EMPHYTEUSIS
EMPHYTEUSIS (
ἐμφύτευσις, lit.
“an implanting” ) is a perpetual and “real”
right in (agricultural) land which belongs to another person, entitling the
emphyteuta to cultivate it practically as
though it were its own, on condition of paying a fixed rent (
pensio, canon) to the
dominus or owner: the nearest analogy to it to be found in
England is supplied by those lands which are let at what is called a
“fee-farm” rent ( “feodifirma,”
Magna Carta, 100.37).
The origin of emphyteusis is traceable to the
agri
vectigales, first distinctly mentioned about the time of
Hadrian; large tracts of grazing land in Italy, belonging to the state,
religious corporations (e. g. the Vestal Virgins), or the smaller civitates
and municipia, but held and enjoyed by private persons subject to the
payment of a perpetual rent (
vectigal), or let
out upon very long leases. The rights of such occupiers, at first purely
contractual, acquired a “real” character, analogous to that of
genuine ownership, from the praetor, who protected their possession (
Dig. 2,
8,
15,
1) by interdicts and by a
utilis actio in rem (
actio
vectigalis,
Dig. 39,
2,
15,
26), availing even
against the lessor when non-payment of rent was not alleged (
Dig. 6,
3,
1,
2). An addition had thus been made to the
jura in re aliena of Roman law: the right
was alienable both
inter vivos and by will, and
descended to the tenant's heirs on his intestacy, though apparently it had
not yet acquired a specific name, and the rules
[p. 1.731]relating to it were as yet somewhat unsettled. Gaius says (3.145) that in
his day it was a question whether the tenant's interest did not so closely
resemble
dominium as to make the transaction a
sale rather than a contract of hiring and letting, but the better opinion
was in the negative. After the third century the practice of letting
agricultural lands of all kinds on these terms was very largely adopted,
especially in the Eastern Empire, by private persons no less than by the
emperor and corporations of all kinds: in the imperial enactments after
Constantine the terminology is changed, lands so let being termed
praedia emphyteuticaria, and the rent called
pensio or
canon more often than
vectigal. The
precise nature of these perpetual leases and of the
emphyteuta's right was determined by the Emperor Zeno
(
Inst. 3.24, 3), who enacted that the transaction should
be governed by the rules neither of sale nor of hire, but be a special
contract by itself: and his settlement of the law passed with little or no
alteration into the Corpus Juris of Justinian.
The
emphyteuta is opposed to the
dominus, or owner, of the land over which his right
extends; that is to say, his interest is merely a
jus in
re aliena: he has, however, possession, though whether a
“representative” possession of the land itself (as Savigny
holds) or merely a
juris quasi-possessio, the
notion of possession being analogically extended from a thing to a mere
right (as Arndts and other civilians maintain), is uncertain; but whatever
the quality of the possession, it is protected by the ordinary possessory
interdicts. He may, moreover, do almost anything with the land that a
judicious owner would do, unless there are special restrictive covenants. He
may cultivate it in what way he pleases, turning pasture into meadow or
plough lands at his discretion (herein being clearly distinguishable from
the usufructuary), provided he does not permanently depreciate it: otherwise
he is liable to eviction by legal process. Its fruits are his so soon as
they are separated from the soil (
Dig. 22,
1,
25,
1); his rights are heritable, and alienable both
inter vivos and by will. If he proposed to transfer his
interest, he had (under penalty of eviction) to give notice to the
dominus, who had during two months a right of
pre-emption at the price agreed on: and even if he did not avail himself of
this right, the person of the proposed alienee had to be approved by him in
writing, though he could refuse such approval only on reasonable grounds;
and he was entitled to a commission of 2 per cent. on the purchase-money in
consideration of his acceptance of a new tenant: the latter succeeded to all
his predecessor's liabilities in respect of the land. The
emphyteuta also had the right of letting the land on lease to
a third person, and he could pledge or mortgage it and create servitudes
which bound it so long as his own interest endured: finally, in the form of
utiles actiones he enjoyed all the remedies
of a fall
dominus. His duties were to keep the
land in good tenantable condition, though being under no obligation to
increase its value he had apparently no claim to compensation for
un-exhausted improvements; to pay all taxes assessed upon it
(
Nov. 7, 3, 2; 120, 8) and his rent with regularity. So long
as this was in arrear he could not enforce his rights over the land against
either the
dominus or his representatives (e.
g. his mortgagee,
Dig. 13,
7,
16,
2); and if
it was in arrear three years (or two if the
dominus was a spiritual person), the owner could evict him by
legal process.
Emphyteusis might arise from contract, legacy, judicial decree, and possibly
prescription. If the land belonged to the church or a spiritual person, the
contract must be in writing, which was also necessary in all cases where the
parties desired in any way to vary the ordinary legal rules as to this
species of interest in land (Cod. 4, 66, 1;
Nov. 120, 6, 2):
but it does not seem that the contract ever required
traditio or livery for the perfect constitution of the right.
The right of the
emphyteuta might be
extinguished in the same ways as any other
jus in re
aliena (e.g. destruction of the land,
confusio, &c.); besides these, renunciation or
surrender, forfeiture, and prescription seem to have been common.
Renunciation had no effect unless accepted by the
dominus: the chief cases of forfeiture have been noticed
above under the head of eviction. (
Dig. 6,
3;
39,
4; Cod. 4, 66; A. Vuy,
de originibus et natura juris
emphyteutici Romanorum, 1838; Gesterding,
Eigenthum, p. 378 ff.; Von Buchholtz,
Jurist.
Abhandl, No. 25, “Über die Unterschiede zwischen der
Emphyteusis und Superficies;” Arndts,
Zur Lehre von der
Emphyteuse; Giess,
Zeitschr. iii. pp. 245 ff.,
367 ff.; Holtzendorff,
Rechtslexicon, s. v.
“Emphyteusis.” )
[
J.B.M]
