Emphyteusis

ENFITEUSI. -

I. CONCEPT

Emphyteusis (from the Greek ἐκράτευσις = plantation) is a real right over immovable property (usually rural property), whereby one enjoys its full use, in perpetuity or for a certain period, with the obligation to improve it and to pay each year a sum of money or a payment in kind. The dispute among authors concerning the legal nature of this institution is still alive. Here it will suffice to recall that of the two obligations, the more important is the first: the obligation to pay a specified rent is secondary and sometimes has only symbolic value. This means that the institution of emphyteusis

is directed above all toward the clearing and improvement of uncultivated land. For this reason, the emphyteuta has very extensive powers (he may make any alterations he wishes, provided that he does not deteriorate the property), and the grant is made for a fairly long period and tends to be transformed into true and complete ownership.

In this sense, the institution of emphyteusis rendered very great services in antiquity and the Middle Ages: it was the concrete form by which the clearing of many lands was encouraged and individual ownership of extensive areas initiated. As time went on, the motive of improving the property increasingly gave way to the annual payment. The holder of the right became increasingly concerned with deriving specific advantages from his lands rather than with improving them. It is therefore understandable that the institution of emphyteusis lost importance, almost to the point of disappearing altogether.
II. – E. IN CANON LAW. – Since the contract of e. entails a genuine alienation on the part of the grantor, it is subject to the canonical laws concerning alienation; its special configuration must, however, be borne in mind. Thus, first of all, in granting ecclesiastical property in e., can. 1530 § 1, n. 1 concerning a prior expert valuation must be applied, as must can. 1532 § 2, n. 3 concerning the consent to be sought from the interested parties (beneficiary, patron), together with all the other conditions relating to alienation (v. BENI ECCLESIASTICI, II, col. 1344).

More particularly, under can. 1542 § 1: a) “in the e. of ecclesiastical property the emphyteuta may not redeem the rent without the permission of the legitimate ecclesiastical superior in accordance with can. 1532; and if he proceeds to enfranchisement, he must pay at least a sum of money corresponding to the rent.” The provision is logical, because with the enfranchisement of the rent, the alienation of the property granted in e. is complete. b) “An adequate security must be required from the emphyteuta for payment of the rent and observance of the conditions imposed; in the contractual establishment of the emphyteutic agreement, the ecclesiastical forum must be chosen for the settlement of any disputes, and it must be expressly declared that improvements belong to the estate” (loc. cit. § 2).

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

A case of conflict arose in Italy after the entry into force of the new Civil Code (1942), which granted the emphyteuta the right to enfranchise the estate twenty years after the establishment of the e. (arts. 971–73).

Not a few emphyteutas of ecclesiastical property availed themselves of this right, and, faced with the resistance of the ecclesiastical administrators, resorted to judicial or compulsory enfranchisement, bringing before the civil magistrate the ecclesiastics holding benefices or otherwise representing ecclesiastical bodies, and even the diocesan Ordinaries, while the emphyteutas themselves offered an enfranchisement capital which, especially in view of the value of the currency then in circulation, amounted to a real and serious loss to the patrimony of benefices and ecclesiastical bodies (cf. Il diritto ecclesiastico, 57 [1946], pp. 253–54; judgment of the tribunal of Patti, 12 Oct. 1945).

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

The guiding principle contained in them is to avoid enfranchisement of e. involving ecclesiastical property, because it is generally harmful to the ecclesiastical patrimony, by reminding the faithful of their duties of conscience and of the obligation, in matters concerning contracts for ecclesiastical property, to observe, as has been said, first and foremost the norms of canon law. Against those, moreover, who resort to compulsory enfranchisement, the provisions of can. 2341 are invoked: this canon imposes excommunication specialis modo reserved to the Holy See on anyone who brings his own Ordinary before a civil judge, and makes ecclesiastical penalties possible for anyone who brings another cleric before the courts in derogation of the privilegium fori (can. 220).

It is further recalled that all such persons, by contravening the precise provision of can. 1542 § 1, must also be regarded as unjust possessors of ecclesiastical property and therefore, under can. 2340, cannot be absolved from the excommunication and other penalties thereby incurred until they have compensated the damage caused to benefices and ecclesiastical bodies.

The emphyteuta has, with respect to the fruits of the land, treasure, exploitation of the subsoil, and 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 rent “in a sum of money or in a fixed quantity of natural produce” (art. 960). In addition, “the taxes and other charges imposed on the land shall be borne by him, without prejudice to the provisions of special laws” (art. 964).

“The emphyteuta may redeem the land after twenty years from the creation of the emphyteusis. The constitutive instrument may establish a period longer than twenty years, not exceeding forty. Even where no period is specified in the constitutive instrument, if a plan for improvement has been established therein, the emphyteuta may not proceed with redemption before the improvements have been completed” (art. 971).

Conversely, if the emphyteuta fails to fulfil his obligations—that is, if he does not improve the land (or, worse, deteriorates it) and is in arrears with the payment of two annual instalments of rent—the grantor may seek the reversion of the emphyteutic land (art. 972).

The emphyteuta may dispose of his right without paying the grantor any compensation (laudemium), “whether by an inter vivos act or by an act of last will” (art. 965); however, in the event of a sale, “the grantor shall have preference on equal terms” (art. 966).

With respect to the emphyteutic rent, no “remission or reduction ... may be claimed on account of any unusual sterility of the land or loss of produce” (art. 960). The rent may be revised only after ten years from the grant (and subsequently after equal periods of time), and only if the value of the land has at least doubled or been halved in comparison with its initial value or with that established in the preceding revision (art. 962).

IV. PUNTO DI VISTA MORALE

Da quest'ultimo punto di vista l'e. rientra perfettamente nella destinazione dei beni e nei motivi generatori della proprietà privata. Questa infatti trova la sua ragione più forte nella necessità di dare uno stimolo economico al lavoro per trasformare le cose e metterle così in grado di servire efficacemente all'umanità.

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.).

nel nuovo Codice civile, ibid., pp. 505-506; G. Oliverio, In tema di affrancazioni di oneri di culto, in Il diritto ecclesiastico, 53 (1942), pp. 210-17; G. Lucchi, L'e. nel nuovo Codice civile, in Palestra del clero, 21 (1942), pp. 136-40; G. Ceconi, L'e. nel nuovo Codice civile, in Riv. di diritto agrario, 22 (1943), pp. 26-46.

V. SOCIOLOGIA

Although the dynamism characteristic of 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 aimed at ensuring that landed property enjoy ever greater freedom from every real and permanent restriction or encumbrance, it must be held that the e. may 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 fail to view this institution with particular favor. Indeed, this doctrine is oriented toward promoting by every means the spread of small-scale direct-farming ownership, both for obvious reasons of social pacification and because ownership of one’s home, land, and tools of one’s work assures the worker that economic autonomy which is the basis of political freedom and which facilitates both the safeguarding of the dignity of the human person and the exercise of his moral and intellectual capacities. The supreme pontiffs, from Leone XIII to Pio XI and Pio XII, have not failed to recommend in their encyclicals to all those working in the social field the practical implementation of these principles, together with all those practical measures suggested by the different possibilities and needs of the various agricultural regions. Now, the e. precisely offers the possibility of directing the Italian rural masses toward small-scale direct-farming ownership, without depriving owners of the fair compensation due to them and without burdening the State’s finances with new charges, while making possible, through fulfillment of the obligation to carry out improvements, many reclamation works belonging to private initiative.

The very long duration of the relationship, and in any event its duration of not less than twenty years, assures the enfiteuta adequate stability of employment, attaching him to the land better than any other relationship of a personal and temporary nature, and encouraging him to invest capital in improvement works.

Very broad autonomy, not only in the management of the farm but also in the disposition of the emphyteutic right, which may be alienated and transmitted by hereditary succession, confers upon the worker all the advantages proper to a small proprietor.

Both parties are protected against the disturbances, now so frequent in the agricultural economy, by the decennial revision of the rent in relation to variations in the value of the land, naturally excluding improvements or deterioration attributable to the enfiteuta himself.

On the other hand, the owner’s rights and the higher interests of national production are effectively protected by the right of reversion of the emphyteutic land to the grantor in the event of two years’ arrears, deterioration, or breach of the obligation to carry out the agreed improvements. In this way, the danger of transferring the lands to less capable tenant farmers is avoided, and the cultivator is educated in the love of work and sacrifice, without which no socioeconomic advancement is possible.

In any event, the peasant’s aspiration to full ownership of the land on which he lives and works may also be realized in favor of the less well-off and through gradual savings, upon the expiry of twenty years from the creation of the emphyteutic right, by redeeming the land, upon payment to the gran-

to the owner of a sum equal to the capitalization
of the annual rent.

Bonfante therefore rightly recognized in emphyteusis
“an instrument” and a corrective to the latifundium
“for the more economical application of intensive cultivation.”