Exercise of Usufruct

The usufructuary was given two rights, the right of use and the right to take the fruits of the property. The usufructuary was also subject to certain obligations.

(1) Use

As long as the usufruct lasted, the usufructuary had the sole right to use the prop­erty.

(2) Fruits

The usufructuary was entitled to the fruits of the property, such as crops pro­duced from land, and also such things as the offspring of animals and milk, hair or wool produced by animals.^[1546] The usufructuary gained ownership of the fruits when they were separated from the principal, with the result that any fruits unharvested when the usufruct came to an end went to the owner of the property rather than to the heir of the usufructuary.^[1547]

Where a slave was held on usufruct, the right to fruits included the right to the slave's labour and any profits derived from it. A gift or legacy to a slave was not a fruit, however, and so was acquired by the owner of the slave unless it was given for the usufructuary's sake.^[1548]

One curious exception to the rule that offspring belonged to the usufructuary was that, where a slave was held on usufruct, any offspring of the slave belonged to the owner rather than the usufructuary.^[1549] Justinian tells us that this is because it would be ‘absurd' for a human being to be considered a fruit, as nature provides fruits for human beings.^[1550] The true basis for the rule is uncertain.

The concession to humanity went no further than this, that the law would not countenance a rule which implied that slaves might be farmed... Offspring are notfructus² because, different from livestock, the fertility of slaves is not callously managed in the interests of productivity.^{[1553] [1554]}

It is impossible to be certain of the reasoning behind the rule. For us, for whom slavery is outside our experience, it is difficult or impossible to follow fully a course of reasoning where slavery is taken for granted. All the same, it is difficult to believe that a culture that allowed a human being to be held in slavery would have very much regard to that individual’s humanity. Indeed, in a scholarly arti­cle, the late Supreme Court judge Lord Rodger pointed out that slave women were indeed bought with regard to their fertility.^[1555] An alternative view of the question of why slave children did not count as fruits might consider the fact that human children are much more dependent on others for their support, requiring adult care for a much longer time and to a much greater degree than is normal for animals. An infant animal has an immediate economic value. By contrast, considered solely in economic terms, a child is more of a burden than an asset for many years after its birth.^[1556] It might easily happen that either the usufructuary or the slave would die before the slave was old enough to be productive. Particularly in a society where the chances of the child reaching adulthood may be estimated as being less than 50 per cent,^[1557] it may have been thought more appropriate for this burden to fall on the owner of the mother rather than on the usufructuary.

(3) Preserving the Substance of the Property

As has already been mentioned, the usufructuary was required to preserve the substance of the property. This was a limitation on the rights of the usufructu­ary. Except for the taking of fruits, the usufructuary was not entitled in principle to encroach on the substance of the property. The usufructuary could not, for example, demolish a building on the land that was subject to the usufruct.

Particular issues arise with timber, mines and quarries. Timber was not con­sidered to be a fruit of the land, and so did not fall within the usufructuary’s right to fruits.^[1558] Instead, it was considered to be part of the land, and so had to be maintained just as the rest of the property did. The usufructuary could, however, cut smaller trees for ordinary domestic use.^[1559]

It might be expected that any activity involving removal of material from the property would be prohibited, as an encroachment on the substance of the property.^[1560] In Scots law, this is only permitted to a very limited extent. Other than taking minerals (such as coal or peat) for domestic use,^[1561] in Scots law the liferenter may only use existing mines and quarries, and even then only to the extent of the previous use and as long as there is no danger of exhaustion.^[1562] Roman law was much more permissive of mines and quarries. In Roman law, the usufructuary could use any existing mines and quarries, and open up new ones as long as that did not prejudice the agricultural use of the land or at least was more profitable than the land's existing use.^[1563] This was, however, subject to the bonus vir (‘reason­able man') standard so, for example, the usufructuary could not make improve­ments that would not be sustainable by the owner of the property.^[1564]

(4) Remedies of the Owner

The usufructuary did not own the property, and the owner was entitled to get the property back at the end of the usufruct unimpaired in its substance.

To supplement these general remedies protecting the owner's interest in the property, the praetor could compel the usufructuary to give an enforceable under- taking^[1567] regarding his or her management of the property. This undertaking is known as the cautio usufructuaria. First, the usufructuary undertook to manage the property in the manner of the bonus' vir, which here can be translated as ‘reason­able man'.^[1568] This, Ulpian tells us, means that the usufructuary undertakes not to allow the value of the property to deteriorate and to manage the property with the same care as with his or her own property.^[1569] Second, the usufructuary under­takes to restore the property to the owner at the termination of the usufruct.^[1570] Third, the usufructuary undertakes not to act fraudulently with regard to the property.^[1571] In addition, the cautio usufructuaria was supplemented by an obligation for the usufructuary to give security that he or she would manage the property in the manner of a bonus vir⁴ The level of security required was also measured by the standard of the bonus vir.^{[1572] [1573] If the usufructuary failed to give security when required, the owner could bring an action to recover the property.[1574] Equally, the usufructuary could not enforce the usufruct until security was given.[1575] Where the usufruct was created by will, the obligation to give security could not be dis­pensed with by the testator.[1576]}

What if the usufructuary did not give the cautio usufructuaria? Could he or she still be held liable for the maintenance of the property? There is some doubt about this.

The usufructuary then was under an obligation to maintain the property, with this duty measured according to the standard of the bonus vir, and the usufruc­tuary could be compelled to comply with the duty.^[1578] This duty extended to an obligation to keep up the numbers of a herd or flock of animals given in usufruct, from its young.^[1579] The duty of maintenance, however, only extended to ordinary repairs. Accordingly, if a house fell down due to old age, the usufructuary was not obliged to rebuild it.^[1580]

Where ordinary repairs were necessary, the usufructuary was obliged to carry them out. A distinction must be made between repairs and alterations.^[1581] A usufruc­tuary had to make necessary repairs, but the position of alterations was less clear. In one text, Ulpian tells us that the usufructuary could make improvements, as long as the fundamental character of the property was not changed.^[1582] Accordingly, the usufructuary could redecorate the property or add decorative elements such as statuettes. The usufructuary could not, however, divide rooms, demolish walls between rooms or change the layout of the gardens. This is clear enough, although of course in practice there is plenty of room for disagreement about whether a particular operation changes the character of the property. Unfortunately from the point of view of clarity, though, a different text (from Neratius) gives a much stricter opinion. According to Neratius, the usufructuary is not permitted to make any alterations at all, even to the extent of not being permitted to replaster walls left in a rough condition. ‘It is one thing', he says, ‘to maintain what has been received, and another to make an alteration.'^[1583] It seems that Scots law, which also imposes this duty of maintenance,^[1584] is closer to Ulpian's position on this, and indeed will sometimes oblige the owner to pay compensation for improvements.^[1585]

(5) The Position in Modern Law

This issue has been considered relatively recently in Scots law, with the court making reference to Roman law, so it is appropriate to spend some time con­sidering the position in modern law.

The Liferent Caution^[1587] Acts 1491 and 1535 imposed an obligation on the liferenter to give security that he or she would not waste or destroy the prop­erty, under penalty of deprivation of the fruits of the property. The question is whether this was intended to supplement or to replace the normal remedies. The institutional writer Erskine said that ‘where waste is already committed, no action is competent to him who stands presently in the fee [i.e. the owner] for recovering damages'.^[1588] The reasoning for this is that, when the damage occurs, the liferent may still have many years left to run. The owner only suffers any actual loss when the liferent comes to an end, and by that time someone else may be owner. Erskine's reasoning has been criticised.^[1589] In any case, Erskine only mentions the non-availability of damages. For this reason, it has been suggested that interdict and specific implement should still be available, not being subject to the same objection as a claim for damages.^[1590]

The issue was considered in Stronach’s Executors v Robertson.^[1591] In that case, the defender was the liferenter of a house. The pursuers were the owners (‘Ears’, in Scots legal terminology). The pursuers alleged that the defender had allowed the house to fall into disrepair, and sought an order from the court compelling him to make necessary repairs, which failing the payment of damages. The pursuer was unsuccessful. The Inner House of the Court of Session held that the proper rem­edy was for the liferenter to be ordered to lodge a sum of money in the court as security for the damage. Other remedies were unavailable before the termination of the liferent, except perhaps in relation to timber, in respect of which the owner has an immediate right. In effect, then, the court decided that the Liferent Caution Acts replaced the normal remedies rather than supplementing them. The case is of particular interest for the court's discussion of the Roman sources and their place in modern law. It has, however, been criticised for misunderstanding the historical sources and for rendering Scots law out of step with related legal systems.^[1592]

D.