Introduction
Servitutes or servitudes are limited rights to the use of another's property. The holder of a servitude can legally exercise a limited degree of control over the property— i.e., even against the wishes of the owner and any third party.
The late classical jurist Marcian distinguishes in D 8.1.1 “personal servitudes” (like usus [“use”] and usufructus [“usufruct”]) from “real servitudes.” The latter are also called “praedial servitudes” (iura praediorum) and are divided into “rustic” and “urban” servitudes: i.e., servitudes affecting land and buildings, respectively.
The purpose of a praedial servitude is to facilitate or make possible an owner's use of his land by means of a right of entry onto a neighboring piece of land.
The oldest and, in terms of agricultural economy, most necessary praedial servitudes are footpaths and roadways (iter, via), the right to drive cattle across (actus), and the right to draw water across (aquae ductus). The owner of the burdened property is essentially obligated to put up with (pati) or to refrain from stopping (non facere) the activity, but he does not have any obligation to do something (facere): servitus in faciendo consistere nequit [“there can be no servitude requiring someone to do something”]. An exception is the servitus oneris ferendi [“servitude of bearing the load”], a servitude that obliges the owner of the servient property to keep up a wall that may be used by the dominant property.While the exercise of praedial servitudes is always oriented to the needs of a certain piece of land, personal servitudes serve the interests of defined persons by conferring rights of use and benefit, not only in land but also in other kinds of property.
“Usufruct” (usufructus) is a right to the use or the fruits of another's property on condition of protecting the substance of the property.
The right is highly personal—i.e., it is extinguished on the death of the person who has it, but its exercise can be alienated or leased out. The usufructuary must exercise his right according to the standard of a vir bonus [“an honest and upright man”], a standard that is widely documented in the casuistic sources [i.e., discussions of individual cases].“Use” (usus) is in the first place a general right of use that carries no benefit of the fruits. Yet certain difficulties are presented in defining the use of fruit-bearing properties (e.g., a house with a garden, a forest, a flock of sheep).
The jurists ultimately developed a concept of usus in which the taking of certain fruits for one's own use was included.
Literature:
A. Praedial servitudes
Watson, A. The Law of Property in the Later Roman Republic. Oxford: Clarendon Press, 1968, 176 ff.
Rainer, J. M. “Zum Typenzwang der Servituten: Vom römischen Recht zum BGB,” in Collatio ivris Romani: etudes dediees d Hans Ankum d l’occasion de son 65e anniversaire, H. Ankum and R. Feenstra, eds. Amsterdam: Gieben, 1995, 415 ff.
size=1 color=black face="Book Antiqua">B. Personal Servitudes
Watson, A. The Law of Property in the Later Roman Republic. Oxford: Clarendon Press, 1968, 203 ff.
Watson, A. “The Acquisition of Young in the usufructus gregis.” Iura 12 (1961) 210-221.
Hammerstein, Jürgen. Die Herde im römischen Recht: Grex als rechtliche Sachgesamtheit und Wirtschaftseinheit. Göttingen: Musterschmidt, 1975, 65 ff.
Kaser M. “Partus ancillae,” ZRG 75 (1958) 156-200, at 156 ff.
Thomas J. A. C. “Locare usumfructum,” IJ 6 (1971) 367-371, at 367 ff.
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