B. Personal Servitudes

a. Usufructus

CASE 149

D 7.1.68 pr.-2 (Ulpianus libro septimo decimo ad Sabinum)

(pr.) Vetus fuit quaestio an partus ad fructuarium pertineret: sed Bruti sententia opti- nuit fructuarium in eo locum non habere: neque enim in fructu hominis homo esse potest.

(1)   Fetus tamen pecorum Sabinus et Cassius opinati sunt ad fructuarium pertinere.

(2)     Plane si gregis vel armenti sit ususfructus legatus, debebit ex adgnatis gregem supplere, id est in locum capitum defunctorum

D 7.1.69 (Pomponius libro quinto ad Sabinum)

vel inutilium alia summittere...

Translation: (Ulpian in the 17th book of his Commentary on the Ius Civile of Sabinus)^[338]

(pr.) It was an old controversy whether offspring [of a slave] belonged to a usu­fructuary. But the opinion of Brutus prevailed, that the usufructuary has no place in it: nor can a human be among the fruits of a human. By this reason­ing a usufructuary will [also] have no usufruct in it [i.e., the offspring]. But what if a usufruct in offspring is bequeathed, should he [i.e., the recipient of the bequest] have a usufruct in it? Since offspring can be bequeathed, a usufruct in it can also be.

(1)     The offspring of animals, however, belong to the usufructuary, according to the opinion of Sabinus and Cassius.

(2)     Clearly if the usufruct of a herd or ox is bequeathed, he [i.e., the legatee] will be obliged to make up the herd from the other offspring: i.e., in place of those that have died,

(Pomponius in the fifth book ad Sabinum)^[339]

or to provide others in place of useless animals.

Discussion Questions:

1)      How might the opponents of Brutus (according to Cicero de Finibus 1.4.12 these were P.

2)      Do you think Ulpian endorses the proposition he brings forward: that the fruit can belong to a category different from that of the bearer? Or will the offspring of a slave not be treated as fruit because only the typical produce of the main property falls within the concept of fruit? Or is it the nature of humans that resists treating them as fruit?

3)   What economic considerations might underlie this controversy?

4)    What content can the usufruct of a slave's offspring involve?

5)      The usufructuary of a herd must substitute for individual animals that have died, but not for the accidental destruction of the entire herd (say through epidemic). How can this difference be explained?

6)      Titius has the usufruct of the cow of Maevius. The cow dies. Must he replace it? Explain.

7)      Is the usufructuary of a vegetable garden obliged to replace fruit trees with new plantings?

Compare with this Text:

D 7.1.1 (Paulus libro tertio ad Vitellium)

Usus fructus est ius alienis rebus utendi fruendi salva rerum substantia.

Translation: (Paul in the third book of his Commentary on Vitellius)^[340]

The usus fructus is the right to use another's property and to take the fruits of it, while keeping the substance intact.

§ 509 Austrian Civil Code:

The usufruct is the right to enjoy another's property without limitation, but with care of the substance.^[341]

§ 1030 I German Civil Code:

A piece of property can be burdened in such a way that the person to whose benefit the burden runs is entitled to products of it (usufruct).^[342]

Literature:

Kaser M.

Hammerstein,J. Die Herde im römischen Recht. Grex als rechtliche Sachgesamtheit und Wirtschaftseinheit. Göttingen, 1975, 66 ff., 101 ff.

Birks Peter. “An Unacceptable Face of Human Property,” in New Perspectives in the Roman Law of Property. Essays for Barry Nicholas, Peter Birks ed. Oxford: Clarendon Press, 1989, 61 ff.

Filip-Fröschel (Case 104) 99 ff.

Herrmann-Otto, Elisabeth. Ex ancilla natus: Untersuchungen zu den “hausgeborenen” Sklaven und Sklavinnen im Westen des römischen Kaiserreiches. Stuttgart: F. Steiner, 1994, 268 ff.

Daubermann, Erich A. Die Sachgesamtheit als Gegenstand des klassischen römischen Rechts: vornehmlich unter dem Blickwinkel von Veränderungen in ihrer Zusammensetzung. New York: P. Lang, 1993, 55 ff., 62 ff.

Watson, A. “The Acquisition of Young in the usufructus gregis.” Iura 12 (1961) 210-221, reprinted in Studies in Roman Private Law. Rio Grande, OH: Hambledon Press, 1991, 131 ff.

Rodger, A. “A Very Good Reason for Buying a Slave Woman” LQR 123 (2007) 446-454.

D 7.1.12.2 (Ulpianus libro septimo decimo ad Sabinum)

Usufructuarius vel ipse frui ea re vel alii fruendam concedere vel locare vel vendere potest: nam et qui locat utitur, et qui vendit utitur. sed et si alii precario concedat vel donet, puto eum uti atque ideo retinere usum fructum, et hoc Cassius et Pegasus respond­erunt et Pomponius libro quinto ex Sabino probat...

Translation: (Ulpian in the 17th book of his Commentary on the Ius Civile of Sabinus)^[343]

The usufructuary can either enjoy the usufruct himself or allow another to enjoy it, or let it or sell it; for even he who lets it is using it, and he who sells it is using it.

Discussion Questions:

1)      What is the effect of the death of the usufructuary on the legal position of the purchaser or lessee?

2)  Is the usus fructus extinguished through non-use?

3)      Might it be argued that only a usufructuary’s grant of use to another for monetary compensation should be considered, not a grant without com­pensation?

D 7.1.15.4 (Ulpianus libro octavo decimo ad Sabinum)

Et si vestimentorum usus fructus legatus sit non sic, ut quantitatis usus fructus legetur, dicendum est ita uti eum debere, ne abutatur: nec tamen locaturum, quia vir bonus ita non uteretur.

Translation: (Ulpian in the 18th book of his Commentary on the Ius Civile of Sabinus)^[344]

If the use of clothing has not been bequeathed in such a way that the legacy speci­fies usufruct of a quantity, then it must be said that the usufructuary must use it so as not to use it up: nevertheless, he cannot rent it out, because a vir bonus would not use it in that way.

Note on the Text:

On the meaning of vir bonus, see on Case 107.

Discussion Questions:

1)      Explain the difference between the two bequests referenced here and their different legal consequences.

2)   May a usufructuary make alterations to a house of which he owns the usufruct?

3)   May a usufructuary of land open it up to mining?

4)      May a slave that is the object of a usufruct be employed in work for which the owner did not use him?

b. Usus

CASE 152

D 7.8.2.1 (Ulpianus libro septimo decimo ad Sabinum)

Domus usus relictus est aut marito aut mulieri: si marito, potest illic habitare non solus, verum cum familia quoque sua.

D 7.8.4.1 (Ulpianus libro septimo decimo ad Sabinum)

Mulieri autem si usus relictus sit, posse eam et cum marito habitare Quintus Mucius pri­mus admisit, ne ei matrimonio carendum foret, cum uti vult domo. nam per contrarium quin uxor cum marito possit habitare, nec fuit dubitatum. quid ergo si viduae legatus sit, an nuptiis contractis post constitutum usum mulier habitare cum marito possit? et est verum, ut et Pomponius libro quinto et Papinianus libro nono decimo quaestionum probat, posse eam cum viro et postea nubentem habitare...

Translation: (Ulpian in the 17th book of his Commentary on the Ius Civile of Sabinus)^[345]

The use of a house has been left to either a husband or a wife. In the case of a husband, he can live there not only by himself but also with his slaves. There was a question whether he could do so also with his freedmen. And Celsus wrote, also with the freed­men and he could also receive a guest. For he wrote this in the 18th book of his Digesta, and the opinion met with the approval of Tubero. But whether he can even take in a tenant is a question I remember is treated by Labeo in a book of his posthumous writ­ings. And Labeo says that the man who lives there can also take a tenant....

(Ulpian ibidem)

If a wife is left the use, Quintus Mucius was the first to allow that she could live there also with her husband, so that she did not have to give up her marriage if she wished to use the house.

Discussion Questions:

1)      How might the jurists prior to Q. Mucius have explained their decision against wives?

2)      Why should the taking of a tenant be permissible only if the user himself dwells in the house?

Compare with this Text:

§ 505 Austrian Civil Code:

He who has the right to use property may make use of it, without regard to his other property, in a manner appropriate to his position, his occupation, and his household.^[346]

§ 506 Austrian Civil Code:

The need is determined at the time of the grant of use. Subsequent changes in the position or occupation of the user gives no grounds for a claim of entitlement to more extended use.^[347]

§ 1090 I German Civil Code:

A piece of land can be burdened in such a way that the person to whose benefit the burden runs is entitled to use the land in various ways, or that he has a special license which can constitute the subject of a servitude in land (limited personal servitude).^[348]

Literature:

Wieling, Hans Josef. Testamentsauslegung im römischen Recht. München: Beck, 1972, 18 ff.

D 7.8.12.1-2 (Ulpianus libro septimo decimo ad Sabinum)

(1)     Praeter habitationem quam habet, cui usus datus est, deambulandi quoque et gestandi ius habebit. Sabinus et Cassius et lignis ad usum cottidianum et horto et pomis et holeribus et floribus et aqua usurum, non usque ad compendium, sed ad usum, scilicet non usque ad abusum: idem Nerva, et adicit stramentis et sarmentis etiam usurum, sed neque foliis neque oleo neque frumento neque frugibus usurum. sed Sabinus et Cassius et Labeo et Proculus hoc amplius etiam ex his quae in fundo nascuntur, quod ad victum sibi suisque sufficiat sumpturum et ex his quae Nerva negavit...

(2)     Sed si pecoris ei usus relictus est, puta gregis ovilis, ad stercorandum usurum dumtaxat Labeo ait, sed neque lana neque agnis neque lacte usurum: haec enim magis in fructu esse. hoc amplius etiam modico lacte usurum puto. neque enim tam stricte inter­pretandae sunt voluntates defunctorum.

Translation: (Ulpian in the 17th book of his Commentary on the Ius Civile of Sabinus)^[349]

(1)     The usuary will, in addition to habitation, have the right of walking around and riding on the property. Sabinus and Cassius think he may also use fire­wood for his daily needs and the garden and fruit and vegetables and flow­ers and water, not for the purpose of making a profit, but for his (own) use, but not to the point of using it up. Nerva says the same, and he adds that the usuary may also use the straw and brushwood, but not leaves, oil, grain, or crops. But Sabinus and Cassius, like Labeo and Proculus, more than this, allow him to take from whatever grows on the land, as much as is sufficient for himself and his dependents to support life, and also from the crops that Nerva excludes....

(2)     If the use of a herd has been left to him, say of a flock of sheep, Labeo says he may use it only for manure, and not take either wool or lambs or milk for him­self. For these are much more a matter of fruits. I, more than this, think he may take a modest amount of milk. For the intentions of the deceased ought not to be interpreted so narrowly.

Discussion Questions:

1)      Do you think Ulpian allows the usuary to take fruit for the entertainment of guests?

2)      Must the usuary consume the fruit on the farm, or may he take it with him into the town?

3)   Explain the distinction that Nerva draws.

4)      The statement “But Sabinus and Cassius, like Labeo and Proculus,... ” is often considered a Justinianic interpolation. What arguments can be got from the text in support of this opinion?

5)      What does Ulpian's opinion in § 2 have to do with the intentions of the deceased?

D 7.8.22 pr. (Pomponius libro quinto ad Quintum Mucium)

Divus Hadrianus, cum quibusdam usus silvae legatus esset, statuit fructum quoque eis legatum videri, quia nisi liceret legatariis caedere silvam et vendere, quemadmodum usu­fructuariis licet, nihil habituri essent ex eo legato.

Translation: (Pomponius in the fifth book of his Commentary on the Ius Civile of Quintus Mucius)^[350]

The deified Hadrian decided, in a case in which the use of a forest had been bequeathed, that use of the fruits had also been effectively left to the legatees, because if the legatees were not permitted to cut and sell the wood in the same manner as usufructuaries, they would have nothing from this legacy.

Notes on the Text:

On videri (“effectively”) see Case 72. On the argumentum ad absurdum, see Case 34.

Discussion Question:

Discuss Hadrian's decision in connection with Ulp. D 7.8.12.1 & 2 (Case 153).