Article — Marc, Institutiones Morales
Article V: On Emphyteusis and Fief
- I. Emphyteusis is a contract, similar to leasing, by which, under the burden of an annual pension, the useful ownership of an immovable thing is transferred, the direct ownership being retained.
Emphyteusis differs from leasing, because it is only concerning an immovable thing, and also transfers the whole useful ownership for a long time, at least for ten years; and the annual canon to be paid is accustomed to be moderate, nor is it given for fruits, but in recognition of direct ownership.
In this contract what the right is depends on the custom of places and on the agreement itself of the contracting parties, which must be confirmed by a written instrument (III, 865; cf. Ferraris, v. Emphyteusis).
Note. A libellatic contract is when the emphyteuta or feudatory hands over the same estate to a third party under the same conditions. This contract is also called subemphyteusis or subinfeudation. See the civilists and canonists.02
(02) [OCR/source uncertain: the printed source has a note marker after "canonists" on source page 727, but no corresponding footnote is visible before the next page resets the footnote numbering.]
- II. A fief (named from faith or fidelity) is a contract by which the useful ownership of an immovable thing is transferred to another, the direct ownership being retained, under the burden of fidelity and personal service.
He who hands over is called the infeudator; he who accepts, a vassal or feudatory. But these things almost everywhere among nations are now obsolete. Yet see n. 852.