Protection of Usufruct

A person who claimed to be the holder of a usufruct could assert this using the actio confessoria which we saw in Chapter 13 for the protection of praedial servitudes.^[1593] As this was a real action rather than a personal one,^[1594] it could be successfully brought against a third party, such as a person acquiring ownership of the land.

In addition to these remedies, which asserted the existence or otherwise of rights in the property, we have seen also that there existed possessory interdicts to regulate interim possession of the property until the question of right could be determined.^[1596] In simple terms, a person in possession of property was entitled to remain in possession until the question of entitlement was determined and, if dispossessed, was entitled to be restored to possession in the meantime. In pos­sessory proceedings, it was not permissible to assert ownership or any other kind of right to the property, as these proceedings were concerned only with regu­lating interim possession. Instead, a claim to a possessory interdict could only be defeated by demonstrating that the possession had been acquired by force, stealth or licence from the other party. The issue of a possessory interdict did not, however, prejudge the question of who was ultimately entitled to the property. Accordingly, the loser in the possessory proceedings was quite able then to raise an action based on a claim of ownership or some other right in the property.

In modern Scots law, there is no doubt that a liferenter (the Scots equivalent of a usufructuary) possesses the property, and so in Scots law a person claiming to have a liferent has access to the normal possessory remedies. However, the Roman jurists seem to have felt some discomfort about calling a usufructuary a

possessor. This is presumably because, as we have seen, the owner of the prop­erty continued to have possession while the usufruct lasted, and it was seen as problematic to give the name of possessor to both the owner and the usufructu­ary. We are told in numerous texts that usufructuary does not have possession of the property.^[1597] Elsewhere, the term ‘quasi-possession’ or something similar is often used,^[1598] to indicate that the usufructuary is ‘almost a possessor’ or ‘a sort of possessor’. All the same, we are told that the usufructuary had access to the normal possessory interdicts.^[1599] It is only from a passage preserved in a collection of classical texts known as the Vatican Fragments^[1600] that we know that, in the case of a person claiming to hold the property as usufructuary, the interdicts were given in utilis form^[1601] rather than in standard form.^[1602]

E.