TIT. IV. DE USUFRUCTU.

Ususfructus est jus alienis rebus utendifruendi salva rerum substantia. Est enim jus in corpore: quo sublato et ipsum tolli necesse est.

Usufruct is the right to use and enjoy things belonging to others, provided that the substance of the things used remains unimpaired. For it is a right over something corporeal; and if this thing perishes, the usufruct itself necessarily perishes also.

D. vii. 1. 1, 2.

We now pass to personal servitudes, those, namely, which consist of a jus in rem, i.e. one portion of the dominium, being detached from the rest for the benefit of a person. Personal servitudes differed from real in being applicable to moveables as well as to immoveables; and the personal servitude ususfructus was divisible, that is, some of the fruits included in the servitude might be parted with, although the servitude usus was, like real servitudes, indivisible.

The person to whom the ususfructus was given had two rights | united; he had the jus utendi, that is, the right of making every possible use of the thing apart from consuming it or from taking the fruits of it, as, for instance, the right of living in a house or employing beasts of burden; and he had also the jus fruendi, the right of taking all the fruits of the thing over which the servitude was constituted. The definition of fructus is quicquid in fundo nascitur (D. vii. 59. 1), that is, the ordinary produce, but not accidental accessions or augmentations, such as a treasure found (D. xxiv. 3. 7. 12) or islands formed in a river.

He might sell, or let, or give his right of taking the fruits to another, and the profits he thence derived were termed his fructus civiles. (D. vii. 1. 12. 2.) It was only such of the fructus as were actually taken or gathered by him, or those acting under him, that belonged to him; and no fruits which were not gathered at the time of his death passed to his heir. He was obliged to give security, on entering on the exercise of his right, that he would use his right as a good paterfamilias, and give up, at the time when his right expired, the possession of the thing. (D. vii. 9. 1.) We have had an instance of what was meant by using his right as a good paterfamilias in paragr. 38 of Tit. 1, where it is said that he is bound to replace dead sheep and dead trees. He was also bound not to alter the nature of the thing over which the right extended; he could not, for instance, build on land unbuilt on, or change the use to which land was specially destined. (D. vii. 1. 7. 1; D. viii. 13. 4.) And it is with reference to this that the words salva rerum substantia, in the text, are sometimes understood, so that the sentence would mean, usufruct is the right of using and taking the fruits of things belonging to another, but

so as not to alter the substance. Ulpian (Reg. 24. 26) certainly uses the words salva rerum substantia in a sense very similar; but the concluding words of the section make it more natural to understand salva rerum substantia as referring here to the duration of the usufruct. It lasts as long as the thing over which it is constituted remains unaltered; for if the thing perishes, the usufruct perishes. The two sentences of this section are taken without alteration from the Digest, but are from different authors, the first being from Paul, the latter from Celsus. (D. vii. 1. 1. 2.) Very probably Paul did not use the words salva rerum substantia with reference to the duration of the servitudes; but the compilers of the Institutes saw that, if they were used in this sense, the two sentences would cohere together.

1. Ususfructus a proprietate separationem recipit idque pluribus modis accidit. Ut ecce si quis alicui usumfructum legaverit; nam heres nudam habet proprietatem, legatarius usumfructum: et contra si fundum legaverit deducto usufructu, legatarius nudam habet proprietatem, heres vero usumfructum: item alii usumfructum, alii deducto eo fundum legare potest. Sine testamento vero si quis velit alii usumfructum constituere, pactionibus et stipulationibus id efficere debet. Ne tamen in universum inutiles essent proprietates semper abscedente usufructu, placuit, certis modis extingui usumfructum et ad proprietatem reverti.

1. The usufruct may be detached from the property; and this separation takes place in many ways: for example, if the usufruct is given to any one as a legacy; for the heir has then the bare ownership, and the legatee has the usufruct; conversely, if the estate is given as a legacy, subject to the deduction of the usufruct, the legatee has the bare ownership, and the heir has the usufruct. Again, the usufruct may be given as a legacy to one person, and the land minus this usufruct may be given to another. If any one wishes to constitute a usufruct otherwise than by testament, he must effect this by pacts and stipulations. But, lest the property should be rendered wholly profitless by the usufruct being for ever detached, it has been thought right that there should be certain ways in which a usufruct may become extinguished, and be again absorbed in the property.

D. vii. 1. 6; D. xxxii. 2. 19; D. vii. 1. 3. pr. and 2.

We may refer to what we have said in the note to the fourth section of the last Title for the modes in which usufructs were acquired. In the time of Justinian they were constituted, 1, by testament; 2, by agreements followed by quasi-tradition; 3, by being reserved in an alienation of the nuda proprietas; 4, by adjudication; and also, lastly, lege, by express enactment, an instance of which we have in the first paragraph of the ninth Title of this Book, where it is said that, under Justinian's legislation, the father acquired the usufruct of his son's peculium; 5, whether they could be acquired by usucapion is not certain-probably they could.

It will be observed that, in putting the third case of gift of usufruct by testament, that, namely, in which the usufruct is given to one legatee, the nuda proprietas to another, the gift to

the latter is expressed by the words fundum deducto usufructu. The Digest (xxxiii. 2. 19) explains why the words deducto usufructu should, in such a case, be carefully added to a gift of the fundus; for if they were not, the second legatee would be treated as having the nuda proprietas, and also as having a joint interest in the usufruct with the first legatee.

2. Constituitur autem ususfructus non tantum in fundo et ædibus, verum etiam in servis et jumentis ceterisque rebus, exceptis his, quæ ipso usu consumuntur: nam eæ neque naturali ratione neque civili recipiunt usumfructum. Quo numero sunt vinum, oleum, frumentum, vestimenta. Quibus proxima est pecunia numerata: namque in ipso usu adsidua permutatione quodammodo extinguitur. Sed utilitatis causa senatus censuit, posse etiam earum rerum usumfructum constitui, ut tamen eo nomine heredi utiliter caveatur. Itaque si pecuniæ ususfructus legatus sit, ita datur legatario, ut ejus fiat, et legatarius satisdat heredi de tanta pecunia restituenda, si morietur aut capite minuetur. Ceteræ quoque res ita traduntur legatario, ut ejus fiant: sed æstimatis his satisdatur, ut, si morietur aut capite minuetur, tanta pecunia restituatur, quanti eæ fuerint æstimatæ. Ergo senatus non fecit quidem earum rerum usumfructum (nec enim poterat), sed per cautionem quasi usumfructum constituit.

2. A usufruct may be constituted not only of lands and buildings, but also of slaves, of beasts of burden, and everything else except things which are consumed by being used, for they are susceptible of a usufruct neither by natural nor by civil law. Among such things are wine, oil, wheat, garments, and of a like nature coined money; for it, too, is in a manner consumed in the very use made of it, through continually passing from hand to hand. But the senate, thinking such a measure would be useful, has enacted that a usufruct even of these things may be constituted, if only sufficient security is given to the heir; and therefore, if the usufruct of money is given to a legatee, the money is considered to be given to him in complete ownership; but he has to give security to the heir for the repayment of an equal sum in the event of his death or his undergoing a capitis deminutio. All other things, too, of the same kind are delivered to the legatee so as to become his property; but their value is estimated and security is given for the payment of the amount at which they are valued, in the event of the legatee dying or undergoing a capitis deminutio. The senate has not then, to speak strictly, created a usufruct of these things, for that was impossible, but, by requiring security, has established a right analogous to a usufruct.

D. vii. 1. 3. 1; D. vii. 5. 1. 3; D. vii. 5. 2. pr. and 1; D. vii. 5. 7.

Properly only things quæ in usu non consumuntur could be the subject of a servitude which consisted in using things only for a time; but as things que usu consumuntur, things that perish in the using, are things that may for the most part be easily replaced by similar things of an equal quantity and quality, the senatusconsultum referred to in the text (the date of which is uncertain, but is probably not later than Augustus) permitted that things que usu consumuntur should be made subject to a kind of usufruct by which they might be consumed at once, and then, on an event occurring by which a real usufruct would have expired, that is, the death or capitis deminutio of the usufructuary, they were to be replaced by similar things, or, what effected the

same object in a different way, their pecuniary value was estimated on the commencement of this quasi-usufruct, as it is termed, and paid at its expiration. Ulpian gives the following as the terms of the senatusconsultum: Ut omnium rerum quæ in cujusque patrimonio esse constaret, ususfructus legari possit. (D. vii. 5. 1.)

It will be observed that the text includes garments, vestimenta, among things of which there was only a quasi-usufruct, whereas the Digest twice speaks of them as things of which there was a real usufruct. (D. vii. 1. 15. 4; vii. 9. 9. 3.) They were, in fact, one or the other according as it was the garments or their value that was to be given to the owner of the nuda proprietas at the end of the usufruct, and this might depend on the intention of the parties or the nature of the materials.

Satisdatur. The usufructuary not only guaranteed by a stipulation the replacement of the things or the payment of their value, but he procured a surety (fidejussor) to guarantee it also.

3. Finitur autem ususfructus morte fructuarii et duabus capitis deminutionibus, maxima et media, et non utendo per modum et tempus. Quæ omnia nostra statuit constitutio. Item finitur ususfructus, si domino proprietatis ab usufructuario cedatur (nam extraneo cedendo nihil agitur): vel ex contrario si fructuarius proprietatem rei adquisierit, quæ res consolidatio appellatur. Eo amplius constat, si edes incendio consumptæ fuerint vel etiam terræ motu aut vitio suo corruerint, extingui usumfructum et ne areæ quidem usumfructum de

beri.

3. The usufruct is terminated by the death of the usufructuary, by two kinds of capitis deminutio, namely, the greatest and the middle, and also by not being used according to the manner and during the time fixed; all which points have been decided by our constitution. The usufruct is also terminated if the usufructuary surrenders it to the owner of the property (a cession to a stranger would not have this effect); or, conversely, by the usufructuary acquiring the property, which is called consolidation. Again, if a building is consumed by fire, or thrown down by an earthquake, or falls through decay, the usufruct of it is necessarily extinguished, nor does there remain any usufruct due even of the soil on which it stood.

C. iii, 33 16, pr. and 1, 2; GAI. ii. 33.

The text points out five ways in which the usufruct would terminate. 1. By the death or capitis deminutio of the usufructuary. If the usufruct belonged to a city or corporation which could not die, it lasted for a hundred years, as being the extreme length of the duration of human life. (D. vii. 1. 56.) Previously to Justinian the minima capitis deminutio extinguished a usufruct (PAUL. Sent. iii. 6. 29), because the person who underwent it was not the same person in the eyes of the law after undergoing it as he was before; he commenced a new existence. Justinian altered the law in this respect (C. iii. 33. 16), and he also decided a question which had divided the jurists, whether a usufruct acquired by a slave or a filiusfamilias terminated on the death of the slave, or death or capitis deminutio of the son, or whether it

remained for the benefit of the master or father. He decided that it should remain until the master's or father's natural or civil death, and further, that in the case of a filiusfamilias, it should also continue for his benefit after his father's death; so that the father had the usufruct for his life, and then the son, if he survived the father, had it for his life. (C. iii. 33. 16. 17.)

2. Non utendo per modum et tempus. Secondly, the usufructuary might lose the usufruct by not using it in the way agreed on by the parties during the time fixed by law. The usufructuary might, for instance, have the use of a fundus for the summer, and if he used it only during the winter he would not use the usufruct of the fundus in the way it was given him, and this was equivalent to not using it at all; and if he did not exercise his right at any period previous to the time fixed by law as that when the usufruct became extinct by non-usage, his right was gone. This time was, under the old law, one year when the usufruct affected moveables, and two years when the usufruct affected immoveables. If this period elapsed without the right being exercised, the owner of the nuda proprietas gained the usufruct by usucapion. Justinian altered this by fixing three years as the time for moveables, and ten or twenty years for immoveables, according as the person affected was present or absent. (See Tit. 6. 1.) The usufructuary was placed so far in the position of an owner of a thing, that it required the same length of time to make him lose the usufruct as it did to make the owner lose the property. Hence it is said in the Code (iii. 33. 16. 1) that he was not to lose the usufruct unless talis exceptio (i.e. of usucapion) usufructuario opponatur, quæ etiam si dominium vindicabat, poterat eum præsentem vel

absentem excludere.

Non-usage and the minima capitis deminutio only affected rights already commenced; and in order to avoid their effects the usufruct was often given by legacy in singulos annos, vel menses, vel dies. As a new usufruct thus began each year, month, or day, there could be no non-usage for a longer time than the duration of each usufruct, and the minima capitis deminutio only affected the usufruct existing at the time it was undergone. (D. vii. 4. 1. 1.),

3. Si domino cedatur. Thirdly, the usufruct was lost if it was surrendered to the owner of the nuda proprietas. The words cedatur and cedendo belong, in the passage of Gaius from which this part of the section is taken, to the in jure cessio, the fictitious suit by which personal servitudes were given up in the time of Gaius. This mode of giving up servitudes to the dominus being obsolete, less technical words would be more appropriate in the text. The usufructuary could not transfer the usufruct to another, because the usufruct attached to him personally, and was to terminate by his death or capitis deminutio, and not by that of a stranger. He could allow another to exercise his right of taking the fruits until he himself died or lost the servitude, but this did not make that person the owner of the usufruct.

K