Emphyteusis

EMPHYTEUSIS. - I. CONCEPT. - Emphyteusis (from the Greek ἐκράτευσις = planting) is a real right over an immovable property (usually rural) by which one has, in perpetuity or for a certain time, the full enjoyment of it, with the obligation to improve it and to pay each year a prestation in money, or in produce in kind. On the juridical character of this institution the dispute among authors is still lively. Here it will suffice to recall that of the two obligations the more important is the first: the obligation to pay a determined canon is secondary and sometimes has only a symbolic value. This means that the institution of emphyteusis aims first of all at the breaking up and improvement of uncultivated lands. For this reason the emphyteuta has very broad powers (he may make all the modifications he wishes provided he does not deteriorate the estate) and the concession is made for a rather considerable time and tends to be transformed into true and complete ownership.

In this sense the institution of emphyteusis rendered very great services in antiquity and in the Middle Ages: it was the concrete form by which the breaking up of many lands was stimulated and individual ownership of extensive zones was set in motion. As time went on, the motive of improving the estate yielded ever more ground to the annual prestation. The owner (dirittorio) became ever more concerned with deriving determined advantages from his estates, rather than with improving them. One understands therefore that the institution of emphyteusis lost importance to the point of almost disappearing entirely.
II. - L'E. NEL DIRITTO CANONICO. - Since the contract of e. entails a true and proper alienation on the part of the grantor, it is subject to the canon laws concerning alienation; its special configuration must, however, be kept in mind. Thus, first of all, in order to grant ecclesiastical property in e., one must apply can. 1530 § 1, n. 1 concerning the prior appraisal, can. 1532 § 2, n. 3 concerning the consent to be sought from the interested parties (beneficiary, patron) and all the other conditions that concern alienation (v. BENI ECCLESIASTICI, II, col. 1344).

In particular, then, according to can. 1542 § 1: a) "in the e. of ecclesiastical property the emphyteuta cannot redeem the canon without the license of the legitimate ecclesiastical superior in accordance with can. 1532; and if he proceeds to the affranchisement, he must give at least such a sum of money as corresponds to the canon." The provision is logical, because with the affranchisement of the canon, the alienation of the property given in e. is complete. b) "A suitable security must be required from the emphyteuta for the payment of the canon and for the observance of the conditions imposed; in the contractual institution of the emphyteutic pact the ecclesiastical forum must be chosen to settle any disputes and it must be expressly declared that the improvements belong to the land" (loc. cit. § 2).

If the formalities of the CIC, to which religious are also bound, are in conflict with the formalities of civil law, the former are evidently to be observed on the basis of can. 1529.

The case of conflict occurred in Italy after the entry into force of the new Civil Code (1942), which gave the emphyteuta the right to affranchise the land twenty years after the constitution of the e. (arts. 971-73).

Not a few emphyteutae of ecclesiastical property availed themselves of this right, and in the face of the resistance of the ecclesiastical directors they resorted to the system of judicial or compulsory affranchisement, summoning before the civil magistrate the ecclesiastics holding benefices or otherwise representing ecclesiastical bodies and even the diocesan Ordinaries, while the same emphyteutae offered a capital of affranchisement which, especially at the current value of money, resolved into a true and grave damage to the patrimony of the benefices and ecclesiastical bodies (cf. Il diritto ecclesiastico, 57 [1946], pp. 253-54; judgment of the tribunal of Patti, 12 Oct. 1945).

The Sacred Congregation of the Council, which already in the instruction of 20 June 1929, for the administration of benefice and ecclesiastical property in Italy (art. 41, in AAS, 21 [1929], p. 394), had insisted on the observance of the canonical norms concerning e., returned to insist on it after the publication of the new Civil Code with repeated instructions of 18 May 1945 and 1 May 1945.

The guiding line contained in them is to avoid the affranchisement of e. on ecclesiastical property, because it is generally harmful to the ecclesiastical patrimony, recalling the faithful to their duties of conscience, and to the obligation in matters of contracts concerning ecclesiastical property to observe, as has been said, first of all the norms of canon law. Against those who moreover resort to compulsory affranchisement, the provisions of can. 2341 are recalled, which imposes the excommunication specialis modo reserved to the Holy See against anyone who summons his own Ordinary before the civil judge, and makes possible ecclesiastical penalties for anyone who summons other clerics in derogation of the privilegium fori (can. 220).

Furthermore, it is recalled that all these persons, contravening the precise provision of can. 1542 § 1, must also be considered as unjust detainers of ecclesiastical property and, therefore, in accordance with can. 2340, cannot be absolved from the excommunication and the other penalties thus incurred, except after they have made good the damages caused to the benefices and ecclesiastical bodies.

III. THE EMPHYTEUSIS IN ITALIAN LAW

The Italian Code has preserved the institution of emphyteusis (I. III, tit. IV). The grant may be perpetual or temporary, provided it lasts a minimum of twenty years (art. 958).

The emphyteuta has over the fruits of the land, over treasure, over the uses of the subsoil and over accessions the same rights as the owner would have (art. 959). He is obliged to "improve the land" and to pay the grantor a periodic canon "in a sum of money or in a fixed quantity of natural products" (art. 960). Moreover, "the taxes and other burdens weighing on the land, save the provisions of special laws" are charged to him (art. 964).

"The emphyteuta may redeem the land after twenty years from the constitution of the emphyteusis. In the constitutive act a term longer than twenty years may be established, not exceeding forty. Even when no term is indicated in the constitutive act, if a plan of improvement is laid down therein, the emphyteuta may not proceed to redemption before the improvements have been carried out" (art. 971).

Conversely, if the emphyteuta fails in his obligations, that is, if he does not improve the land (or worse, deteriorates it) and if he is in default in the payment of two annual instalments of the canon, the grantor may demand the devolution of the emphyteutic land (art. 972).

The emphyteuta may dispose of his own right without paying any compensation (laudemio) to the grantor, "whether by act between the living or by act of last will" (art. 965); however, in the case of sale "the grantor is preferred, conditions being equal" (art. 966).

From the emphyteutic canon one cannot "claim remission or reduction... on account of any unusual sterility of the land or loss of fruits" (art. 960). A revision of the canon may take place only after ten years from the grant (and subsequently after an equal period of time) and if the value of the land has at least doubled or halved with respect to the initial value or to that ascertained in the previous revision (art. 962).

IV. MORAL POINT OF VIEW

From this last point of view, emphyteusis fits perfectly within the destination of goods and the generating motives of private property. This indeed finds its strongest justification in the necessity of providing an economic stimulus to labor, so as to transform things and thereby put them in a position to serve humanity effectively.

Per tale motivo l'istituto dell'e., eventualmente ritoccato e adattato alle nuove situazioni createsi, può trovar ancora oggi utili applicazioni e render grandi servizi all'umanità (concessioni di zone in territori primitivi o apopolati, ecc.).

V. SOCIOLOGY

Although the dynamism proper to modern economic life, which cannot fail to make its effects felt upon the positive legal order, has caused this form of land tenure to fall into disuse, also in deference to the tendency directed at securing for landed property an ever greater freedom from every tie or burden of a real and permanent character, it is to be held that emphyteusis can still perform an important function within the framework of agrarian reform and of the directives contained in art. 44 of the new Italian Constitution.

Christian social doctrine itself cannot but regard this institution with particular favor. Indeed, this doctrine is oriented toward favoring by every means the diffusion of small directly cultivated property, both for obvious reasons of social pacification and because the ownership of the house, the land and the instruments of one's own work assures the worker that economic autonomy which is the basis of political freedom and which facilitates the very protection of the dignity of the human person and the expression of his moral and intellectual capacities. The supreme pontiffs, from Leo XIII to Pius XI and Pius XII, have not failed to recommend in their encyclicals, to all those who work in the social field, the practical realization of these principles, with all those practical expedients that are suggested by the different possibilities and needs of the various agricultural zones. Now, precisely emphyteusis offers the possibility of directing the Italian rural masses toward small cultivated property, without depriving the owners of the just indemnity that is their due and without burdening the finances of the State with new charges, making possible, through the fulfillment of the obligation of improvements, many reclamation works belonging to private initiative.

The very long duration of the relationship, and in any case not less than twenty years, assures the emphyteuta an adequate stability of work, attaching him to the land better than any other relationship of a personal and temporary nature, and inducing him to invest capital in improvement works.

A very broad autonomy, not only in the management of the holding but also in the disposal of the emphyteutic right, which may be alienated and transmitted by hereditary succession, confers upon the worker all those advantages that are proper to the small owner.

Both parties are protected from the disturbances, today so frequent in the agricultural economy, by means of the ten-yearly revisability of the canon, in relation to variations in the value of the land, naturally excluding the improvements or deteriorations attributable to the emphyteuta himself.

On the other hand, the rights of the owner and the superior interests of national production are effectively protected by the right of devolution of the emphyteutic land in favor of the grantor, in case of two years' arrears or of deterioration or of contravention of the obligation of the agreed improvements. In this way the danger of ceding the lands to the less capable colonists is avoided, and the cultivator is educated in the love of work and of sacrifice, without which no economic-social elevation is possible.

In any case the peasant's aspiration to the full ownership of the land on which he lives and works can be realized also in favor of the less well-off and through gradual savings, upon the expiration of twenty years from the constitution of the emphyteutic right, by means of the affranchisement of the land, upon payment to the pro-owner of a sum equal to the capitalization
of the annual rent.

Rightly, therefore, Bonfante saw in emphyteusis
"an instrument" and a corrective to the latifundium for
the more economical application of intensive cultivation.

Bruno Rossi