The leasing contracts and their historical evolution from biblical to modern times.
"Public life depends on people making agreements and keeping to them, the two parties involved binding themselves to do something in the future and then expect that this agreement be fulfilled. Economic and social life would be impossible if we could not trust such a system. Because of this the state provides a guarantee: if one of the parties fails to perform what has been promised, then the other can take action in the courts." (Seely, 2003: 17) Therefore, contracts represent a landmark, a vital component of the mankind in everyday life, and that is why this paper intends to suggest further contractual principles, similar and not different from those used by the author in a previous paper entitled, "The Old Testament Contracts and/v The New Civil Legislations: The Purchase Agreement", and it also wishes to be a sequel of the above mentioned paper, and to introduce the leasing contract under some of its multiple codes. The paper makes use of some informative concepts and biblical historical frames which are present in a generous bibliography due to some notorious experts in the field, namely, E. SaftaRomano, (1997), Legal Archetypes in the Bible, John Seely, (2003), Law in Everyday Life, Paul D. Vrolijk, (2011), Jacob's Wealth, who try to outline a synthetic picture of several relevant problems seen from an interdisciplinary viewpoint, namely, theology, history, law.
2. The Leasing Contract
Starting from the motto: "Abraham took the sheep and oxen and gave them to Abimalech, and the two of them made a covenant" (Genesis 21:27), I'd like to introduce the leasing contract as a leasing agreement met both in the Old Testament and the New Testament. This type of contract has been borrowed from the Biblical texts and used in the course of time even in the nowadays world civil laws. I'd like to follow the origins and evolution of the leasing contract from the ancient times till today and spy on and make some relevant notes about several similarities and differences among the multifarious codes of it, in a comparative and contrastive approach into which I am not willing to go deeply due to the limited space allowed to this paper, but to offer only some sample patterns of how the leasing contracts have been concluded beginning with Biblical times and ending in ours.
2.1 Laban and Jacob. (B.C.) The ways a contract is carried out in the Old Testament
If we wanted to travel back in time, when Moses had written the Book of Genesis in the Old Testament, we should meet Jacob and Laban. The story goes that Laban concluded with Jacob, his son-in-law, a leasing contract, under which Jacob made a series of activities in Laban's household. After many years of hard work, Jacob decided to leave Laban's lands and his father-in-law asked him how much wages he wanted to be paid, the wages asked representing the lease rate. As wages, Jacob asked Laban to give him the spotted sheep and goats while the handing of these animals was to take place in three days' time. But Jacob resorted to wiles and, after having taken his sheep and goats, handing them to his sons, he also took some of Laban's sheep and goats. By using fraudulent practices under the contract, he succeeded in getting rich beyond measure at the expense of Laban. The reaction of Laban's sons was immediate and they said that, "Jacob has taken away all that was our father's, and from our father's property he acquired all his wealth." (Genesis: 31, 1) Jacob answered that he had carried out his contractual obligations in good faith and added that, "yet your father deceived me and changed my wages ten times." (Genesis: 31, 7) The changing of the wages of Jacob was equivalent to a one-sided change of the leasing contract, which was unacceptable. Such a change in the rate of Jacob's wages could have taken place only with his consent but it was obvious that such a contract had not existed between the two parties. (Safta-Romano, 1997: 117) After we had read the story of Laban and Jacob, we could come to the conclusion that the Biblical text puts indirectly into question the way in which a contract has to be performed. It is here where there are outlined two of the main contractual principles that we find in the civil laws of many countries, namely: 1. the principle of a compulsory contract which means that once concluded the contract, it has the force of law and, 2. the principle of performance in good faith of all of the obligations assumed. However, the agreement between Laban and Jacob also highlights another aspect of the performance of the leasing contract. The two men agreed that Jacob would take care of the guarding and grazing of their sheep and goats over a certain period of time. Therefore, we speak here of a contract for the performance of services (Bonfield, 2006: 95), a contract by which a person agrees to undertake certain duties under the direction and control of the employer in return for a specified wage or salary. (Martin, 2003) Under the contract, Jacob was under the obligation of remaining and staying at Laban's until the term expired. (Safta-Romano, 1997: 118) But what did Jacob do? He, without having let Laban know, took all the wealth earned and ran away, crossed the Euphrates and headed for the Mountains of Gilead. Moreover, the Bible says that, "Jacob had hidden from Laban the Syrean, his intentions of running away." (Genesis: 31, 20) The failure to having complied with the contractual terms attracted Jacob's liability and that was why, Laban, accompanied by his sons, would go in pursuit of Jacob and they would catch him on the Mount Gilead. The charge Laban brought to Jacob seemed to be very interesting from the legal point of view, as Laban asked him: "Why did you flee away secretly, and steal away from me, and not tell me; for I might have sent you away with joy and songs, with tambourine and harp?" (Genesis: 31, 27) Jacob had committed indeed a breach of trust under the contract, but we could say that he was also entitled to claim the same abuse to Laban and he even reproached his father-in-law, "You have changed my wages ten times". (Genesis: 31, 41) In Britain, the termination of a contract of employment in breach of the terms of the contract is wrongful dismissal and may be remedied in the county court or the High Court or by an employment tribunal. In such an action the court is not concerned with "fairness" but purely with compensating for a breach of the terms of the contract. (Martin, 2003) In the U.S., in longer-term contracts as that of Laban-Jacob was, however, a specified amount may be due at particular points in the course of performance: failure to pay the stipulated sum in a timely manner is a breach. (Bonfield, 2006: 96). However, after all their disputes, the two litigants, eventually came to make peace and conclude an agreement on the fixing of the boundaries for their properties, by promising that neither of them would ever trespass onto each other's properties. What Jacob did was to take a stone and set it as a sign of bounds, then asked his sons to gather some other stones and pile them into a heap; what Laban did was to say to Jacob that, "this heap is a witness between you and me today", (Genesis: 31, 46) and he named it, "ThisHeap-Witnesses". Heaps and pillars used to be ways of putting boundaries between properties and this is to be encountered in the nowadays civil law and legislations. Laban did want to make it all this very clear and he emphasized his promise by repeating it once more: "This heap is a witness, and this pillar is a witness, that I will not pass beyond this heap and this pillar to you, and you will not pass beyond this heap and this pillar to me, for harm." (Genesis: 31, 52) We can compare and contrast the similarities and differences in this biblical type of contract with that in the present Civil Code which also regulates the servitude of fencing, according to which each individual is entitled to enclose his/her property. (Safta-Romano, 1997: 119) In English law trespass comes in three forms: trespass to land, trespass to goods and trespass to person and in all these situations you can sue for damages. (Seely, 2003: 149) In American modern law, trespass to personal property allows an owner whose property is taken by another to sue and to select whichever remedy he/she prefers. (Bonfield, 2006: 125) Roughly speaking, there are some places where it is even today, customary to put boundaries between properties by making use of heaps of rocks or mounds of earth, including pillars. Therefore, the Biblical texts pay attention to the issues relating to the ownership of the land, the right of the defense of one's property, the offense against property, the trespass to goods, land or person and, bring in the idea of the protection of the property rights.
2.2 The Lease--A Type of a Leasing Work in the Old Testament (B.C.)
I'd like to mention the lease, a type of a leasing work, a contract under which an owner of property, the landlord, grants another person exclusive possession of the property for an agreed period, usually but not necessarily in return for rent and sometimes for a capital sum. We have already learned from the previous paper, how Joseph, the son of Jacob who had been sold to the Egyptians, managed to become one of the most powerful men in Egypt. In the years when famine devastated the country, Joseph bought all the land and livestock and turned all the people into slaves but the priests. (SaftaRomano, 1997: 116) Joseph spoke to the people and suggested that they should take the seed and sow their lands, "But when the crop comes in, give a fifth of it to Pharaoh. The other four-fifth you may keep as seed for the fields and as food for yourselves and your households and your children." (Genesis: 47, 24) The people approved of this agreement, and thus, there appeared the lease, a type of a leasing work which has come into force since the ancient times. Compared and contrasted to it, the lease, under the nowadays English common law, must be for a definite period, which may be a fixed term or by way of a periodic tenancy. The deed that creates the lease sets out the terms, which include the parties, the property, the length of the lease, the rent, and other obligations. (Martin, 2003)
2.3 The Reign of Solomon (971-931) and the Different Types of Negotiations in the Old Testament
Leaving Laban and Jacob behind, I'd like to move on and go forward to the reign of King Solomon where the raising of the Temple of the Lord implied also the signing of a large number of legal contracts, the dealing with different kinds of negotiations which the Bible evokes in detail. (Safta-Romano, 1997: 119) Thus, regarding the building of the Temple, we learn that, "Solomon made seventy thousand of them bearers of burdens, eighty thousand stonecutters in the mountain, and three thousand six hundred to oversee the people's work." (2 Chronicles: 2, 17) Therefore, we can infer that Solomon negotiated with those who were to carry the burdens, with the stone-cutters and their overseers. Implied in every contract of employment from the past and also from modern times are the duty of mutual confidence and trust, the employer's duty to protect the employee from danger and risks to his health, and the employee's duty to do the work to the best of his ability. (Martin, 2003) The bargain of an agreement depends on the type of the contract, because any contract arises as a result of offer and acceptance. These two are essential for the conclusion of any contract they making up what we might call the "haggling" which represents the skill of concluding a contract. In a true contract, however, there have to be two parties to the agreement; the agreement must be meant to be legally binding; there has to be some kind of exchange of goods or services. The law says that there have to be the following five essential components: offer, acceptance, consideration, intention and capacity (Seely, 2003: 18-19) which are to be met again in Solomon's way of concluding contracts. Although Solomon was a powerful king and did not need to impose the terms of a contract, he would rather bargained like any other ordinary man. The Biblical story goes that Solomon, to obtain the cedars necessary for the building of the Temple, sent a representative to Hiram, the King of Tyr with the following message: "Send me cedar and logs as you did for my father David when you sent him cedar to build a palace to live in." (2 Chronicles: 2, 3) This time, according to the purchase agreement (see the paper, "The Old Testament Contracts and/v The New Civil Legislations: The Purchase Agreement"), the cedar wood would be bought from another country and for that Solomon would use a trustee. However, Solomon asked Hiram to send him, too, "a wise man skilled to work in gold and silver, in bronze and iron, in purple and crimson and blue, who can work skillfully with the skilled men with me in Judah and Jerusalem, whom David, my father provided." (2 Chronicles: 2, 6) Therefore, Solomon decided to buy cedar, cypress and pine timbers "for I know that your servants are skilled in cutting timber in Lebanon. And indeed my servants and your servants will go to prepare the abundance of timber for me." (2 Chronicles: 2, 7, 8) Keeping on reading the holy text, we shall learn that Solomon himself engaged to give food to the woodcutters, "twenty thousand metric tons of wheat, twenty thousand metric tons of barley, four hundred thousand liters of wine, and four hundred thousand liters of olive-oil." (2 Chronicles: 2, 9) King Hiram sent Solomon a letter in reply to his type of contract in which he added that he agreed to the terms suggested by Solomon and, therefore, Hiram sent a man of great skill endowed with discernment, named Huram-Abi, "skilled at working in gold and silver, bronze and iron, stone and wood, at weaving purple and blue, fine linen and crimson, and at making any engraving and accomplishing any plan that may be given to him, with your skillful men." (2 Chronicles 2, 14) Moreover, Huram-Abi will make Solomon a counteroffer by asking him to send to his servants all the quantities of wheat, barley, oil and wine. Regarding the wood, Huram-Abi proposes that his men should cut all the building materials in Lebanon, in the required amount and carry them on rafts up to Joppa, where it is to be taken over by the people of Solomon and be transported to Jerusalem. (Safta-Romano, 1997, 121) The Bible has just given us a sample of a concluding of a distance contract through messengers and letters which is a customary procedure in the nowadays civil and commercial relations. (Safta-Romano, 1997: 121) Later on, during the reign of Josiah, the Temple of the Lord was repaired and restored. This time again, there were skillful men to carry out the works and the money was given to the carpenters and builders "to buy hewn stone and timber for beams to roof the houses the kings of Judah had destroyed." (2 Chronicles: 34, 12) The artisans have worked honestly, namely in good faith, a principle which must govern the performance of any contractual or commercial agreement. What seems very interesting is that the Bible has recorded the names of several overseers, like those of Jahath and Obadiath, of the sons of Merari, and Zechariach and Meshullam, the sons of Kohath who supervised the works of the Temple. (Safta-Romano, 1997: 121) Cyrus, King of Persia, will watch the rebuilding of the Temple of the Lord, and for this ending, he concluded again, a series of contracts. For example, "then they gave money to the masons and carpenters, and gave food and drink and oil to the people of Sidon and Tyr so that they would bring cedar logs by sea from Lebanon to Joppa, as authorized by Cyrus, King of Persia." (Ezra: 3, 7) It is worth mentioning here that to rebuild Jerusalem, Nehemiah concluded a series of conventions and he met all kinds of obstacles, but he eventually successfully managed to do it. (Safta-Romano, 1997: 122) Famous, powerful kings like Solomon and Cyrus, and the prophet Nehemiah remained honest people of great generosity and they concluded contracts which they respected.
2.4 The Parable of the Owner of the Vineyard in the New Testament
Although we leave back the leasing contracts in the Old Testament and travel in time to meet Jesus who used to preach about 30-33 A.D., I'd like to mention how the legal and moral codes of the leasing contract in the Old Testament have been taken over and applied to the parable of the owner of the vineyard. "Do not take advantage of a hired man who is poor and needy, whether he is a brother Israelite or an alien living in one of your towns." (Deuteronomy: 24, 14) and, the text continues to say that, "pay him his wages each day before sunset, because he is poor and is counting on it." (Deuteronomy: 24, 15) We discover in these short quotations how deeply moving and amazing can be the Book of Deuteronomy when it teaches us not only a lesson of legality but more than that, one of morality and manners and behavior. Therefore, it is here where we face two main biblical codes of a leasing contract, namely the legal and moral ones. Having this in mind, we can go on with an example of a leasing contract in the parable about the owner of a vineyard who hired some workers. (Safta-Romano, 1997: 116) This parable was said by Jesus to his disciples and the paper covers only the legal aspect of the leasing contract included in it. It goes like this, "Thus, more workers were hired by the owner of a vineyard, the cash payment being a denarius a day." Around three p.m., after having seen that there were still more people unemployed in the market place, the owner of the vineyard hired them and told them: "you also go and work in my vineyard, and I will pay you whatever is right." (Matthew: 20, 4) At six p.m., the owner of the vineyard hired some other people, at seven p.m., he saw some other people standing around and asked them: "Why have you been standing here all day long doing nothing?" (Matthew: 20, 6) and, they answered him: "Because no one has hired us." (Matthew 20, 7) Then the owner of the vineyard hired these people, too, and sent them as the others, to work in his vineyard. In the evening, the master of the house called his foreman and said to him: "Call the workers and pay them their wages, beginning with the last ones hired and going to the first." (Matthew: 20, 8) All of them were paid a denarius each including those who were hired last. The first workers expressed their dissatisfaction with the owner of the vineyard and reproached him, "These men who were hired last worked only one hour', they said, 'and you have made them equal to us who have borne the burden of the work and the heat of the day." (Matthew 20, 12) The answer of the owner of the vineyard is legal: "Friend, I am not being unfair to you. Didn't you agree to work for a denarius? Take your pay and go. I want to give the man who was hired last the same as I gave you. Don't I have the right to do what I want with my own money?" (Matthew: 20, 13-15) From the legal viewpoint, the owner of the vineyard has concluded distinct leasing contracts and cash payment with each of the hired people. The principle of the contractual freedom stipulates that the contracting parties should determine freely the terms of the contract including the labor payment. The owner of the vineyard was free to pay the last workers as much as he agreed with them even the price was equal to that of the first workers. Therefore, the owner's statement is fully justified from the legal point of view. Roughly speaking, a contract, once signed, cannot be changed by one party, but by an agreement of the both contracting parties, thus we can outline another principle that protects the enforcing contracts, namely the principle of irrevocability. This fundamental rule, used by the modern world civil laws is found in and taken from the Biblical texts. (SaftaRomano, 1997: 116-117) The leasing contract may have as its object a thing or a work. The leasing of things is a contract by which a contracting party undertakes to provide the other party, the use of a thing for a well-determined period of time in exchange for a payment. In the leasing of works, one party is obliged to do work for the other party in exchange of a predetermined sum of money as in the parable of the owner of the vineyard. It is here where we have brought in the unilateral contract (which is sometimes called "if' contract based on the idea that one party says to the other, "if you will do such and such, then I will do so and so"), one party's promise is dependent upon the other party performing an act requested by the offer and doesn't become operative until that act has been performed. (Owens,1995: 37)
The research proposal, related to the field of creative economy and legal matters in the context of the Old Testament and the New Testament Books represents a sketchy comparative-contrastive approach which might be useful to anyone. Although the Biblical Texts comprise many examples of the leasing contracts, I have focused only on some of their principles and multifarious codes, showing how the leasing contracts were concluded, performed and turned into fundamental bases for the nowadays contracts. The leasing contract regardless of the form it takes, has been, from immemorial times till nowadays, an active presence in the legal lives of the world peoples, and it has known a thorough regulation. Therefore, in the leasing contract of Laban and Jacob, I have stated how the Biblical texts paid attention to the issues relating to the ownership of the land, the right of the defense of one's property, the trespass of goods or land and, how they brought in the idea of the protection of the property rights. Then, we have been witnesses of Jacob's failure to comply with the contractual terms while the texts outlined two main contractual principles which are to be found in the civil law. In the course of time, there appeared the lease as a type of a leasing contract. I have stated that there have always been two contractual codes, namely, the moral and the legal ones. During the reign of Solomon, there emerged and developed the contract at distance governed by the principle of working in good faith. Finally, in Jesus' parable we have met the principles of irrevocability and that of the contractual freedom. The intended results of the paper are to prove that the principles which govern the conclusion and performance of the leasing contracts have remained almost the same in the course of time and we can rediscover them even today in the world civil legislations. It is almost impossible that we should imagine a world without contracts which have been emerged and established as the ground of the social life. The author's intention has been to try to highlight that nothing is new in the fields mentioned, everything having a correspondent element, origin, or/and development in the Book of the Books.
Spiru Haret University
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|Publication:||Economics, Management, and Financial Markets|
|Date:||Jun 1, 2017|
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