USUSFRUCTUS
USUSFRUCTUS and USUS were two of the personal servitudes of
Roman law (
Dig. 8,
1,
1): for the nature of the distinction between them and
praedial servitudes, see
SERVITUTES
Ususfructus is defined as “jus alienis rebus utendi fruendi salva rerum
substantia” (
Dig. 7,
1,
1; Inst. 2.4, pr.); it is the
“real” right of using and taking the fruits of property,
movable (including slaves) as well as immovable, the use of which does not
diminish its substance: “est enim jus in corpore, quo sublato et ipsum
tolli necesse est” (Inst.
ib.; Dig. ib.
2: cf.
Cic. Top. 3, “usus
enim,
non abuses legatus est” ). The
person entitled is called
usufructuarius or
fructuarius (
Dig.
7,
8,
14,
1-
3); the owner of the
property subject to the right,
proprietarius or
dominus proprietatis (Inst. 2.4, 3); and
his ownership, so long as the usufruct subsists,
nuda
proprietas (Inst. ib. 1). Unless otherwise provided by the
disposition in which it originated, a usufruct endured for the lifetime of
the person entitled and no longer (Inst. 2.4, 3;
Dig.
45,
1,
38,
12): if vested in a juristic person, it could not
last beyond a hundred years except by express provision (
Dig. 7,
1,
56).
The things over which usufruct could exist were properly only tangible
objects of property, in the use of which lies the true and essential notion
of a servitude: the right of taking fruits was probably a later extension.
Hence the Romans did not recognise a fructus sine usu (Paul.
Sent.
rec. 3.6, 24;
Dig. 7,
8,
14,
1); and if a
right (e. g.) to take the annual fruits of an estate were given, it was
construed either as a usufruct (which was usual in cases of bequest:
Dig. 7,
1,
20), or as a mere right in personam and not a servitude at all.
Unless his rights were otherwise limited in the disposition by which they
were created, the usufructuary was entitled to the detention or
“natural” possession of the property (
Dig. 41,
2,
12,
pr.; 43, 17, 4;--Gaius, 2.93; Inst. 2.9, 4): to make any lawful use of it he
pleased (
Dig. 7,
1,
12,
1; ib. 15, 4; ib. 23, 1,
&c.), and to take its fruits, whether natural, industrial, or what
are termed
fructus civiles, e.g. money made by
letting out a thing on hire (Dig. ib. 7, pr. and 1; ib. 9, pr.; ib. 15,
&c.). His title to natural fruits was
perceptio, actual taking of possession (Inst. 2.1, 36); but
though in the case of land, for instance, he was entitled to collect and
keep for himself all the fruits which were already on it, and all that were
produced during the time of his enjoyment, he had no right to those which
existed on the land when his interest terminated unless he had taken
possession of them. Nor had he rights of any kind over accessions of the
principal object (e. g. the issue of an ancilla, Inst. 2.1, 37;
Dig. 7,
1,
68, pr.; or “insula in flumine nata,” Dig. ib. 9,
4), unless they were immediately bound up with so as to form an integral
part of it (e. g. alluvio), in which case the accession also was subject to
the usufruct. He might also exercise all rights annexed to the property,
such as praedial servitudes. But all these rights are qualified by the words
“salva rerum substantia:” they must not be exercised so as
to injure the reversionary interest of the dominus, so that he may not deal
with the res fructuaria otherwise than as a “bonus
paterfamilias” (Inst. 2.1, 38): rather he must act as carefully and
economically as though he were himself its owner, “boni viri
arbitratu” (
Dig. 7,
1,
9, pr.; 7, 9, 1, pr.): “causam
proprietatis deteriorem facere non debet.” His duties in this
respect seem to be of two kinds: firstly, not to put the thing to other or
at any rate inferior uses than has been customary (e. g. to employ a slave
in work of mere drudgery who has been engaged before in artistic or literary
occupations:
Dig. 7,
1,
15,
1); and secondly,
not to change its character, even though it might thus be improved or made
more valuable; e. g. he may not convert a pleasure into a fruit garden (Dig.
ib. 13, 4), build on land save so far as is necessary for storage of its
fruits (ib. 13, 6), or raze buildings already standing. As regards acts of
waste, as they would be termed in English law, it would seem that in the
absence of provision to the contrary he might, at any rate, dig for
minerals, but only if the estate subject to his right was of considerable
extent (Die. ib. 9, 3; ib. 13, 5): upon this subject see Vangerow,
Lehrbuch der Pandekten, § 344, notes 1 and 2.
These common law rights of the usufructuary might, however, be curtailed by
the disposition by which they were created, or even, it would seem, by
subsequent agreement between the parties, in respect both of the usus and
the fructus, or of either: e. g. he might be allowed to take certain kinds
of fructus only, or a right which ordinarily is praedial (such as aquae
haustus) might be conferred on one man by another as a personal servitude
(
Dig. 34,
1,
14,
3).
A usufruct might be released to the owner of the property, in Gaius' time
(2.30) by
in jure cessio [JURE CESSIO], in Justinian's by any act conclusive of the
intention to surrender (Inst. 2.4, 3): but it could not be alienated by the
usufructuary to a third person (Gaius and Inst.
l.c.;--
Dig. 23,
3,
66;
10,
2,
15), though he might
assign the exercise or enjoyment of it (even by way of pledge or mortgage),
the actual right remaining in himself (
Dig. 7,
1,
12,
2; ib.
[p. 2.989]38-40). The effect of an attempt to
transfer it absolutely to a third person was in Gaius' time disputed: he
himself (2.30) says that it was nugatory, while Pomponius, his contemporary,
affirms (
Dig. 23,
3,
66) that it caused a forfeiture to the dominus: of
these two views the first was adopted by Justinian, who reproduces it in the
Institutes (2.4, 3).
Subject and without prejudice to the usufructuary's rights, the owner of the
property might deal with it as he pleased (
Dig. 7,
1,
7,
1; ib. 13, 7, &c.), e. g. alienate or pledge it (Cod. 3, 33,
2): but he could not even with the other's consent create any servitudes
over it which would injuriously affect the latter's rights (
Dig. 7,
1,
15,
7) or surrender servitudes existing in its
favour.
The usufructuary was bound to indemnify the owner for any loss occasioned by
his dealing with the property in excess of his legal rights (Inst. 2.1, 38;
Dig. 7,
1,
9, pr. and 2; ib. 65, pr.): to see that no servitudes
appurtenant to it were extinguished by non-user (Dig. ib. 15, 7): to keep
buildings in ordinary repair (ib. 7, 2) and land in proper cultivation and
tenantable condition (Inst. 2.1, 38): to maintain the numbers of flocks and
herds by replacing cattle, &c. which died (ib.): to pay all rates,
taxes, &c. charged on the property itself (
Dig.
7,
1,
7,
2; ib. 27, 3), and when his interest determined to
restore it to the person entitled along with all accessions (
Dig. 7,
9,
1, pr.; ib. 9, 3). To secure the performance of these duties he must
enter into a cautio usufructuaria [
CAUTIO], supported by sureties, with the owner; a practice
originally introduced where the usufruct was created by bequest, but
subsequently extended to nearly all cases (
Dig. 7,
1,
13, pr.; Cod. 3, 33,
4); and until this was done the owner might either refuse to let him have
the enjoyment of the property, or bring an action to compel him to give the
requisite security (Dig.
loc. cit.: 7, 9, 7, pr.):
and though this obligation might be surrendered by the owner, where the
usufruct was based on contract, if a testator bequeathed such a right to
another person, and by his will released him from the cautio, the release
was taken pro non scripto (
Dig. 36,
4,
6, pr.; Cod. 6, 54, 7). For
the legal remedies (actions and interdicts) by which the usufructuary and
usuary could enforce their rights, reference should be made to the article
on
SERVITUTES
The modes in which ususfructus and usus were created were the same in general
as for all servitudes, and for these the reader may be referred to the same
article. The commonest was testamentary disposition, the right being either
bequeathed directly, or the heir being directed to constitute it in favour
of the legatee: “ususfructus uniuscujusque rei legari potest, et aut
ipso jure constituetur aut per heredem praestabitur: ex causa
damnationis [
LEGATUM] per
heredem praestabitur, ipso jure per vindicationem” (Paul.
Sent. rec. 3.6, 17). In certain cases usufruct arose ipso
jure in virtue of statutory enactment (
lex); e.
g. the pater's usufruct in the peculium adventitium of his son in power
(Inst. 2.9, 1;--
Dig. 8,
6,
5;
8,
5,
1, &c.). Similarly, these rights
were extinguished in the ways common to all servitudes.
The inconvenience of the rule which, on grounds of both natural and civil law
(Inst. 2.4, 2), excluded from usufruct things “quae usu tolluntur vel
minuuntur” (such as money, provisions, and clothes), led to the
enactment of a senatusconsultum which legalised bequests of usufruct over
such kinds of property, the legatee being entitled to enjoy them on giving
security to the heir that on his death or capitis deminutio he would return
him things of a similar quantity or quality, or pay him their estimated
value (Inst. 2.4, 2;
Dig. 7,
5,
1). As Justinian says, the senate did not
introduce a genuine usufruct in such things, for that was impossible,
“sed per cautionem quasi usumfructum constituit.” The date
of the senatusconsultum is not precisely known, but it is supposed to lie
between Cicero (on account of
Top. 3: “Non debet ea
mulier, cui vir bonorum suorum usumfructum legavit, cellis vinariis et
oleariis plenis relictis, putare id ad se pertinere; usus enim, non
abusus legatus est” ) and the enactment of the Lex Papia Poppaea
(A.D. 9), which often speaks of usufruct over part of a whole property. The
difference between the new right and usufruct proper lies in the fact that
the person entitled became owner of the property in question ( “ita
datur ut ejus fiat,” Inst. 2.4, 2), so that the notion of a jus
in re aliena is entirely absent: he may consume it entirely, and so has not
to return it in specie. The main purpose of the innovation was doubtless to
enable testators to bequeath a general usufruct over the whole of their
property (
Dig. 33,
2,
24, pr.; Cod. 3, 33, 1), but such rights were also
constituted over nomina or “choses in action,” whereby the
person to whom they were given became entitled to call in the debt, or to
take the interest payable on it (
Dig. 7,
8,
2,
1; ib. 4): if it was the debtor himself, he was released from the
obligation to pay interest, though he must give security for the discharge
of the debt at the proper time (
Dig. 7,
8,
12, pr. and 1). Whether
clothes could be the subject of a true usufruct seems to have been doubtful:
Dig. 7,
1,
15,
4;
7,
9,
9,
3, is for the affirmative: Inst. 2.4, 2, for the
negative.
[
J.B.M]
