Leasing and hiring greatly resembles purchase and sale, and is governed by the same rules of law. For as buying and selling is contracted where the parties have agreed upon the price, so also is leasing and hiring understood to be contracted when the hire has been determined upon; and an actio locati will lie for the benefit of the party who leases the article, and an actio conducti for the benefit of the party who hires it.

(1) We must also understand that what We have previously stated with reference to leaving the price to the judgment of another party also applies to cases of leasing and hiring, where the amount of compensation is left to the judgment of another. For which reason, if anyone gives clothing to a fuller to be pressed and cleaned, or to a tailor to be mended, no compensation having been stated at the time, but the owner intending to pay subsequently whatever shall be agreed upon; it is considered that leasing and hiring has not, properly speaking, been contracted, but an actio præscriptis verbis is granted on this account.

(2) Moreover, as formerly the question commonly arose whether a contract of purchase and sale was concluded by an exchange of property, so, also, it was asked with reference to leasing and hiring, when anyone gave you some property to be used or enjoyed and in turn received from you some other article to be used or enjoyed. It has been established that this is not a leasing and hiring but a peculiar kind of contract; as, for instance, where one party who has an ox, and his neighbor also has one, and it is agreed between them that each shall lend the other ox for the term of ten days for the purpose of doing his work, and an ox dies while in the possession of the other party; no action for leasing or hiring nor one for a loan will he, for the reason that the loan was not gratuitous; but an actio præscriptis verbis must be brought.

(3) Purchase and sale, as well as leasing and hiring, so nearly resemble one another, that in some instances, the question arises whether a purchase and sale or a leasing and hiring is contracted; as, for example, in the case where lands are delivered to certain parties to be enjoyed perpetually, that is, as long as the rent or income is paid to the owner for them they cannot be taken away from a lessee or his heir, or from anyone to whom the lessee or his heir may sell them, give them, bestow them as a dowry, or alienate them in any other way. But as a contract of this kind was considered doubtful among the ancients, and thought by some of them to be a lease and by others to be a sale; a law was enacted by Zeno which established the peculiar nature of the contract of emphyteusis as not resembling either a lease or a sale, but to be upheld by its own covenants; and if anyone entered into it, it should be sustained just as if such was the actual nature of the contract; but where no agreement was made concerning the risk, then, if the property was entirely destroyed, the resulting loss must fall upon the owner, but if the loss was only partial, it should attach to the party in possession of the land. This rule We sanction.

(4) The question also arises, if when Titius made a contract with a goldsmith to make rings for him out of his own gold, of a certain weight and form, and to receive for instance ten aurei, whether it shall be considered that a contract of purchase and sale, or one of leasing and hiring has been entered into. Cassius declares that there is a contract of purchase and sale with respect to the material, but one of leasing and hiring with respect to the labor; still, it has been decided that the contract is merely one of purchase and sale. But if Titjus should provide his own gold and compensation be agreed upon for the labor, no doubt exists that this is a leasing and hiring.

(5) The person hiring the property should comply in every respect with the terms of the contract; and if anything has been omitted from the same, he should provide it in conformity with uprightness and equity. When a man has either given, or promised compensation for the use of clothing, silver, or a beast of burden, he should take such care of the same as the most diligent head of a family would take of his own property; and if he does so, and loses the article by any accident, he will not be bound to replace it.

(6) Where a party who hires property dies during the existence of a contract, his heir succeeds to the lease on the same terms.