The Philosophy of Law: Supplementary Explanations, IV: Confusion of Real and Personal Right
The proposition ‘Purchase breaks Hire’ (§ 31, p. 131) has further been objected to as a heterodoxy in the doctrine of Natural Private Right. It certainly appears at first sight to be contrary to all the Rights of contract, that any one should intimate the termination of the lease‘of a house to the present Lessee before the expiry of the period of occupation agreed upon; and that the former can thus, as it appears, break his promise to the latter, if he only gives him the usual warning determined by the customary and legal practice. P>ut let it be supposed that it can be proved that the Lessee when he entered upon his contract of hire knew, or must have known, that the promise given to him by the Lessor or proprietor was naturally (without needing to be expressly stated in the contract, and therefore tacitly) connected with the condition’ in so far as he should not sell his house within this time, or might have to renounce it on the occasion of an action on the part of his creditors.’ On this supposition the Lessor does not break his promise, which is already conditioned in itself according to reason, and the Lessee does not suffer any infringement of his Right by such an intimation being made to him before the period of lease has expired. For the Right of the latter arising from the contract of hire, is a Personal Right to what a certain person has to perform for another (jus ad rem); it is not a Real Right (jus in re) that holds against every possessor of the thing.
The Lessee might indeed secure himself in his lease and acquire a Real Right in the house; but he could do this only by having it engrossed by a reference to the house of the Lessor as attached to the soil. In this way he would provide against being dispossessed before the expiry of the time agreed upon, either by the intimation of the proprietor or by his natural death, or even by his civil death as a bankrupt. If he did not do this, because he would rather be free to conclude another lease on better conditions, or because the proprietor would not have such a burden (onus) upon his house, it is to be inferred that, in respect of the period of intimation, both parties were conscious of having made a tacit contract to dissolve their relation at any time, according to their convenience,—subject, however, to the conditions determined by the municipal law. The confirmation of the Right to break hire by purchase, may be further shown by certain juridical consequences that follow from such a naked contract of hire as is here under consideration. Thus the Heirs of the Lessee when he dies should not have the obligation imposed upon them to continue the hire, because it is only an obligation as against a certain person and should cease with his death, although here again the legal period of intimation must be always kept in view. The right of the Lessee as such can thus only pass to his heirs by a special contract. Nor, for the same reason, is he entitled even during the life of both parties, to sublet to others what he has hired for himself, without express agreement to that effect.