L. 12 § 1 D. de adq. poss. (41, 2) (ULPIAN.): Nihil commune § 67. habet proprietas cum possessione.

L. I § 2 D. uti possid. (43, 17) (ULPIAN.): Separata esse debet possessio a proprietate; fieri etenim potest ut alter possessor sit, dominus non sit, alter dominus quidem sit, possessor vero non sit; fieri potest ut et possessor idem et dominus sit.

L. 3 § 1 D. de adq. poss. (41, 2) (PAULUS): Et apiscimur possessionem corpore at animo, neque per se animo aut per se corpore.

II. JURA IN RE ALIENA.

§ 68: Fura in re aliena in general.

The exigencies of human intercourse cannot be permanently § 68. satisfied by ownership alone. It must be possible for a person to deal in a manner authorized by law with things which belong to others.

The need we thus experience in the conduct of our affairs for supplementing our own property by the property of others, without being compelled to acquire ownership in the latter, may be satisfied, to some extent, by the aid of obligatory transactions concluded with the owner, such as agreements to let or to lease. But inasmuch as the rights acquired by transactions of that kind are merely obligatory rights (cp. § 73), they are necessarily only available against the person of the obligor. If, for example, a lessee is disturbed in the possession and enjoyment of his land by a person other than the lessor, his rights as lessee do not, in Roman law, entitle him to sue the disturber; he must address himself first to the lessor, so that the latter may interfere to prevent the disturbance and, if necessary, take legal proceedings1.

Thus the rights we acquire in respect of the property of others by means of obligatory transactions are but incomplete; because their effect is merely personal. The need we are here discussing is there

The lessee, in Roman law, can only claim that the lessor should allow him to use the land (supra, pp. 326 and 351, n. 1).

§ 68. fore not adequately met by transactions of this description. There must be rights in respect of the property of others which enjoy a more effectual protection.

§ 69.

It was for the purpose of satisfying the need in question that the real rights in re aliena were developed. The rights they confer in respect of the thing are stronger, because they are absolute, i. e. they are rights which operate and are enforceable as against any third party (cp. p. 325). It is with these real rights in re aliena, which the Romans call 'jura in re' simply, that we have to deal in the following sections. The common characteristic, legally speaking, of all these rights, and that which distinguishes them from ownership, is this, that the rights of control over things which they confer are limited in regard to their contents, although, like ownership, they are directly operative as against any third party who interferes with them. other respects the several jura in re differ essentially from one another in regard to the nature and extent of the control which they confer. The jura in re developed in Roman law are comparatively few, to wit: (1) Servitudes; (2) Emphyteusis; (3) Superficies; (4) Pledge.

§ 69. Servitudes.

The object of Servitudes is to enable persons other than the owner of a thing to share in the benefits derivable from the use of that thing, while preserving the interests of the owner as fully as possible. The ownership is said to 'serve' ('servit '), i. e. it is curtailed, it is not absolutely free, though, at the same time, its effect (economically speaking) is not done away with. On the contrary, as against the servitude, ownership is the dominant right. The old civil law of the Romans very characteristically, therefore, refused to tolerate and admit any jura in re side by side with ownership except servitudes. It insisted that, on principle, ownership should be free, and it consequently declined to acknowledge jura in re otherwise than in the restricted form of servitudes. All the other jura in re were developed at a later period, the right of pledge (§ 72) and superficies (§ 71) by the praetor, emphyteusis (§ 70) by the legislation of the later Empire.

The restrictions imposed upon servitudes in the interests of owner- § 69. ship are twofold. In the first place, servitudes only confer on the person entitled certain specific and clearly defined rights of user; they do not confer a right of possession, in the technical sense (a right, that is, to exclude every one else from the thing), but only a real right of enjoyment, that is, a right to perform particular acts of user in regard to the thing. In the second place, servitudes are inalienable and non-transmissible, being annexed to a definite subject whose destruction entails the destruction of the right. Servitudes may accordingly be defined as real rights of user (i.e. of enjoyment) in respect of a res aliena, limited in their nature and annexed to a definite given subject.

The subject of a servitude is determined in one of two different ways. In the case of a 'personal' servitude, the subject is a definite person; in the case of a 'real' or 'praedial' servitude, the subject is determined by reference to a thing, the owner for the time being of the land (the 'praedium') being the person entitled to the servitude.

Personal servitudes are extinguished by the death of the person entitled, so that, at most, they are rights enjoyed for a life-time. And in Roman law capitis deminutio-in the classical period even capitis deminutio minima (supra, p. 189)—has the same effect as death. On the other hand, praedial servitudes are not (in the absence of other reasons) extinguished till the land itself is destroyed. Personal servitudes which, in respect of the rights they confer, are uniformly wider in scope than praedial servitudes, are all the more restricted in point of duration; praedial servitudes, on the other hand, which may last for ever, are all the more decidedly restricted in respect of their contents.

I. Personal Servitudes.

The most important personal servitudes are: ususfructus, usus, habitatio, operae servorum.

(a) Ususfructus.

A Usufruct confers a real right-for life, at most-to enjoy to the full, and to take the fruits of, a thing not one's own 'salva rei substantia. A usufructuary is not allowed to alter the substance of the thing; in the case of land, for example, he is not allowed to change

§ 69. the mode of cultivation. If the thing undergoes an essential transformation-if, for example, a usufructuary converts a vineyard into a mine the effect is rather to extinguish the usufruct. The usufructuary is only entitled to enjoy the thing in the particular form in which he receives it; he is not entitled to enjoy it in any form he likes.

The usufructuary may either have the use and fruits as they are, or, if he choose, he may take them in the shape of a sum of money, viz. by selling or letting the exercise of the usufruct to a third party. After the termination of the usufruct, the thing must be restored. Hence res consumtibiles (p. 322) do not admit of a usufruct. Where a person is given what is called a 'quasi ususfructus' in consumable things (as where he is bequeathed the usufruct of 1,000 bottles of wine or of a certain amount of capital), the right he acquires in the consumable things really ownership, but ownership qualified by a duty-which, of course, falls on his heir-to restore, after death, the same quantity and quality of consumable things (or their value in money) as he himself had received. Practically, therefore, the result is the same as with a verus ususfructus, but the legal form which the transaction assumes is not that of a usufruct, but of ownership encumbered with an obligation. Every usufructuary with a verus ususfructus must give security that, after the termination of the usufruct, he will return the thing and compensate the owner for any damage done to it through his (the usufructuary's) fault ('cautio usufructuaria'). And in the same way, a quasi-usufructuary is required to give security that he will restore the same quality and quantity as he received. The fact that the quasi-usufructuary is thus bound to give a cautio usufructuaria reduces the ownership he acquires in the res consumtibiles, in some degree, to the level of the rights of a mere usufructuary.

(b) Usus.

A Usus confers on the usuary a real right—for life, at most-to enjoy, and take the fruits of, a thing not his own, but only so far as the enjoyment and fruits are necessary for the satisfaction of his personal requirements. A usuary is therefore debarred, on principle, from letting or selling. Like the usufructuary he must give

security ('cautio usuaria") that he will restore the thing after the § 69. termination of the usus, and that he will exercise care in using the thing, or pay compensation for damage.

(c) Habitatio.

Habitatio is a real right—for life, at most-to live in a house not one's own, but to live there after the manner of a person entitled to maintenance. That is to say, whereas not only a usufructuary, but also a usuary of a house, has the right to determine for himself in what manner, and in what part of the house, he will live, in the case of habitatio it is the owner of the house who determines in what manner, and in what part of the house, the habitator shall live. The habitator, however, is entitled to let out to others the rooms assigned to him for habitation instead of occupying them himself. The object of the habitatio being to enable the habitator to support himself, he (the habitator) is entitled to enjoy the benefit thus intended to be conferred on him in the shape of a sum of money.

(d) Operae Servorum.

By the term 'operae servorum' is meant a limited right to the use of another person's slave. It is a real right—for life, at mostto make use of the working powers of another man's slave, either by accepting his services oneself, or by letting them out to others. Neither habitatio nor operae servorum (the latter of which seem, like habitatio, to have been granted for purposes of maintenance) are extinguished-even in the classical law-by capitis deminutio minima.

pr. I. de usufr. (2, 4): Ususfructus est jus alienis rebus utendi fruendi salva rerum substantia.

§ 1 I. de usu et hab. (2, 5): Minus autem scilicet juris in usu est quam in usufructu. Namque is qui fundi nudum usum habet, nihil ulterius habere intellegitur quam ut oleribus, pomis, floribus, feno, stramentis, lignis ad usum cottidianum utatur; in eoque fundo hactenus ei morari licet, ut neque domino fundi molestus sit, neque his per quos opera rustica fiunt impedimento sit: nec ulli alii jus quod habet aut vendere aut locare aut gratis concedere potest, cum is qui usumfructum habet potest haec omnia facere.

L. 1 pr. D. usufructuarius quemadmodum caveat (7, 9) (ULPIAN.) :