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USUS is defined (Dig. 7, 8, 2) by the negation of frui: “cui usus relictus est, uti potest, frui non potest.” But the right of mere user was not strictly confined to the personal needs of the usuary, e. g. the person who had a usus of a house was entitled to lodge there his family, slaves, servants, and freedmen, and apparently even a guest, though this had been doubted (Inst. 2.5, 2; Dig. 7, 8, 2, 1; ib. 3; ib. 4, 1): but anything which came under the notion of fructus was as a rule denied him, so that he could not let the res usuaria out, or transfer the exercise of his right to a third person even gratuitously (Inst. 2.5, 1; Dig. 7, 8, 11). The contrast between usus and ususfructus is very characteristically marked in connexion with acquisition through slaves: “de iis autem servis, in quibus tantum usumfructum habemus, ita placuit, ut quidquid ex re nostra vel ex operis suis acquirant, id nobis acquiratur” (Inst. 2.9, 4). “Per servum usuarium si stipuler vel per traditionem accipiam, an acquiram, quaeritur, si ex re mea vel ex operis ejus. Et si quidem ex operis ejus, non valebit, quoniam nec locare operas ejus possumus: sed si ex re mea, dicimus, [p. 2.990]servum usuarium stipulautem vel per traditionem accipientem mihi acquirere, quum hac opera ejus utar” (Dig. 7, 8, 14, pr.).

But in certain cases, especially where the usus was bequeathed by will (on the principle “in testamentis plenius voluntates testantium interpretamur,” Dig. 50, 17, 12), tile uti comprised or was interpreted as frui: viz. (1) Where the sole utility of the property was in its fruits, as in a usus silvae (Dig. 7, 8, 22), or pecuniae (Dig. ib. 5, 2; ib. 10). (2) Where the usuary cannot “use” the property at all, or can use it only in part, so that from the other part he would derive no benefit: e. g. where the usus is over land with a house, he may live in the house, and take from the fruits of the land so much as he requires for the daily wants of himself, his family, and dependents (Inst. 2.5, 1; Dig. 7, 8, 12, pr. and 1; ib. 15); or where it is over a house too large for his personal needs, he may let the part which he does not want for himself (Dig. 7, 8, 2, 1; ib. 4). The usuary was subject to substantially the same duties as the usufructuary, and for securing the performance of these he had to enter into a cautio usuaria (Dig. 7, 9, 5, 1; ib. 11): he also had to bear the costs of repairs and to pay the taxes if the property produced no fruits for the owner: otherwise these charges fell on the latter. If the right to fructus was vested separately from the usus in a third person, the latter (or otherwise the owner) could demand access, &c. to the things for the purpose of taking them (Inst. 2.5, 1; Dig. 7, 8, 10, 4; ib. 11, 12, pr., &c.).

(Inst. 2.4 and 5; Gaius, 2.30-33; Paul. Sent. rec. 3.6, 17-33; Fragm. Vat. 41-93; Dig. 7, 1 sqq.; 33, 2;--Cod. 3, 33; Pellat, Sur la Propiété et sur l'Usufruit, 1853; Kohnfeldt, Die sogenannte irregulären Servituten nach römischen Rechte, 1862; Burkel, Beiträge zur Lehre vom Niessbrauch, 1864; Roby, Introduction to the Digest: text and commentary on Dig. 7, 1 (1884). On quasi-usufruct, see Held, Die Lehre vom Ususfructus earum rerum quae usu consumuntur vel minuuntur, 1848; and Puchta, Ueber das Alter des Quasiususfructus, Rhein. Museum für Jurisprudenz, vol. iii. p. 82; and on usus, Beckmann, Ueber den Inhalt und Umfang der Personalservitut des Usus nach römischen Rechte, 1861.)


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