impossible. Further, a classification of LC was unnecessary, because the jurists in considering the question of risk concerned themselves only with the facts without reference to any type to which the facts might conceivably conform. […]