USUS
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.)
[
J.B.M]
