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 presunied' 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.]

8

[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. S. 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. 8. 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.]

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 land. lords 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.

7 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

10

4th, That the lessee being punctual in the payment of the rent, cannot be dispossessed or ousted, except in the case expressed by L. 6. tit. S. P. 5. [L. 6. tit S. P. 5.] 5th, That if the thing rented be sold within the term, the lessee ought to give it up; but the vendor is obliged to make good to him a share of the price proportioned to the time that remains to complete the term, unless it shall have been otherwise covenanted."

From the fourth principle it is inferred, 1st, That at the expiration of the term, the thing must be restored to the rentor or lessor; and in case of delay or refusal1 on the part of the tenant or lessee, he shall restore double the amount,13, and make good the damages and deteriorations, L. 18. tit. 8. P. 5. [L. 18. tit. 8. P. 5.] 2d, That the tenant or lessee of an estate ought not to pay the rent or price if any calamity, war, fire, &c., should arise, which may destroy the fruits or produce, unless it should have been covenanted to the contrary, or unless this loss may be compensated from the abundance of other years,14 Ll. 22. and 23. tit. 8. P. 3. [Ll. 22. and 23. tit. 8, P. 3.] 3d, That if the estate produces double fruits, or gives a double return, not by reason of the industry, but by the melioration or augmentation15 of the thing, the price or rent ought to be doubled, L. 23. tit. 8. P. 5. [L. 23. tit. 8. P. 5.] 4th, That the full annual salary or stipend of schoolmasters must be paid, although they die before the completion of the year, because the instruction was not wanting from their fault. But the heirs of an advocate who should die before the completion of the suit, and those of a mechanic or tradesman who undertook to perform any work, cannot recover the entire wages or price, unless they provide an equally competent advocate or [204] workman to finish what was begun, L. 9. tit. 8. P. 5. [L. 9. tit. 8. P. 5.] 5th, That the person letting any thing16 is responsible for the damages which may accrue to the hirer by reason of its inutility or defect, except in the case" provided by L. 14. tit. s. P. 5. [L. 14. tit. 8. P. 5.] 6th, That if the lessors or landlords, or others, by reason of any right that they may possess over the thing rented, of which

owner, referring to L. 5. tit. 8. P. 5. Quære, if beasts belonging to the plough, and things necessary to tilling and cultivating the ground of lessee, can be distrained?

10 Until, says Palacios, the term be concluded; and that it is to be observed, that L. 6. tit. 8. P. 5. cited, does not speak of lessees or tenants of estates (heredades), but of tenants or lessces of houses.

Or the lease should have been granted for the life of either lessee or lessor perpetually. 12 L. 18. tit. 8. P. 5. says, until sentence given against him (lessec),

13 Palacios says, the restitution or payment of double the amount, in such case is not practised.

14 Either former or subsequent. See L. 23. tit. 8. P. 5., cited: provided, adds Palacios, according to the law, 22, ibid., the event by which the produce is destroyed should not be one of those accidents often accustomed to happen; and he refers also to Greg. Lop. Gl. 3. on the same law; or unless it should be the custom of the place for this loss to belong or attach to the lessce.

15 That is, accidental

See also Greg. Lop. Gl. 6. on L. 23. tit. 8. P. 5., cited.

16 Such as casks or vessels for holding wine, oil, &c.

17 With respect to bad grass in a pasture or meadow, of which the lessor was ignorant. See, L. 14. tit. 8. P. 5. cited.

the lessors or landlords were cognisant, should impede or obstruct the lessees or tenants in the use of it, they ought to pay to the latter the damages and prejudices occasioned by such obstruction, 18 L. 21. tit. 8. P. 5. [L. 21. tit. 8. P. 5.] 7th, That the herdsman, or keeper of cattle, shall satisfy the damage done by the animals, which proceeds from his fault, L. 15. tit. 8. P. 5. [L. 15. tit. 8. P. 5.] 8th, That the master workman who shall have undertaken any work by the job or lump, is obliged to do it over again, or to return the price with the damage, if it should tumble down while it is building, or if after it is finished, in the opinion of honest men of his calling, it should be judged faulty and dangerous through his fault, L. 16. tit. 8. P. 5. [L. 16. tit. 8. P. 5.] But if the work should be undertaken under the agreement of paying the price after it is finished, the payment cannot be delayed under the pretext of its not being considered good, because the inspection of skilful persons will be sufficient to destroy this excuse. And if the agreement were to pay on the work being done to the satisfaction of him who ordered it to be done, and that till then it should be at the risk of the workmen, if this approbation should be deferred through the fault of the former, from the period of this delay, all deterioration ought to be at his risk, provided it does not arise from the faultiness or defect of the work, L. 17. tit. S. P. 5. [L. 17. tit. 8. P. 5.]

Hence it follows, 10th, That the freighter of a ship must pay the value of the thing that shall be laden in it, with all prejudices to the owner of it, if it was endangered or broken by the fault of the former,19 L. 13. tit. S. P. 5. [L. 13. tit. 8. P. 5.] 11th, That a carrier of goods is liable to the same penalty, if they be lost through his fault,20 L. S. tit. 8. P. 5. [L. 8 tit. 8. P. 5.] 12th, That every error of an artist or professor, from which loss or deterioration may arise to the thing which he took under his charge, induces the obligation, on his part, of satisfying or paying the value of it,21 L. 10. tit. 8. P. 5. [L. 10. tit. 8. P. 5.] 13th, That if the lessor or lessee should die within the term, the reciprocal obligations pass, or are transferred to [205] the heirs of both, except that the thing rented were the usufruct of an estate; because being personal, the lease or term will expire with the death of the lessee, Ll. 2. and 3. tit. 8. P. 5. [Ll. 2. and 3. tit. 8. P. 5.] 14th, That the owner of a warehouse is not answerable for the things placed there by the tenant or lessee;23 but he is not by this absolved from the obligation of paying the damages occasioned by his fault or fraud, L. 25. tit. 8. P. 5. [L. 25. tit. 8. P.

22

18 See the amplifications and limitations to this contained in L. 21. tit 8. P. 5. cited. 19 See L. 13. tit. 8. P. 5. cited.

20 See also L. 8. tit. 8. P. 5. cited.

21 This extends to physicians, surgeons, farriers, &c. See L. 10. tit. 8. P. 5. cited. 22 Palacios says, that this is not understood with respect to particular successors, nor to those of an entail. And for a clearer comprehension of the difference, he refers to Gom. var. res. Lib. 2. cap. 3. to Murillo cur. jus. can. this title. Ferraris prompta Biblioth. verb. Locatio.; Febrero reformado, p. 1. c. 10. § 1. tom. 2.

23 Unless he undertook their charge or custody. See L. 25. tit. 8. P. 5. cited.

5.] 15th, That innkeepers are responsible for the property of their guests, because they ought to exercise hospitality with good faith, and return or justify the confidence placed in them, Ll. 26. and 27. tit. 8. P. 5. [Ll. 26. and 27. tit. 8. P. 5.] 16th, That as the lessee or tenant is obliged to pay the damages which the thing shall sustain while in his possession, in the same way the lessor or landlord ought to satisfy the lessee or tenant for the value of the improvements, which, by his industry, the property rented hath undergone,25 L. 24. tit. 8. P. 5. [L. 24. tit. 8. P. 5.]

24 Also owners, &c., of vessels; and this responsibility extends to loss by negligence, theft, &c. See L. 26. tit. 8. P. 5. cited.

25 Palacios says, it must be observed by way of conclusion to this title, that by a royal order of 21st June, 1765, it is forbidden to tenants or lessees to underlet the lands rented to them, which order it is necessary to bear in mind, because Gomez, 2 var. res. cap. 3. n. 11., and some others allege, that the tenant or lessee may under-let that which was rented to him. The royal order, however, referred to by the Learned Professor, is not found in the Chronological Index of Pragmaticas, &c., to the Nov. Rec.

TITLE XV.

OF PARTNERSHIP OR SOCIETY.

[206] CAP. 1. THE third onerous contract is that of partnership, which is a union of two or more men, formed with the intention of making gain from their joint stock, associating themselves with one another, L. 1. tit. 10. P. 5. [L. 1. tit. 10. P. 5.]

There is a partnership which is called universal or general, by which all the property of the partners present and future is joined together. The other is particular, as regards certain specific things or objects. All partnership must have for its object an honest and just purpose, and which must not be opposed to good manners or customs, of which examples are given in Ll. 2. and 9. tit. 10. P. 5. [Ll. 2. and 9. tit. 10. P. 5.]

§ 1. Hence proceed the following axioms: 1st, That partnership is a contract which derives all its force from the consent of the partners. 2d, That all profits and losses arising from the things which should be brought into the partnership be common. 3d, That it proceed from good faith.

From the first axiom it follows: 1st, That partnership may be formed, tacitly or expressly, by mere parol agreement, by instrument or deed, by mensagero, &c., L. 7. tit. 10. P. 5. [L. 7. tit. 10. P. 5.] 2d, That all persons may enter into it, with exception of the madman1 and minor under fourteen years; but the minor under twenty-five years has always the right of restitution in integrum against the damages or fraud which he may suffer, L. 1. tit. 10. p. 5. [L. 1. tit. 10. P. 5.] 3d, That this contract can only be made for a certain time or for the life of the partners, but never for that of their heirs, unless it be a partnership of rent regarding things belonging to the crown or any corporation, L. 1. tit. 10. p. 5. [L. 1. tit 10. P. 5] This does not prevent the heirs from being responsible by reason of the passive actions which their ancestors and members of the partnership transmitted to them, L. 17. tit. 10. P. 5. [L. 17. tit. 10. P. 5.] 4th, That from the day in which the partnership was formed, there is no necessity for a formal delivery of the things, in order to their being considered common to the partners in their use and right of them, except actions of seignory or dominion, and against debtors, for which, in

1 Palacios observes, that every person who cannot consent, by what reason soever it may be, is unable to make this, or any other contract.

2 Palacios says, this means, that if any of the partners should have a scignory or jurisdiction (manorial jurisdiction), the other partners cannot exercise this jurisdiction, unless special power should have been given to them for the purpose. Also, if one partner should have any debts due to him (individually is meant), the other partners cannot demand or sue for those debts, without a like power or authority.