ususfructus

USUSFRUCTUSand 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. 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.

The so-called “real” right of using and taking the fruits of property, whether movable or immovable, whose use does not diminish its substance and value. It was one of the “servitudes,” as to which see servitutes.