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Bill Thayer

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p710 Locatio

Article by George Long, M.A., Fellow of Trinity College
on p710 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

LOCATIO, CONDUCTIO, is one of those contracts which are made merely by consent, without the observation of any peculiar form. The contract might be either a locatio conductio rerum, or a locatio conductio operum. In the locatio conductio rerum, he who promises the use of a thing, is locator, he who promises to give a sum of money for the use is conductor: if the thing is a dwelling-house, the conductor is called inquilinus; if it is cultivable land, he is called colonus. The locatio conductio operum consists either in giving certain services for a fixed price, or giving that which is the result of labour, as an article of furniture, or a house. He for whom the service is done, or the thing is made, is called locator: he who undertakes to produce the thing is conductor or redemptor (Hor. Carm. III.1).

The determination of a fixed price or sum of money (merces, pensio) is an essential part of the contract. When lands were let, the merces might consist in a part of the produce (Dig.4 tit. 65 s21). When the parties have agreed about the object and the price, the contract is completed; and the parties have severally the actiones locati et conducti for enforcing the obligatio (Dig. 19 tit. 2).

This being the nature of the contract of locatio et conductio, it was a matter of doubt sometimes whether a contract was locatio et conductio or something else: when a man made a pair of shoes or suit of clothes for another, it was doubted whether the contract was emtio et venditio, or locatio et conductio. The better opinion, and that which is conformable to the nature of the thing, was that if a man furnished the materials to the tailor or shoemaker, it was a contract of locatio et conductio: if the tailor or shoemaker furnished the materials, it was a contract of emtio et venditio (Gaius, III.142, &c.; Inst. 3 tit. 24 s3, 4).a A doubt also arose as to the nature of the contract when a thing was given to a man to be used, and he gave the lender another thing to be used. Sometimes it was doubted whether the contract was Locatio et Conductio or Emtio et Venditio; as in the case where a thing was let (locata) for ever, as was done with lands belonging to municipia, which were let on the condition that so long as the rent (vectigal) was paid, neither the conductor nor his heres could be turned out of the land; but the better opinion was in favour of this being a contract of Locatio et Conductio [Emphyteusis.]

Thayer's Note:

a if the tailor or shoemaker furnished the materials, it was a contract of emtio et venditio: This remains one of the tests in the United States for distinguishing between an employee and an independent contractor.

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Page updated: 5 Oct 03