SOME COMPARATIVE ASPECTS OF THE LAW OF LANDLORD AND TENANT
| Date | 01 October 1948 |
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00098.x |
| Published date | 01 October 1948 |
THE
MODERN
LAW
REVIEW
Volume
11
October
1948
No.
4
SOME
COMPARATIVE ASPECTS
OF
'lXE
LAW
OF
LANDLOlXD AND TENAN'I'
Sonm two years ago Mr.
B.
Plummer published an article in this
Revicru
on
'
some aspects of the law of landlord and tenant
This articlc enumerated scven rules of the law of landlord and tenant
--all of them familiar to lawyers-which in the opinion of the
author are unsatisfactory and should be amended at the earliest
possible opportunity. The Haldane Society in its recent booklet
'
Law Reform Now
)
has endorscd Mr. Plummer's recommends-
tion and stated that it regards the reform of the law
of
landlord
and tenant
as
of particular urgency and capable of being carried
through within the next three years. The Haldane Society has
also
pointed out that
it
expects that the demand for
a
reform
of
this part of the law would
be
cndorscd by wide circles of the
public independent
of
their political views and allegiance.
The purpose of thc present articlc is to support the view adopted
by the Haldane Society and by Mr. Plummer through argumenb
taken from comparative
law.
The thesis which
I
hope to prove is
that the Continental laws, or at least the most important ones among
tlicm, have for decades and mostly even for centuries provided
those solutions which Mr. Plummcr and the Haldane Society have
advocated.
I
am, of coursc, aware of the fact that what
has
been
approved by most,
if
not by
nll,
Continental legal systems, need
not necessarily be either just or practicable in this country. But
at
least it cannot
be
said that what is suggested by the reformers
now,
is an untried innovation.
And
it may perhaps not
be
without
significance that the rulcs whose adoption is now being urged have
alrcady
bccn
in
force over the larger part of Europe for some
corisidernblc time and havc not bccn found to be either unjust
or inconvenient.
My nrticlc is designed to be read as a commentary on the seven
suggestions sct forth by Mr. Plummer.
I
find .no quarrel with
any of his statements on English
law.
In order
to
avoid unneces-
sary rcpetition of what
he
has said
I
must refer my readers to his
nrticlc for
n
fuller trcntmcnt of English law and for well-chosen
6xamplcs from English cases.
Thc
Continental legislation and liternture and the number of
judicial dccisions on questions relating to the law of landlord and
MI-.
Grrnld Gnrdincr,
K.C.,
and
Mr.
W.
W.
9.
Pollnrd
1
Modern
Low
Reoiew,
Vol.
0
(1946),
pp.
49
ff.
2
Victor Gollnncz, 1947.
hnvc
cdilcd
thc
Commillrc'a
Rcport.
377
VOL.
11
*x
878
THE
MODERN
LAW
REVIEW
Vor..
1
I
tenant is
so
vast that no individual could hope to read and digcst
more than a fraction of it.
I
have to apologise
to
my readers if my
comments-like othcr comments in legal history-are somewhat
longer than the text to which they are appended. Even
so
I
have
done no more than to select-I hope not too injudiciously-from a
material that is much larger than the following remarks may inducc
my readers to believe.
I
have not intended to provide a full treatise
on the comparative law of landlord and tenant.3 My intention
was much humbler: to illustrate and to support with the help of
comparative law the contemporary demands for legal reform.
'
Si plus minusve secuero, se fraude esto.'
I
Mr.
Plummer says':
'
There is
no
implied warranty
or
covcnant by the landlord with
the tenant on the creation of a tenancy that the landlord had a
good right in all respects
to
create the tenancy for the term and
according to the tenor thereof.'
I
think
I
am not guilty of any exaggeration if
I
assure my
readers that there is no Continental legal system where the war-
ranty which
Mr.
Plummer advocates has not been implied ever
since the reception of Roman law,
i.e.,
for at least the last four
centuries. The Roman rule was that the tenant (conductor) did
not acquire possession, but was considered a mere detentor.
It
was, however-as Professor Buckland has stated-' the duty of
the locator (landlord) to maintain this detention,
so
that he was
responsible
if
the conductor lost it either from a defect in title,
or
because the locator had conferred some
izcs
in
rent
on a third
person who would not be bound by the contract'. From Roman
law the rule that the landlord is responsible in damages for any
defect in title has been taken over into all modern Continental
laws.
Thus Grotius explains that a man may let property to which
he is
'
totally a stranger
',
but if he
'
cannot procure
to
the hirer
the use
of
it, he is liablc
for
all costs, damages and
loss
of profit
'.'
This has remained the rule
of
Roman-Dutch law up to the present.:
In France the Code Civil states expressly that
it
is
the duty of the
landlord to procure for. the tenant the peaceful use
of
the property
during the period of the tenancy.* Protection against what is
generally referred to by French jurists as
'
troubles de droit' is
an elementary duty of the landlord. French lawyers distinguish
from the
'
troubles de droit
'
the so-called
'
troubles de faits
',
J
Those
nlio
rrquirc
this
may
be
rcfcrrcd
to
llic
arlicle
by Ziminrrlc,
'
Mictc
',
4
L.c.,
p.
42.
3
Buckland,
A
Tezlbook
o/
Roman
Law,
2nd
ed.
(1932),
p.
500.
6
Inlcidi,ig
tol
dc Ifollatidscltc Rcchls.gclcerlkcd,
3,
19,
5.
The
trnnslolion
:
hIaosdorp,
Inslilrttes
o/
Soulli
Ajrican
Lou,
1'01.
9
(41b
ed.,
1030),
pp.
236
ff.
8
Code
Civil,
Art.
1719 (3)
and
1725.
in
thc
/lecl~~sucrglciclrcnde Handwiirtcrbuch,
1'01.
6
(1036),
pp.
318
ff.
quotcd
in
the
lcxt
is
tlint
of
Professor
Lee.
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