LEASE, CONTRACT OF.—Three kinds of lease are distinguished: the lease of things, the lease of works, and the lease of services. Departing from the old Code of 1865 (which was very antiquated in this matter) and taking account of the enormous development of leasing in recent years, the Italian Civil Code of 1942 has very appropriately dealt with them in separate parts.
Reserved to Book V, on labor, is the lease of services, that is, the true employment contract understood in the modern sense (the provision of personal labor under the direction of others or jointly with them in return for wages or participation in the fruits: arts. 2060–2574). In Book IV, on obligations, the Italian Code discusses the various contracts for the performance of works, such as contracts for supply (arts. 1559–70), contracting for work (arts. 1655–77), carriage (arts. 1678–1702), agency (arts. 1703–41), commercial agency (arts. 1742–53), brokerage (arts. 1754–65), and deposit (arts. 2028–32); and the true contract for the lease of things (of urban and rural properties), which is simply called lease (arts. 1571–1654). Other legal institutions that have an infinite affinity with leasing are dealt with in Book III, on property, insofar as, while differing greatly from leasing, they approach property precisely on that account, such as superficies (arts. 952–56), emphyteusis (arts. 957–77), usufruct (arts. 978–1026), and even predial servitudes (arts. 1027–99).
Having made this indispensable preliminary clarification for understanding the complex subject matter of leasing and the very different contracts composing it; bearing in mind that it is sometimes difficult to determine whether a lease belongs rather to one species than to another, especially when it concerns the lease of works or of services, what is presented here exclusively is the subject matter relating to the lease of things: the Italian Civil Code itself, moreover, as indicated, reserves the term lease (arts. 1571–1654) for that contract. It is also appropriate to note that both moral theologians, until recent years, and civil-law scholars (almost all Italian scholars until 1942) often treated leases understood in the various senses mentioned above indiscriminately. Nor will it be useless to point out that, contrary to what many civil-law scholars would wish, even the new Italian Code does not contain two separate treatments for the lease of urban properties and that of rural properties; rather, both are discussed in a single Chapter 6, although in distinct sections and under distinct names (lease for urban properties, arts. 1607–1604); farm lease for rural properties, arts. 1615–54).
The Italian Civil Code, after defining a lease as «the contract by which one party undertakes to allow the other to enjoy a movable or immovable thing for a specified period, in return for a fixed consideration» (art. 1571); after establishing that a lease exceeding nine years and advance payments of the consideration for a lease lasting more than one year are acts exceeding ordinary administration (art. 1572), and that a lease (except where otherwise provided by law, as, for example, in the case of the lease of land for reforestation purposes or the lease of houses for habitation, which under arts. 1629 and 1607 may respectively be made for a maximum of 99 years in the first case, and until the end of the second year after the death of the tenant in the second) may not be concluded for a period exceeding 30 years (art. 1573), describes the principal duties of the lessor and the lessee.
Article 1575 provides in this regard that the lessor must deliver the thing in good condition, maintain it in a condition suitable for the agreed use, and guarantee its peaceful enjoyment for the stipulated period; while the lessee must use
the thing as a good head of household; pay the consideration at the agreed time (art. 1587), return it at the proper time in the same condition in which he received it (art. 1590), and, in the event of delay, pay, in addition to the rent for the additional period, any further damages resulting from the expiration of the due date (art. 1591). Generally, minor expenses relating to the leased thing are borne by the lessee, and the others by the lessor (art. 1576); the lessee, however, is liable for the loss of or damage to the leased thing even when resulting from fire (unless the fire occurred through a cause not attributable to him), or from third parties whom he has admitted, even temporarily, to the use of the leased thing (art. 1588). Subleasing is permitted (meaning of urban properties) by the lessee (art. 1594), but subletting is not (meaning of rural properties) (art. 1624); in any event, the subleasing of movable property is always prohibited without the lessor’s consent, except where contrary usages exist (art. 1594). Tacit renewal of the lease is also permitted (and on the same conditions as the previous lease that has expired) if, after the lease term has expired, the lessor raises no objection to the lessee, and in any case if, where the lease is for an indefinite period, prior notice of termination has not been given (art. 1597). Only a few articles (1607–44) then directly concern the lease of urban properties, whereas the provisions concerning farm leases—that is, the lease of rural properties and their appurtenances—are much more numerous. In this particular case, special prominence is given to unforeseen events. Articles 1635–1637, in fact, lay down fairly detailed rules governing the economic relations between lessee and lessor in the event of the fortuitous loss of the land in both multi-year and annual leases, except for the risk of loss of livestock belonging to the leased property, which always remains the responsibility of the tenant farmer unless expressly agreed otherwise (art. 1643).
As regards the moral sphere, the general rules governing contracts also apply in the case of leases. Moral theologians ordinarily reiterate that one must abide by the provisions of the civil Code of the individual nations, especially with regard to the respective obligations and rights of lessor and lessee. As regards the Italian Civil Code, it must be acknowledged that it adequately reflects the principles of natural law and equity.
The foregoing provisions also apply to the lease of ecclesiastical goods (can. 1529). An exception is the lease of immovable property belonging to churches, which may not be leased to their administrators or to their blood relatives and relatives by marriage up to and including the second degree (fourth civil degree), without the permission of the Ordinary of the place (can. 1540). The lease of any other ecclesiastical property may be freely made, provided that it takes place by public auction and is awarded to the highest bidder (can. 1531 § 2), with the consent of the ecclesiastical authority referred to in can. 1541 § 2, nos. 1–3. Moreover, advance settlements for more than six months are prohibited without the permission of the Ordinary of the place when the property belongs to ecclesiastical benefices (can. 1479); the ordinary rule of the civil code is observed, however, when other property is involved.