In considering this case it is important to keep in mind that the view of the common law of England and of most of the United States, as to the nature of a lease for years, is not that which is taken by the civil law of Rome, Spain, and France, upon which the Civil Code of Louisiana is based. The common law and the civil law concur in holding that, in the case of an executed sale, a subsequent destruction of the property by any cause is the loss of the buyer. Res perit domino. They also concur in holding that performance of an executory obligation to convey a specific thing is excused by the accidental destruction of the thing, without the fault of the obligor, before the conveyance is made. Taylor v. Caldwell, 3 Best & S. 826; Wells v. Calnan, 107 Mass. 514; Poth. Obl. Nos. 657, 668; Contrat de Louage, No. 65; Rev. Civil Code La. art. 2219, (2216.)
But as to the nature and effect of a lease for years, at a certain rent which the lessee agrees to pay, and containing no express covenant on the part of the lessor, the two systems differ materially. The common law regards such a lease as the grant of an estate for years which the lessee takes a title in, and is bound to pay the stipulated rent for, notwithstanding any injr y by flood, fire, or external violence, at least unless the injury is such a destruction of the land as to amount to an eviction; and by that law the lessor is under no implied covenant to repair, or even that the premises shall be fit for the purpose for which they are leased. Fowler v. Bott, 6 Mass. 63; 3 Kent, Comm. 465, 466; Broom, Leg. Max. (3d Ed.) 213, 214; Doupe v. Genin, 45 N. Y. 119; Kingsbury v. Westfall, 61 N. Y. 356; Naumberg v. Young, 44 N. J. Law, 331; Bowe v. Hunking, 135 Mass. 380; Manchester Warehouse Co. v. Carr, 5 C. P. Div. 507. The civil law, on the other hand, regards a lease for years as a mere transfer of the use and enjoyment of the property; and holds the landlord bound, without any express covenant, to keep it in repair and otherwise fit for use and enjoyment for the purpose for which it is leased, even when the need of repair or the unfitness is caused by an inevitable accident; and, if he does not do so, the tenant may have the lease annulled, or the rent abated. Dig. 19, 2, 9, 2; 19, 2, 15, 1, 2; 19, 2, 25, 2; 19, 2, 39; 2 Gomez, Variae Resolutiones, c. 3, §§ 1-3, 18, 19; Gregorio Lopez, in 5 Partidas, tit. 8, 11. 8, 22; Dom. Droit Civil, pt. 1, lib. 1, tit. 4, § 1, No. 1; Id. § 3, Nos. 1, 3, 6; Poth. Contract de Louage, Nos. 3, 6, 11, 22, 53, 103, 106, 139-155.
It is accordingly laid down in the Pandects, on the authority of Julian, 'if any one has let an estate, that, even if anything happens by vis major, he must make it good, he must stand by his contract,' si quis fundum locaverit, ut, etiamsi quid vi majore accidisset, hoc ei proestaretur, pacto standum esse, (Dig. 19, 2, 9, 2;) and, on the authority of Ulpian, that 'a lease does not change the ownership,' non solet locatio dominium mutare, (Dig. 19, 2, 39,) and that the lessee has a right of action, if he cannot enjoy the thing which he has hired, si re quam conduxit frui non liceat, whether because his possession, either of the whole or part of the field, is not made good, or a house or stable or sheepfold is not repaired; and the landlord ought to warrant the tenant, dominum colono proestare debere, against every irresistible force, omnem vim cui resisti non potest, such as floods, flocks of birds, or any like cause, or invasion of enemies; and if the whole crop should be destroyed by a heavy rainfall, or the olives should be spoiled by blight, or by extraordinary heat of the sun, solis fervore non assueto, it would be the loss of the landlord, damnum domini futurum; and so if the field falls in by an earthquake, for there must be made good to the tenant a field that he can enjoy, oportere enim agrum proestari conductori, ut frui possit; but if any loss arises from defects in the thing itself, si qua tamen vitia ex ipsa re oriantur, as if wine turns sour, or standing corn is spoiled by worms or weeds, or if nothing extraordinary happens, si vero nihil extra consuetudinem acciderit, it is the loss of the tenant, damnum coloni esse. Dig. 19, 2, 15, 1, 2.
So Domat says: 'If the tenant is expelled by the act of the sovereign, by vis major, or by some other accident, or if the property is destroyed by an inundation, by an earthquake, or other event, the lessor, who was bound to give the property, cannot demand the rent, and will be bound to restore so much of it as he has received, but without any other damages; for no one ought to answer for accidents.' Droit Civil, pt. 1, lib. 1, tit. 4, § 3, No. 3.