Lease, Contract of

LEASE, CONTRACT OF. — Three kinds of locatio are distinguished: locatio of things, locatio of works, and locatio of work. Breaking away from the old code of 1865 (very antiquated on the matter) and taking into account the enormous development of locatio in recent years, the Italian Civil Code of 1942 has very appropriately dealt with them in separate parts.

Reserving to Book V, on labor, the locatio of work, that is, the contract of employment proper taken in the modern sense (supply of personal labor under the direction of others or in common with them in exchange for wages or with participation in the fruits: arts. 2060-2574), the Italian Code in Book IV, on obligations, speaks of the various contracts of locatio of works, such as the contract of supply (arts. 1559-70), of appalto (arts. 1655-77), of transport (arts. 1678-1702), of mandate (arts. 1703-41), of agency (arts. 1742-53), of brokerage (arts. 1754-65), of deposit (arts. 2028-32); and of the contract of locatio of things proper (of urban and rural properties), which is simply called locazione (arts. 1571-1654). Other legal institutions that have an infinite relativity to locatio are treated in Book III, on property, inasmuch as, departing greatly from locatio, they approach precisely property, such as superficies (arts. 952-56), emphyteusis (arts. 957-77), usufruct (arts. 978-1026) and predial servitudes themselves (arts. 1027-99).

Having made this indispensable premise for the understanding of the complex matter of locatio and of the very diverse contracts that compose it; bearing in mind that at times it is difficult to distinguish whether a locatio belongs rather to one than to another species, especially whether to the locatio of works or of work, there is set forth here exclusively the matter regarding the locatio of things: the Italian Civil Code itself, moreover, as was hinted, reserves the term locazione (arts. 1571-1654) to that contract. It is also worth noting that both the moralists, until recent years, and the civilists (almost all Italian ones until 1942) have often treated promiscuously of locazioni taken in the various senses mentioned above. It will also not be useless to warn that, contrary to what many civilists would wish, not even in the new Italian Code are there two distinct treatments for the locatio of urban properties and for that of rural properties, but of both there is discussion in the single chapter 6, though in distinct sections and with a distinct name (locazione for urban properties, arts. 1607-1604); affitto for rural properties, arts. 1615-54).

The Italian Civil Code, after having defined locazione as "the contract by which one party obliges himself to let another enjoy a thing, movable or immovable, for a given time, in exchange for a determined consideration" (art. 1571); after having established that a locazione exceeding nine years and advance payments of the consideration of the locazione for a duration greater than one year are acts exceeding ordinary administration (art. 1572), and that the locazione (save for different provisions of law, as, for example, in the case of locazione of properties for the purpose of reforestation or of locazione of houses for habitation, which under arts. 1629 and 1607 may be made respectively up to a maximum of 99 years the former, and up to the expiration of the second year after the death of the tenant the latter) cannot be stipulated for a time greater than 30 years (art. 1573); describes the principal duties of the lessor and of the lessee.

In art. 1575 it is said in this regard that the lessor must deliver the thing in good condition, maintain it in such a way as to serve the agreed use and guarantee its peaceful use for the stipulated time; while the lessee must use the thing as a good father of a family; pay the consideration at the established time (art. 1587), return it at the due time in the same condition in which he received it (art. 1590) and, in case of delay, pay, in addition to the rent for the longer time, also any greater damages resulting from the passing of the date (art. 1591). Generally the minor expenses regarding the leased thing are borne by the lessee, the others by the lessor (art. 1576); the lessee, however, is liable for the loss or deterioration of the leased thing even if deriving from fire (unless this has occurred for a cause not imputable to him), or from third parties whom he has admitted, even temporarily, to the use of the leased thing (art. 1588). Subletting (understand: of urban properties) by the lessee is permitted (art. 1594), but not subleasing (understand: of rural properties) (art. 1624); in any case the subletting of movable goods without the consent of the lessor is always prohibited, save for contrary usages (art. 1594). Tacit renewal of the locazione is also permitted (and on the same conditions as the previous one that has expired) if the lessor, upon the expiration of the term of the locazione, raises no objection to the lessee, and in any case if, in the case of a locazione for an indefinite time, there has been no prior notice of termination (art. 1597). A few articles then (1607-44) concern directly the locazione of urban properties; while those concerning affitto, that is, the locazione of rural properties and their appurtenances, are much more numerous. In this particular case special prominence is given to the factor of unforeseen events. Arts. 1635-1637 in fact lay down fairly detailed rules that regulate the economic relations between lessee and lessor in the case of fortuitous loss of the properties both in multi-year leases and in annual ones, save for the risk of the loss of livestock belonging to the leased property, which always remains borne by the tenant farmer, unless the contrary has been expressly stipulated (art. 1643).

As regards the moral field, the generic norms of contracts also apply in the case of locazione. Ordinarily the moralists reiterate that one must abide by the norms of the civil code proper to individual nations, especially as concerns the respective obligations and rights between lessor and lessee. As regards the Italian Civil Code, it must be recognized that it reflects very adequately the principles of natural law and equity.

The preceding provisions also apply to the locazione of ecclesiastical goods (can. 1529). An exception is the locazione of immovable goods belonging to churches, which cannot be leased to their administrators nor to their blood relatives and relatives by marriage up to the second degree (fourth civil degree) inclusive, without the permission of the local Ordinary (can. 1540). The locazione of any other ecclesiastical property may be made freely, provided it takes place by public auction and is ceded to the best bidder (can. 1531 § 2) with the consent of the ecclesiastical authority referred to in can. 1541 § 2, nn. 1-3. Moreover, advance payments for more than a half-year are prohibited without the permission of the local Ordinary when it is a question of goods belonging to ecclesiastical benefices (can. 1479); the ordinary norm of the civil code is observed instead when it is a question of other goods.

Lorenzo Simeone