364 conductor, colonus. instrumentum 



never be a matter of indifference to the sitting tenant of a farm. But it is 

 the lawyer's aim to see that the passing of the property shall not impair 

 the tenant's rights under his current lease. A lease sometimes contained 

 clauses fixing the terms (such as a money forfeit) 1 on which the contract 

 might be broken ; in fact a cross-guarantee between the parties, securing 

 the tenant against damage by premature ejectment and the landlord 

 against damage by the tenant's premature quitting. The jurists often 

 appeal to local custom as a means of equitable decision on disputed 

 points. But one customary principle seems to be recognized 2 as of 

 general validity, the rule of reconductio. If, on expiration of a lease, 

 the tenant holds on and the landlord allows him to remain, it is regarded 

 as a renewal of the contract by bare agreement (nudo consensti). No 

 set form of lease is necessary ; but this tacit contract holds good only 

 from year to year. Another fact significant as to the position of the 

 colonus is that he is assumed to have the right to sublet 3 the farm : 

 questions that would in that case arise are dealt with as matters of 

 course. I suppose that a lease might be so drawn as to bar any such 

 right, but that in practice it was always or generally admitted. Again, 

 it is a sign of his genuinely independent position in the eye of the law 

 that his own oath, if required of him, may be accepted 4 as a counter- 

 active plea (exceptio iurisiurandi) in his own defence, when sued by 

 his landlord for damage done on the farm. 



On the economic side we have first to remark that the colonus is 

 represented as normally a man of small means. It is true that in the 

 Digest conductor and colonus are not clearly 5 distinguished, as we find 

 them in the African inscriptions and in the later law. For the former 

 is simply the counterpart of locator, properly connoting the relation 

 between the contracting parties : colonus expresses the fact that the 

 cultivation (colere) of land belonging to another devolves upon him by 

 virtue of the contract. Every colonus is a conductor, but not every 

 conductor a colonus. Now custom, recognized by the lawyers, provided 

 a means of supplying the small man's need of capital. To set him up 

 in a farm, the landlord equipped him with a certain stock (instrumentum). 

 This he took over at a valuation, not paying ready money for it, but 

 accepting liability 6 to account for the value at the end of his tenancy. 

 The stock or plant included 7 implements and animals (oxen, slaves, 



1 xix 2 54 1 . 



2 xix 2 I3 11 , 14. The normal term of a lease was 5 years (lustrum, quinquennium). 



3 xix 2 24 1 , XLI 2 3<j 6 , XLIII 16 2o. So in law of 224 AD, cod lust iv 65 6. 



4 xii 2 28. 



5 xix 2 25 3 , XL 7 4 o 5 . Compare the language of xxxiv 3 16 with 18. 



6 xix 2 3, 54 2 . 



7 xix 2 19*, xxxii 9I 1 , 93 2 , ioi l , xxxin 7 passim, esp 4. For the vilicus, xxxm 

 7 i8 4 , 20 1 . A woman caretaker, ibid 15*. 



