57. tit. 5. P. 5. and L. 2. tit. 11. lib. 5. Rec. [L. 57. tit. 5. P. 5. and L. 3. tit. 1. lib. 10. Nov. Rec] 4th, That artisans cannot allege this lesion,64 by reason of the skill which they are supposed to possess, L. 3. tit. 11. lib. 5. Rec. [L. 4. tit. 1. lib. 10. Nov. Rec.]

§ 4. In what relates to the thing or property sold, the sale may be set aside when there exists the right of retracto ó tanteo, by which, if the person possessing the right (el retruyente) offers the same price as was agreed upon, the contract ought to be revoked. Some persons may retract (retraer) by reason of the quality or nature of the thing which hath been sold, and others by reason of the quality of the person. The first are, 1st, The direct lord or proprietor (señor directo), or the person who has a share in the thing sold, who ought to be preferred to the relations when their claims come together, L. 13. tit. 11. lib. 5. Rec. [L. 8. tit. 13. lib. 10. Nov. Rec.] 2d, The partner in the common property, L. 14. tit. 11. Lib. 5. Rec. [L. 9. tit. 13. Lib. 10. Nov. Rec.]

65

Those who possess the right of retracto, by reason of the quality [199] of the person, are, 1st, The nearest relation66 in the sale of a patrimonial or ancestoral estate, and if there are two of equal degree, they shall divide the estate between them, L. 13. tit. 10. Lib. 3. Fuero Real. and L. 7. tit. 11. lib. 5. Rec. [L. 1. tit. 13. lib. 10. Nov. Rec.] 2d, If this sale should be made to a stranger,67 the nearest relation must make use of or exercise this right within nine days, swearing that he wants the thing for himself; and not being disposed to exercise or avail himself of his privilege, this right passes to the next in degree, L. 12. tit. 11. lib. 5. Rec., [L. 7. tit. 13. lib. 10. Nov. Rec.] which alters in this part, L. 7. tit. 11. lib. 5. Rec. [L. 1. tit. 13. lib. 10. Nov. Rec.] 3d, these nine days run against absent minors by way of prescription, without their being admitted afterwards to claim although they may allege the right of restitution in integrum, L. S. tit. 11. lib. 5. Rec. [L. 2. tit. 13. lib. 10. Nov. Rec.] 4th, The son of the vendor is preferred to his uncle, L. 8. tit. 11. lib. 5. Rec. [L. 2. tit. 13. lib. 10. Nov. Rec.] 5th, This right takes place or holds

to it, the contract is void. If it was in the contract itself (by buying and selling too dear or too cheap), it is not void, but may be made void by action or exception, as of Redhibitoria or Quanto minoris. See Wood's Inst. Civil Law, Book 3. ch. 5. p. 230.

64 In respect of any work undertaken or done in their respective art or calling.

65 Also superficiario, L. 8. tit. 13. Lib. 10. Nov. Rec. cited. Palacios says, superficiario is he who possesses a house or building on the soil or ground of another, for which he pays some annual rent (pension). Contractus superficiarius is a contract, observes Wood, in which a man hires ground to build upon at a yearly rent. See Inst. Civ. Law, Book 3. ch. 5. p. 239.

66 Of the vendor, adds Palacios, provided he be within the fourth degree. Whether this computation is to be according to the canon or civil law, is a question which has its several various supporters; and there being no declaratory law to the contrary, the Learned Professor gives his assent to the computation of the canonists.

67 And also if it should be made to a relation, says Palacios, according to the common opinion.

68 Or able. See L. 7. tit. 13. lib. 10. Nov. Rec. cited.

69 Against minors and absent persons. See L. 2. tit. 13. lib. 10. Nov. Rec. cited.

199

with respect to sales at public auction,70 the person who exercises it paying the costs, diligences, &c., L. 9. tit. 11. lib. 5. Rec. [L. 4. tit. 13. lib. 10. Nov. Rec.] 6th, If many things belonging to an ancestoral estate be sold for one price, all ought to be taken or none; but if they be sold for different prices, one may be taken without the other, L. 10. tit. 11. lib. 5. Rec. [L. 5. tit. 13. lib. 10. Nov. Rec.] 7th, If the thing be sold on credit, it may be taken on giving security within the nine days to pay the price for which it was agreed to be sold, L. 11. tit. 13. lib. 5. Rec. [L. 6. tit. 13. lib. 10. Nov. Rec.] 8th, That this right of tanteo by reason of relationship only takes place with respect to property inherited, and not that which the vendor acquired by contract inter vivos,72 L. 15. tit. 13. lib. 5. Rec. [L. 3. tit. 13. lib. 10. Nov. Rec.] 9th, The hijosdalgo, according to the custom (fuero) of Castille, have this right of tanteo or redemption of the property of their ancestors without limitation of time in respect to the property which descended from their father and grandfather de abuelo arriba,73 L. 1. tit. 4. Lib. 4. del Fuero viejo de Castilla.

§ 5. When it happens that the purchaser loses the thing judicially, there must be a distinction made between him who may be a bond fide possessor, and him who may be so mala fide; that is, he who, at the time of the purchase, should know that the thing did not belong to the vendor," The first makes the fruits his own until the day of contestation; but the latter is obliged to restore them, Ll. 39 and 40. tit. 28. P. 3. [Ll. 39 and 40. tit. 28. P. 3.]

With regard to the expenses which both might have incurred, it must be observed that Garcia de expensis. cap, 1. num. 10. distinguishes four classes of expenses: The first are necessary, with- [200] out which the thing will be destroyed, the second profitable or advantageous ones which improve the thing (mejoran); the third, those of mere pleasure, such as paintings, &c.; and the fourth, those which are incurred for the purpose of gathering in the fruits.

According to our laws, 1st, As well the possessor bona fide, as he

70 Even though by judicial order. See L. 4. tit. 13. lib. 10. Nov. Rec. cited.

71 Palacios says, Azevedo, on L. 10. tit. 11. lib. 5 Rec, excepts two cases, in which one cannot be taken without the other, which see.

72 Palacios says, that Gomez on L. 73. de Toro, n. 3. is of opinion, that the same takes place in respect of property acquired by the vendor, although it be by contract, inter vivos, if he acquired it from his ascendants. As, for instance, if any of them should have made a donation, propter nuptias, or should have given any of their property by way of mejora; and that it is certain, that the reason there is for its taking place with respect to property inherited, exists for its doing so with respect to the description of property last mentioned. 73 But not from ascendants farther removed than them. Sce L. 1. tit. 4. lib. 4. Fuero viejo de Cast. cited.

74 Palacios observes, that not only is a person said to possess in bad faith, who knew at the time of the purchase that the property did not belong to the vendor, but if he afterwards comes to know it, and from the time he does know it; and in so much is the latter a possessor in bad faith, that if, after knowing it, he should make any n w work on the property purchased, and should be evicted by the lawful owner, he sha not be able to recover the expenses he incurred in respect thereof, L. 41. tit. 23. P. 3.; nd in the same manner he shall be obliged to restore the fruits of the property received, L. 39. tit. 28. P. 3.

malâ fide, may recover necessary expenses, retaining the thing for the payment, L. 44. tit. 28. P. 3. [L. 44. tit. 28. P. 3.] 2d, Only the possessor bona fide recovers expenses laid out for the advantage of the property (provechosas), Ll. 41, 42, and 44. tit. 28. P. 3. [Ll. 41, 42. and 44. tit. 28. P. 3.] Sd, As also those of mere taste, L. 44. tit. 28. P. 3. [L. 44. tit. 2S. P. 3.] 4th, Both may deduct the expenses of the fourth class, L 42. tit. 28. P. 3. [L. 42. tit. 28. P. 3.] vide el Garcia, de expensis, cap. 1, 2, and 5.

201

TITLE XIV.

OF RENTS, RENTING. (DE LOS ARRENDAMIENTOS.)

CAP. 1. THE Second onerous contract is that of renting, by [202] which one person lets or grants to another the service or labor of his person or beast, or the use or enjoyment of a thing, for a certain time, which must be paid in ready money, L. 1. tit. 8. P. 5. [L. 1. tit. 8. P.15.] Our laws distinguish renting (el arrendamiento) from letting (el alquiler), applying the term rent to an estate or land (heredud), and the latter to a house, a castle, &c., L. 1. tit. 8. P. 5. [L. 1. tit. 8. P. 5.]

§ 1. This contract then consists in three things; in the consent of the parties; in the thing or labor which is rented or let; and in the price. In the first place hence it is, that renting derives its perfection from consent. 2d, that all things capable of use and mechanical

1 Vide contra Wood's Inst. C. L., p. 236; 1st, Browne, C. L. p. 178. It is said in the text, that the price or reward must be paid in ready money; but this appears to be only applicable to the term loguero, not arrendamiento; which first term may, perhaps, be properly rendered wages, or reward, or remuneration for services or labor, whether of man or beast: for by the civil law, the rent or reward is not, as in the contract of buying and selling, confined to ready money, but is extended to every thing that consists in number, weight, and measure, or in a certain quantity of provisions, or in a portion of the fruits; and vide L. 7. tit. 11. lib. 10. Nov. Rec.; and note 1. Ibid., and nota Greg. Lop., L. 4. tit. 8. P. 5. Since the foregoing part of this note was written, the Translator has procared the edition of the text with the notes of Dr. Palacios, professor of laws in the University of Huesca, of which it will be seen he has availed himself whenever the transcription of these notes or their substance appeared useful. The Learned Professor observes on this part of the text, that the definition given according to the law cited (L. 1. tit. 8. P. 5.) belongs to Loguero. that arrendamiento, according to the same law, consists in renting an estate, or any other thing for a certain rent: that it is of Loguero and of arren. damiento, L. 1. tit. 8. P. 5., speaks; and of the word alquiler or alquilar, that L. 5. Ibid., makes mention. But that in the language or terms of the present time, the term logar is unknown, except in some particular towns; where, to agree with a man for his services or labor, to reap, &c., is called logar; and logarse is said of those who hire themselves, or furnish their labor for wages: that the term arrendar is made use of in speaking of renting or leasing an estate or possession; the term alquilar, in speaking of the letting or hiring any house, lot of land, or other things, for a certain sum and time; and ajustar or concertar (to bargain or agree), is said in speaking of work done and performed (las obras.) That the word arrendador, which the text applies to the lessor or person who lets to rent or hire, is applied also by the laws, and without travelling out of this 8th Title of the 5th Partida, to the lessee or hirer; and if regard is had to the common acceptation or use of the day, it is more applicable to the latter than to the former; but that, properly speaking, the latter ought to be called arrendatario (lessee or hirer). That in Febrero Reformado, P. 1. tom. 2. c. 10. § 1. num. 1., the person who lets to rent or hire, is called arrendatario; but that this is a mistake. A reference, however, to the 4th edition of Febrero Reformado, published at Madrid 1807, tom. 2. Par. 1. cap. 19. § 1. num. 1. p. 1., will show that the learned Professor is deceived, and that the reverse and proper definition is given to the word arrendatario.

2 The word cosa is made use of in the text; but it is apprehended that this is a typographical error, and that the word casa is meant.

VOL. I.-28

labor or serviec, may be rented or hired. 3d, That the price must be just, certain, and in ready money,3 4th, That the rentor or lessor is obliged to grant the use of the thing rented, or to perform the labor stipulated, and the lessee or person hiring to pay the price which he promised.

From the first principle it is inferred, 1st, That any one may rent who can sell and buy, the agreement being for a certain time, or for the life of either of the contracting parties, L. 2. tit. 8. P. 5. [L. 2. tit. 8. P. 5.] 2d, That this contract admits every covenant or pact that may not be opposed to the laws and good customs, L. 2. tit. 8. P. 5. 3d, That if the tenant or lessee holds three days beyond the time agreed on, the renting is presumed to continue for another year under the like covenants. But if he should be lessee or tenant of a house, tower (torre), or other building, such presumption does not take place, for the reason assigned by L. 20. tit. 8. P. 5. [L. 20. tit. 8. P. 5.]

From the second principle it results, 1st, That all things may be rented or let, from the use whereof we can derive advantage; and also the usufruct of an estate, vineyard, or other like thing, L. 3. tit. 8. P. 5. [L. 3. tit. 8. P. 5.] 2d, The work and labor of others, Ll. 3. 9, 10, 11. tit. 8. P. 5. [Ll. 3. 9. 10. 11. tit. 8. P. 5.]

[203] From the third principle it arises, That the price or amount of the rent ought to be regulated according to the law or custom of the place, or by agreement of the parties, L. 4. tit. 8. P. 5.,7 [L. 4. tit. 8. P. 5.,] and as regards the wages of daily laborers, it is provided that they be regulated or fixed by the town councils or corporations, L. 3. tit. 11. lib. 7. Rec. [L. 4. tit. 26. lib. 8. Nov. Rec.] 2d, That it ought to be paid at the time stipulated, and if none be appointed, at the end of the year, L. 4. tit. 8. P. 5., [L. 4. tit. S. P. 5.,] but the wages of mechanics must be paid daily, L. 4. tit. 11. lib. 7. Rec. [L. 2. tit. 26. lib. 8. Nov. Rec.] 3d, That if the rent be not paid at the appointed time, the landlord or lessor may oust or remove the tenant or lessee, it being always understood that for the satisfaction of the rent he has a tacit mortgage on whatever is found belonging to the latter on the premises rented, L. 5. tit. S. P. 5. [L. 5. tit. S. P. 5.]

3 See note 1 p. 201. ante.

4 Palacios says, L. 2. tit. 8. P. 5. specifies various persons, who, though they may buy and sell, cannot take on lease or hire, lands (campos). Those are caballeros and officers of the king's court; and he refers to tit. 10. lib. 10. Nov. Rec. for information as to those who cannot rent or hire the royal rents, or those of any town wherein they hold or exercise their offices.

5 It is not only presumed, says Palacios, but is positively known, and is clear, according to L. 20. tit. 8. P. 5., cited; and by L. 3. tit. 10. lib. 10. Nov. Rec., farmers and landlords are obliged to give each other notice to quit at the beginning of the last year of the term; if not, the term continues over for another year.

6 With reference to the time of renting.

In the absence of all which, if the rent is payable yearly, it must be paid at the end of the year; and when it is payable out of the fruits, it is not due before the crop or harvest is reaped. Vide the law quoted in the text, and note 1. Greg. Lop. on ditto.

8 Or the wages may be fixed by agreement between the laborers and employers. Vide note 1. tit. 26. lib. 8. Nov. Rec.

• Palacios observes, if they should have been put there with the knowledge of the