The usufructuary and his rights

Abstract

The definition of usufruct in the Roman Text, usufructus eut ius alienis rebus utendi fruendi salva rerum substantia (D.7.11), puts in evidence two particular elements of the institute of usufruct: (a) the right of the usufructuary on a thing belonging to others to serve for the temporary enjoyment of' the right of usufruct (ius in re alienam) and (b) the obligation to conserve the substance and the form of the thing, which constitutes the essential and substantial limit of the right itself, according to the destination of t.t1e thing on which the form depends. Although in Classical Law usufruct is not included in the category of servitudes, this is not sufficient to exclude it as a ius in re alienam as is shown in the mode of acquisition and extinction of the institute, as also from the judiciary process (vindicatio or petitorio). The prevalent view of jurists is that usufruct originat.ed in the second half of tl1e Sixth Century B.C., when the evolution of the family community began to take place due to a relaxation of the patriarchial customs of the ancient period. Extra legal evidence of this is shown by the fact that though unknown at the time of Plautus, it was recognised at the time of Cicero(l). The development of usufruct was in fact tied with the socio-economic changes of the time and the evolution of the family and marriage. The wife was less frequently subject to the manus of the husband in marriage. In these marriages sine manum, the wife did not become a member of the husband's family, hence she had no civil law rights on intestate succession to him. The husband on the other hand was reluctant to give property outright to the wife, as until the time of Hadrian, women in general could not make a will themselves so that on their death, the property would go to the next of kin in civil law. Besides the possibility always existed that she might remarry. Thus usufruct was established as a means of maintenance (2) for widows after their husbands, death, to ensure to them the same conditions of life which existed during their matrimony. This enabled the wife to enjoy during her lifetime the property of the husband, while the ownership itself remained vested in the husband's successors.