Formation of lease agreement in pre-classical Roman law

Modern civil law is characterized by the emergence of undefined and mixed types of contracts. This development necessitates the identification of specific features that can help to classify contracts for legal certainty. A similar issue arises when distinguishing lease agreements from other types of contracts that involve the transfer of property for a specified period. This challenge has been recognized since the time of Roman Law. The aim of this article is to provide a historical reconstruction of the factors that led to the separation of lease agreements from other contracts. Historical philological, systemic, and teleological methods were employed in interpreting ancient texts. The research findings show that the original form of hiring relations was a temporary sale of the hiring object. Some sources attest to this form being applied to labor services provided by individuals under the control of pater familias, as well as for the exploitation of public lands. During the Republic period, hiring relations began to be distinguished from contracts of sale. Efforts to systematize Roman Law in the first century B.C. recognized this division between the two contracts. At that time, the jurist Servius Rutilius Rufus defined the obligations of a leaseholder through the doctrine of vis major, outlining the area of risk for leaseholders and conditions for the deduction and return of lease payments. This indicates that risk allocation between parties in a lease agreement served to clarify both the locator’s and conductor’s obligations, granting them an independent character.