ARTICLE II: ON USE AND USUFRUCT

675. Definition. - Use (use) is the right of using another's thing, with its substance preserved, both as to form and as to matter. He to whom use belongs is called a user; but he to whom dominion of the thing belongs is called proprietor.

It is said: 1° right; for here we are treating of use of right, not of use of fact, which is nothing other than actual use of another's thing, revocable at the nod of the one conceding it, such as is the use of Religious as to things of the community handed over to them for use by a Superior or by the rule.

It is said: 2° of using, by which is signified 1) that the right belonging to the user extends only to those things which are necessary for daily use to him and his family, and to children about to be born to him, and guests, according to his condition. Hence, if a user at the beginning of the year has received those things which are necessary to him for the whole year and dies before the end of the year, his heirs must restore to the proprietor that which remains. - 2) That the user cannot transfer his right to another, for example by leasing a house to another, or by yielding the use of a horse to another; for use is judged to have been conceded to him and his own only, until it is clearly evident that a broader faculty was given to him.

It is said: 3° with its substance preserved, both, etc. Hence the user 1) cannot change the thing of which he has obtained the use even into a better form; 2) is bound to preserve the thing whole, i.e. in that state in which he received it, with the exception, as is clear of itself, of things which are consumed by first use.

676. Definition. - Usufruct (usufruct) is the right of at once using and enjoying another's thing, just as the proprietor himself, with its substance nevertheless preserved, both as to matter and as to form. The usufructuary is called the one to whom usufruct belongs.

It is said: 1) the right of at once using and enjoying, just as the proprietor himself. By these words is signified the principal difference which intervenes between use and usufruct. For the usufructuary has not only the use, but also full dominion of the fruits, so that he can dispose of them at his nod, whether by himself or through another; for he is judged to act the person of proprietor as to useful dominion of the thing.

It is said: 2) with its substance nevertheless preserved, both, etc. Hence the usufructuary: 1° must restore the thing to the owner in the state in which it ought to be found after good administration; 2° cannot change the thing, even for the better. Hence, if a pleasure-estate is given to him, he could not destroy unfruitful trees serving pleasant walks so that perhaps he may make kitchen gardens. Wherefore "if the tenant for life," who among us is equated with a usufructuary, "should, by neglect or wantonness, occasion any permanent waste to the substance of the estate, whether the waste be voluntary or permissive, as by pulling down houses" (voluntary waste), "suffering them to go to decay from the want of ordinary care" (permissive waste), "cutting the timber unnecessarily, opening mines, or changing one species of the land into another, he becomes liable, on a suit by the person entitled to the immediate estate of inheritance, to answer in damages, as well as to have his future operations stayed."¹

677. Division. - Usufruct is divided:

1° Into proper and improper. The former is constituted in things not consumable by first use, and concerning it the definition properly treats. But the latter is in things consumable by first use, such as bread, wine, etc. It is called improper or quasi-usufruct, because things consumable by first use cannot be preserved, and therefore through the use of them the substance of the thing does not remain preserved, as is required for usufruct. Yet usufruct can be had in these insofar as someone can consume things of this kind, and then restore to the owner the valuation of them.

2° Into usufruct by particular and universal title. The former is constituted in one or several movable or immovable things, yet determined, for example in such or such designated houses or lands. The latter is founded in the totality, or an aliquot part, of all the goods of the proprietor. Thus by common law a wife has usufruct of the third part of the immovables of her deceased husband.

3° Into legal, which is constituted by law, for example for a wife in the third part of the immovables of a deceased husband, and conventional, which is constituted by contract, for example by donation.

678. • The rights and burdens of a usufructuary, convention being set aside, in general are:

I. Rights. - 1° That he can perceive all fruits, whether natural or industrial, and make them his own, whether he has gathered them by himself or through others. Hence the usufructuary of a flock has right to the wool; the usufructuary of land to hay, crops, stones, willows, and all fallen trees, or trees which, when cut, grow again from stumps and roots. But fruits are understood to be gathered when they have been separated from the soil or from the thing. - Hence if a usufructuary dies, the fruits indeed mature but not yet separated from the soil or from the thing will not pertain to his heirs, but to the proprietor, without any compensation of cultivation, etc., being made. - But if the heir of a usufructuary about to die has gathered immature fruits, he is bound to restore them to the proprietor; for neither could the usufructuary himself gather immature fruits. - But he has a right in all civil fruits, for example the price of the leasing of a house or field, which nevertheless are not judged to be acquired except from day to day; therefore they belong to the usufructuary only in proportion to the time through which the usufruct endures.

2° That he can sell, donate, lease, and hand over fruits in pledge, for he who enjoys through another is judged to enjoy by himself, yet without damage to the proprietor. Therefore "tenants for life have power of making underleases," but only "for any lesser term."¹

II. Burdens. - 1° That he preserve the substance of the thing, according to what was said at n. 676. Therefore he is bound to ordinary or moderate repairs by which the thing is preserved whole, but not to extraordinary ones. Hence also the usufructuary of a flock is bound to substitute other heads from the offspring in place of heads dead, unless he has the usufruct of individual heads separately and not of all collectively.² For the same reason he cannot tear out fruit-bearing trees, and is bound to substitute other trees in place of dead trees;³ but "it does not please that trees overthrown by force of storm ... be substituted."⁴

2° "If the estate be charged with an incumbrance" (or taxes), "the tenant for life is bound, in equity, to keep down the interest" (or the amount of the taxes) "out of the rents and profits."¹

679. • Usufruct and use cease: 1° by natural death of the usufructuary or user; 2° by the appointed time; 3° by the destruction of the whole thing; 4° by consolidation, i.e. if the usufructuary or user becomes owner of the thing; 5° by every kind of change, for example if a meadow becomes a pond; 6° by abuse, by which the thing becomes worse through the fault of the one using; 7° by non-use, with prescription acceding, if meanwhile the proprietor uses it; 8° by renunciation of the usufructuary, provided it is not done in fraud of creditors. But legal usufruct is extinguished in the manner defined by the law itself.