Question I: What emphyteusis is

THE SAINTLY Doctor treats briefly of Emphyteusis in Laconic style in the Diaeta salutis, Title 2. cap. 5., where he also treats of the Feud.

It is called in Greek Emphyteusis, as it were an implanting, or ingrafting. In question here is the grant of an immovable thing with the translation of the useful dominion, the direct dominion being retained, for a certain sum of money, which is called Laudemium; and with the burden of a certain rent to be paid to the Proprietor, and that either in perpetuity, or for the life of one or of several (in which case it is called a vitalitium), or for certain years, however not fewer than ten. He who sells is called the Direct Lord; he who buys, or receives, is called the Emphyteuta.

IT DIFFERS from Leasing. First, because it is constituted only in an immovable thing, which can be made better by cultivation. Second, because by it the useful dominion is transferred. Third, because a lease properly cannot be made for ten years or more, for then by common law the useful dominion is transferred to the lessee, and accordingly it ceases to be a proper Lease, and becomes an Emphyteusis, and this is gathered from Leg. 1. ff. de superficiebus, and from common practice, as Couarruvias teaches, l. 2. var. cap. 16., and Tanner disp. 4. quaest. 7. num. 116. Bassaeus v. Emphyteusis.

FOR the contract of Emphyteusis, that it may be legitimate, these conditions are established by common Caesarean law, as Lessius reports, l. 2. cap. 24. dub. 9., Tanner disput. 4. quaest. 7. dubio 6., although according to various Provinces different ones and different ones are laid down.

THE FIRST is, that it be constituted in immovable and fruitful things, as in fields, houses, pastures, etc.

THE SECOND, that the useful dominion be in the hands of the Emphyteuta, who is therefore bound to all the burdens and taxes which are otherwise usually paid by reason of that dominion, even if the goods should otherwise belong to the Church.

THE THIRD, that the Emphyteuta be bound to pay an annual rent, as D. Bonaventure also notes, in the place cited.

THE FOURTH, that if he does not pay within a certain time, he lose the emphyteutic thing with all the improvements, whether expenses, or works, which he made upon it, and that it return to the former lord.

THE FIFTH, that if the thing entirely perishes without fault of the Emphyteuta, he be freed from the rent, unless he has bound himself to fortuitous cases.

THE SIXTH, that, if he renders the thing seriously deteriorated, he lose it.

THE SEVENTH, that the Emphyteuta not sell the improvements except to the direct lord, first admonished, so that he may buy before others if he wishes.

THE EIGHTH condition is, that if the thing is sold, or alienated in another way, he who receives it pay the direct lord the Laudemium for the investiture which he receives from him.

NOW the Laudemium is a certain part of the price, or valuation, of the thing sold, which indeed by common law is a fiftieth, but by custom a thirtieth, as Sylvester notes, verb. Emphyt. num. 28., from the Ostiense; Lessius num. 57. and Tanner num. 170. Bassaeus in the place cited.