Precaria

PRECARIA. - Name of an agrarian contract that was widely diffused especially between the 6th and 12th centuries. As a rule its object was the conferral in usufruct of an estate by the owner (grantor) to a grantee (precarist) for a fixed time and under conditions that varied greatly from case to case. As a rule it consisted of two documents, one in the form of a petition (also called p.) sent by the precarist to the grantor, the other in the form of a concession (called praestaria or commendatitia or also p.) sent by the grantor to the precarist, as a mutual guarantee. The determination of the essential and constant elements of the p. and its distinction from the level (v.) and also from emphyteusis (v.) and from benefice (v.) are extremely controversial: the terminology of the documents is contradictory and the attempts at clarification by the old jurisconsults hinder, rather than facilitate, the historian's investigation.

The name p. (which in the sources indicates both the contract, the document, and the performance imposed on the precarist) was originally an adjective; according to some it referred to possessio, according to most to epistola. To these two interpretations are linked the two major conceptions of the p. that still divide the field.

According to the first (Schupfer), the p. was a contract distinguished by substantial elements, developed from the ancient Roman precarium; but, whereas this was gratuitous and without precise legal guarantees, in the p. there was the fixing of a term and of a compensation and later written documentation. According to the other conception (Pivano), the essential element of the p. was given by the documentary form. This distinguished the p. from the level, a likewise formal contract, and at the same time made it adaptable to the most varied

P. between private individuals are very rare. The preponderance of p. granted by churches is such that sometimes the contract itself has been held to be a typical institution of canon law. P. verbo regia, granted by churches through royal intervention, and especially frequent in Merovingian and Carolingian France, do not fall outside the general framework.

Ecclesiastical p. had (but the classification is modern) various figures: p. data, when a church granted goods that were already its own beforehand; p. oblata, when it granted in usufruct to the precarist goods he had received in donation; p. remuneratoria, when it granted goods partly already its own and partly received in donation; p. commutativa, when it granted its own goods in exchange for other goods donated to it; to say nothing of other figures more complex or applied less frequently. The favor enjoyed by the p. oblatae and remuneratoriae in the early Middle Ages is explained by the advantages they offered both to the churches, which put their own goods to profit without violating the principle of their inalienability (the five-yearly renewal of the title also aimed at this), and to private individuals, who deprived themselves of the bare ownership (burdened with taxes and threatened by continual abuses), but retained the enjoyment of their goods, made more secure by the protection of the churches to which they had donated them.

Ecclesiastical legislation on the matter, begun by the Council of Agde in 506, was not proportionate to the great diffusion of the institution; when the Decretals of Gregory IX (III, 14) gave the p. a definitive regulation, it was already in decline. In the late Middle Ages it gradually became confused with similar institutions, and disappeared.

Piero Fiorelli