The right of preference of emphyteusis

Abstract

The origin of the right of preference is probably to be found in the frequent stipulation of it in emphyteutical concessions. In fact, in the law of contracts it has happened frequently that a contractual clause was presumed by the law to have been stipulated just because it has been made use of very much by contracting parites. The legislative acceptance of it is in reality not its origin. The first legislative intervention in regard to the right of preference was Lex 3 Codex De Jure Emphyteutico. But since the time when this law was enacted till the present day the right of preference has been modified, extended and restricted in several ways so that it may be said that wherever it has been received it has put, on a garb different from that which it took in other countries. It is here proposed to trace the manner in which the said right of preference was introduced in our legal system and how it was regulated. In which cases could the dominus exercise the right of preference?