PRECARIA. - Name of an agricultural contract that enjoyed wide diffusion especially between the 5th and 9th centuries. It generally involved the conferral of a plot of land in usufruct by the owner (grantor) to a grantee (precariast) for a fixed period and under conditions that varied from case to case. It normally consisted of two documents: one in the form of a request (also called a precaria) submitted by the precariast to the grantor, and the other in the form of a grant (called praestaria or commendatitia or also precaria) submitted by the grantor to the precariast, serving as mutual guarantees. The establishment of the essential and constant elements of the precaria and the livello (v.), as well as from emphyteusis (v.) and beneficium (v.), remain highly controversial: the terminology of the documents is contradictory, and the attempts at clarification by early jurists hinder rather than facilitate historical inquiry.
The term precaria (which in the sources denotes both the contract and the document, as well as the obligation imposed on the precariast) was originally an adjective; it was linked, according to some, to possessio, and, according to most, to epistola. These two interpretations give rise to the two major conceptions of the precaria, which still divide scholarly opinion.
According to the first (Schupfer), the precaria was a contract distinguished by substantive elements, derived from the ancient Roman precarium; whereas the latter was gratuitous and lacked precise legal guarantees, the precaria involved the fixing of a term and a compensation, and later written documentation. According to the other conception (Pivano), the essential element of the precaria was its documentary form. This distinguished the precaria from the livello, a similarly formal contract, while at the same time rendering it adaptable to the most varied contents: a single contract could be a precaria or a livello in form, and an emphyteusis or pastinato or something else in substance. Neither of these two opposing conceptions, rigidly interpreted, can be applied to all cases presented by the sources, unless some are considered exceptional. It is clear, moreover, that in the vast majority of cases both are equally valid.
Precariae between private individuals are very rare. The predominance of precariae granted by churches is such that the contract itself has sometimes been regarded as a typical institution of canon law. Royal precariae, granted by churches with royal intervention—especially frequent in Merovingian and Carolingian France—do not depart from the general framework.
Ecclesiastical precariae had (though this classification is modern) various forms: precaria data, when a church granted lands that had previously been its own; precaria oblata, when it granted in usufruct to the precariast lands received as a donation; precaria remuneratoria, when it granted lands partly its own and partly received as a donation; precaria commutativa, when it granted its own lands in exchange for other lands donated to it; to say nothing of other, more complex or less frequently applied forms. The favor enjoyed by oblata and remuneratory precariae in the early Middle Ages is explained by the advantages they offered both to churches, which could put their lands to productive use without violating the principle of their inalienability (a goal also pursued through the quinquennial renewal of the title), and to private individuals, who relinquished bare ownership (burdened by taxes and exposed to continual encroachments) but retained the enjoyment of their lands, made more secure by the protection of the churches to which they had donated them.
Ecclesiastical legislation on the matter, which began with the Council of Agde in 506, did not keep pace with the great diffusion of the institution; when the Decretals of Gregory IX (III, 14) provided a definitive regulation of the precaria, it was already in decline. In the late Middle Ages it gradually merged with related institutions and disappeared.