USUFRUTTO. – It is the right to enjoy a thing belonging to another and its fruits, with the obligation to bear the expenses and undertake the care required for its preservation and maintenance. The definition substantially corresponds to the Roman one: ius alienis rebus utendi fruendi, salva rerum substantia (I, 1, D, 7, 1). As a legal institution, usufruct cannot be traced back further than the second century B.C.; it arose for purposes of maintenance, principally to provide for the widow. From Roman law, the institution passed into the legal systems dependent upon it without too many modifications; this also occurred in Italian law.
The content of the right of usufruct consists in the power to enjoy the thing; this, while entailing the right to receive its natural and civil fruits, prevents its alienation, the pledging of ownership thereof, etc. emphyteusis (v.); whereas the emphyteuta uses the thing as his own, the usufructuary uses it as belonging to another. The right of usufruct, however, may be transferred either for a certain period or for its entire duration, provided that this is not prohibited by the constitutive title (Italian Civil Code, art. 980).
I. OBJECT AND SOURCES OF U
In both Roman law and Italian civil law, the object of u. in itself consists of a non-fungible thing: only such things, in fact, can be used salva substantia. However, things whose use necessarily entails destruction (and are therefore called consumable) may also be included in u.; in this case, though, the person who enjoys the u. (the usufructuary) “has the right to use them and is obliged to pay their value at the end of the u. according to the agreed valuation. If no valuation has been made, the usufructuary may either pay for the things according to the value they have at the time when the u. ends or return others of equal quality and quantity” (Italian Civil Code, art. 999). This type of u., likewise derived from Roman law, is called quasi u. (cf. D. 7, 5, 2, 1).Under Italian civil law, the object of u. may also consist of things subject to deterioration, e.g., an automobile; in this case, however, the usufructuary has the right to use it according to the purpose for which it is intended and, at the end of the u., is obliged only to return it in the condition in which it is found (art. 990). The sources of u. are: 1) the will of man; 2) the law (consider, for example, the so-called legal u. of the father over the property of his minor child or of the husband over his wife’s dowry); 3) usucaption (Italian Civil Code, art. 978). The duration of u. may not exceed the lifetime of the usufructuary (art. 979). U. established in favour of a legal person may not last more than thirty years (ibid.).
II. RIGHTS AND DUTIES OF THE USUFRUCTUARY
In Roman law, the usufructuary acquired natural fruits by perceptio, whereas civil fruits were acquired day by day. The trees in a coppice became the property of the usufructuary when felled with due precautions. Dead trees and the heads of a flock likewise became his property; in the latter case, however, he had to replace the animals that died. He could exploit mines already in operation and, at least under Justinian law, even open new ones, where this could be done without causing harm.Under Italian civil law, the usufructuary’s principal rights are the following: 1) to obtain possession of the thing; 2) to derive from it every benefit and all fruits (v.), both natural and civil, within certain limits (art. 981; cf. the reservation in art. 988). Natural fruits are gathered by the usufructuary even while still attached, from the beginning of the usufruct, without any obligation to reimburse the expenses of sowing and cultivation; civil fruits accrue day by day (art. 984); 3) to enjoy buildings and plantations made by the owner after the beginning of the usufruct, subject to the obligation of paying interest on the sums expended (art. 983); 4) to make improvements and additions that do not alter the thing’s economic purpose, while retaining, at the time of restitution, the right to compensation for the improvements (art. 985); 5) to exploit quarries or peat bogs already opened and in operation at the beginning of the usufruct (art. 987). To open new ones, however, he requires the owner’s consent (ibid.); 6) to carry out the ordinary felling of woods and of tall trees scattered throughout the countryside, « maintaining the original extent of the woods and rows of trees and, where necessary, providing for their restoration » (art. 989); always subject to the owner’s right in respect of those uprooted, broken, or destroyed by accident; 7) to appropriate fruit trees uprooted, broken, or destroyed by accident, subject to the obligation of replacing them with others (art. 991); 8) to transfer to third parties, in whole or in part, for a specified period or for the entire duration, the exercise of the right of usufruct or even the right itself, while remaining liable together with the transferee to the owner until the transfer has been notified to the latter (art. 980). The provisions of arts. 995–96 apply to the usufruct of consumable and perishable things, whereas, in the usufruct of installations, factories, and machinery intended for productive use, the usufructuary is granted the right to equitable compensation for expenses exceeding ordinary repairs (art. 997). Finally, as regards living stock (e.g., working animals) and dead stock (e.g., ploughs, machines, and seed), the Italian Civil Code has resolved the controversy concerning their restitution by providing that the living and dead stock of an estate must be returned in equal quantity and quality. Any surplus or deficiency must be settled in money, according to its value, at the end of the usufruct (art. 998). As regards the usufructuary’s duties, it should be observed that Roman law required him to use and enjoy the thing tamquam bonus pater familias, preserving it in good condition and bearing all expenses necessary for its maintenance. As a guarantee of these obligations, the usufructuary was required to promise se usurum boni viri arbitratus et restituturum. Hence the obligation to provide security, with its exceptions in the legal usufruct, etc. Likewise, under Italian civil law, the usufructuary is required to exercise, in enjoying the thing, the diligence of a good family father (art. 1001); to bear ordinary expenses and extraordinary expenses made necessary by failure to fulfil the obligations of ordinary maintenance (art. 1004); and to pay taxes and charges imposed on the income (arts. 1008–1109). Articles 1010 and 1012 apply to liabilities encumbering inheritances subject to usufruct.
III. CESSATION OF THE USUFRUCT
Since the usufruct is constituted for the benefit of a particular person, it ceases, at the latest, upon that person’s death; and, in the case of juridical persons, a maximum term is fixed, as already stated. This was so in Roman law, under which the usufruct was also extinguished by the capitis deminutio of the usufructuary, by consolidation, by destruction of the thing, and by non-use for ten years between persons present and twenty between persons absent.Under the Italian civil law currently in force, too, the usufruct ceases upon the death of the usufructuary and upon the lapse of thirty years, where a juridical person is concerned (art. 970); upon the expiration of the agreed term; upon the total destruction of the thing; upon the union of the status of usufructuary and owner in the same person; upon abuse, through alienating the property, deteriorating it, or allowing it to perish through lack of ordinary repairs (in the latter case, however, a judicial decision is necessary: art. 1015); and through prescription and twenty years’ non-use (art. 1014). Provisions similar to those of the Italian Civil Code are found in the French (arts. 503, 618-35), Spanish (arts. 467-69), Portuguese (arts. 2197-2216), Mexican (arts. 865-941), Argentine (arts. 2841-3003), Brazilian (arts. 713-49), and German (§§ 1030-89) codes.
As regards canon law, it is well known that, in the matter of real rights, the legislator refers to the civil laws of the individual territories, unless these are contrary to divine law or unless canon law provides otherwise (can. 1529).
Now, with regard to the fruits of a benefice, the most common opinion before the CIC, among canonists and theologians alike, held that the entirety of the fruits should become the property of the beneficiary whenever he had fulfilled the corresponding duties. Canon 1473, however, now determines very clearly the beneficiary’s rights with respect to the fruits of his benefice: he is a mere usufructuary who, even if he possesses other property, may enjoy the fruits of the benefice for his honest support, but must spend the surplus on the poor and pious causes. Ownership of the property always remains with the benefice (can. 1472). In enjoying the property, however, the beneficiary is subject to limits established by the law itself. Thus, for example, treasure found in the benefice’s estate and the proceeds from the benefice’s quarries do not belong to the beneficiary, but to the endowment of the benefice itself, evidently after deducting the sum of money spent on the expenses and on the loss of the fruits of the benefice (S. Congr. Concilii, 12-17 Dec. 1931: AAS, 24 [1932], p. 147). For the obligations of the beneficiary who is not the usufructuary of the benefice V. BENEFICIO.
dell'uso e dell'abitaz., Torino 1936; G. Stocchiero, Il beneficio ecclesiast., sede plena, Vicenza 1942; G. Durando, Istituz. di dir. civ., Torino 1946, p. 250 sgg. Innocenzo Parisella