Usufruct

USUFRUCT. - It is the right to enjoy another's property and its fruits, with the burden of the expenses and the care of preserving and maintaining it. The definition corresponds substantially 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 2nd century B.C. and arose for maintenance purposes, principally to provide for the widow. From Roman law the institution passed into the legal systems dependent on it without too many modifications: this is what happened in Italian law as well.

The content of the right of usufruct consists in the faculty of enjoying the thing; this, while it entails the right to collect the natural and civil fruits, prevents alienating it, pledging its ownership, etc. Usufruct differs from emphyteusis (v.); for while the emphyteuta uses the thing as his own, the usufructuary uses it as another's property. The right of usufruct may, however, be transferred either for a certain time or for its entire duration, if this is not forbidden by the constitutive title (Italian Civil Code, art. 980).

I. OBJECT AND SOURCES OF USUFRUCT

Both in Roman law and in Italian civil law the object of usufruct consists in itself of the non-fungible thing: for only of such things can one make use salva substantia. However, things whose use necessarily entails their destruction (called for that reason consumables) can also be included in usufruct, but in this case the person who enjoys the usufruct (the usufructuary) "has the right to use them and is obliged to pay their value at the end of the usufruct according to the agreed valuation. If there is no valuation, the usufructuary has the option of paying for the things according to the value they have at the time when the usufruct ends, or of returning others of equal quality and quantity" (Italian Civil Code, art. 999). This kind of usufruct, likewise derived from Roman law, is called quasi usufruct (cf. D. 7, 5, 2, 1).

The object of usufruct in Italian civil law may also be things subject to deterioration, for example an automobile; in this case, however, the usufructuary has the right to use them according to the use for which they are intended and, at the end of the usufruct, is obliged only to return them in the state in which they are found (art. 990). The sources of usufruct are: 1) the will of man; 2) the law (one may think of the so-called legal usufruct of the father over the property of the minor child or of the husband over the wife's dowry); 3) usucapion (Italian Civil Code, art. 978). The duration of usufruct cannot exceed the life of the usufructuary (art. 979). Usufruct constituted in favor of a juridical person cannot last more than thirty years (ibid.).

II. RIGHTS AND DUTIES OF THE USUFRUCTUARY

In Roman law the usufructuary acquired natural fruits by perceptio; civil fruits, on the other hand, day by day. The trees of a coppice fell into the ownership of the usufructuary upon the cuttings carried out with the due precautions. The dead trees and the heads of a flock likewise fell into his ownership, but in the latter case he had to replace the dead heads. He could enjoy mines in operation and, indeed, at least in Justinianic law, open new ones, where this could be done without causing damage.

In Italian civil law the principal rights of the usufructuary are the following: 1) to obtain possession of the thing; 2) to draw from it every utility and all the fruits (v.), whether natural or civil, within determined limits (art. 981; cf. the reservation of art. 988). Natural fruits are perceived by the usufructuary even if pending, from the beginning of the usufruct, without the burden of compensating the expenses for sowing and cultivation; civil fruits day by day (art. 984); 3) he enjoys the constructions and plantings made by the owner after the beginning of the usufruct, subject to the obligation to pay interest on the sums expended (art. 983); 4) to carry out improvements and additions that do not alter the economic destination of the thing, subject to the right, on the part of the usufructuary, at the moment of restitution, to an indemnity for the improvements (art. 985); 5) to enjoy the quarries or peat bogs already opened and in operation at the beginning of the usufruct (art. 987). To open new ones, however, he needs the consent of the owner (ibid.); 6) to proceed to the ordinary cuttings of woods and of high-trunk trees scattered through the countryside "taking care to maintain the original consistency of the woods and rows and providing, if necessary, for their reconstitution" (art. 989); always subject to the right of the owner to those uprooted, broken or perished by accident; 7) to make his own the fruit-bearing trees uprooted, broken or perished by accident, subject to the obligation to replace them with others (art. 991); 8) to transfer to third parties, in whole or in part, for a certain time or for the entire duration, the exercise of the right of usufruct or even the right itself, the usufructuary nevertheless remaining bound with the concessionary toward the owner, until the transfer is notified to the latter (art. 980). For the usufruct of consumable and deteriorable things, arts. 995-96 apply, while for the usufruct of installations, factories, machinery, which have a productive destination, there is reserved to the usufructuary the right to a suitable indemnity for expenses exceeding ordinary repairs (art. 997). Finally, for live stock (e.g., work animals) and dead stock (e.g., ploughs, machines, seeds), the Italian Civil Code has resolved the controversy concerning their restitution, establishing that the live and dead stock of an estate must be restored in equal quantity and quality. Their excess or deficiency must be settled in money, according to their value, at the end of the usufruct (art. 998). As regards the duties of the usufructuary, it should be observed that in Roman law it was established that he must use the thing and enjoy it tamquam bonus pater familias, preserving it in good condition and bearing all the 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 of the security, with its exceptions in legal usufruct, etc. In Italian civil law too the usufructuary is bound to use, in the enjoyment of the thing, the diligence of a good father of a family (art. 1001); to bear the ordinary expenses and the extraordinary ones rendered necessary by the failure to fulfil the obligations of ordinary maintenance (art. 1004); to pay the taxes and charges burdening the income (art. 1008-1109). For the liabilities burdening an inheritance under usufruct, arts. 1010 and 1012 apply.

III. TERMINATION OF THE USUFRUCT

Since usufruct is constituted for the benefit of a specific person, it ceases, at the latest, with the death of that person, and in the case of juridical persons a maximum term is fixed, as already stated. Thus it was in Roman law, in which usufruct was also extinguished by the capitis deminutio of the usufructuary, by consolidation, by destruction of the thing, by non-use for ten years between those present, twenty between absentees.

Also in current Italian civil law, usufruct ceases with the death of the usufructuary and with the passage of thirty years, in the case of a juridical person (art. 970); with the expiration of the agreed term; with the total destruction of the thing; with the merging of the status of usufructuary and owner in the same person; with abuse, by alienating the goods or deteriorating them or allowing them to perish for lack of ordinary repairs (in the latter case, however, a judgment of the court is required: art. 1015); with prescription and with twenty-year non-use (art. 1014). Provisions similar to those of the Italian Civil Code are found in the French (art. 503, 618-35), Spanish (art. 467-69), Portuguese (art. 2197-2216), Mexican (art. 865-941), Argentine (art. 2841-3003), Brazilian (art. 713-49), and German (§§ 1030-89) codes.

As regards canon law, it is well known that the legislator, in matters of real rights, defers to the civil laws of the individual territories, unless they are contrary to divine law and unless canon law provides otherwise (can. 1529).

Now, as for the fruits of a benefice, the most common opinion before the CIC, among canonists and among theologians themselves, held that the entirety of the fruits should become the property of the beneficiary, whenever he had fulfilled the duties pertaining thereto. Can. 1473, however, now determines very clearly the rights of the beneficiary over the fruits of his benefice: he is a simple usufructuary who, even though he possesses other goods, may enjoy the fruits of the benefice for his honest sustenance, spending the surplus, however, on the poor and pious causes. The ownership of the goods always remains with the benefice (can. 1472). In the enjoyment of the goods, however, the beneficiary has limits established by the law itself. Thus, for example, treasure found in the benefice's land and the proceeds of 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 required for the expense and for the loss of the fruits of the benefice (S. Congr. Concilii, 12-17 Dec. 1931: AAS, 24 [1932], p. 147). For the obligations of a beneficiary who is not a usufructuary of the benefice, v. BENEFICIO.

dell'uso e dell'abitaz., Turin 1936; G. Stocchiero, Il beneficio ecclesiast., sede plena, Vicenza 1942; G. Durando, Istituz. di dir. civ., Turin 1946, p. 250 ff.

Innocenzo Parisella