Readers of various British newspapers will have come across this news item in the last few weeks:
Apart from the obvious social interest raised by this posting (especially with regard to the overheated rental market in London and the flourishing of unregulated tenancies), the legal issue behind this report is quite interesting, especially the notion of a peppercorn rent. The matter is quite complex in the civilian tradition owing to the existence of this text from the Digest:
D. 19, 2, 46 Ulp. 69 ad ed.
Si quis conduxerit nummo uno, conductio nulla est, quia et hoc donationis instar inducit.
It does not take a Latinist to work out that the last part of this text is shaky. Indeed, already in 1956, Theo Mayer-Maly pointed out that the above text was probably cobbled together from this one:
D. 41, 2, 10, 2 Ulp. 69 ad ed.
Si quis et conduxerit et rogaverit precario, uti possideret, si quidem nummo uno conduxit, nulla dubitatio est, quin ei precarium solum teneat, quia conductio nulla est, quae est in uno nummo: sin vero pretio, tunc distinguendum, quid prius factum est.
Once this is accepted, it becomes clear that Roman law did not prohibit a peppercorn rent per se. Indeed, there are a number of examples from legal practice where a peppercorn rent is charged.
So what was the problem, then? Clearly not the peppercorn rent as such. Instead, it was something more intangible. In the article, the moderators of the site removed the listing on account of its breach of ‘community regulations’ of the website.
No doubt, a Roman lawyer would have reasoned along similar lines, but would likely have approached the matter from the perspective of ‘good faith’, the underlying idea in letting and hiring, instead. It is, after all, not the charging of a nominal rent per se that causes the problem here. Rather, it is the sense that the charging of a peppercorn rent masked something altogether different.