Article I: On Census and the Censual Contract

562. Census (rente; inkomst) is said from censere, or estimating, because formerly the goods and incomes of citizens were estimated so that the taxes to be paid by each one might be determined; hence it signifies:

1. Annual revenue (thus someone is said to live from his censuses), especially a direct tax (Mt. XXII, 17); but most strictly revenue from the very powers of the earth, not improved by human industry, but native and intrinsic. Thus it is taken among economists who distinguish a threefold cause of riches: labor or industry which produces them and to which wage or salary is owed; capital, or the means and instruments by which they are produced (to this pertains improvement of the land), and to this interest or usury is owed; the land from whose powers they are produced, and to this census is owed;

2. It signifies a right to annual revenue;

3. The contract by which that right is constituted (a. 1968-69: constitution, etablissement de rente; vestiging van rente); moreover, this can be done in a twofold way: a) by a gratuitous title through donation or testament; b) by an onerous title through purchase and sale, and then it is properly the censual contract.

563. The censual contract is a contract by which the right of receiving revenue is bought and sold, or a real contract by which someone (the creditor, censualist), after the price has been paid which he cannot demand back, acquires from another (the debtor, censuary) the right of receiving revenue from the fruitful thing or person of another (a. 1909). It is said:

1. A real contract, because it is not perfected by the consent alone of the parties, but by the payment itself of the price by which the right to the census is obtained;

2. By which, after the price has been paid which he cannot demand back, because it is a species of purchase-sale, in which the censualist is the buyer, the censuary is the seller: thus it is distinguished from mutuum and letting;

3. Someone acquires the right of receiving revenue or an annual pension: this is the specific difference by which it is distinguished from other sales, because, namely, the right to a pension is the merchandise. In Roman and canon law the revenue itself, or pension, is called the canon; this pension can be either pecuniary or fruit-bearing, according as it will have to be paid in money or in fruits; certain, if the pension is altogether determined, or uncertain, if only an aliquot part is to be paid. He who acquires the right to revenue is called the censualist (rentier, credi-rentier; renteheffer);

4. From a thing or person, because the thing or person itself is not bought and sold, nor the labor or industry of the person, but the right to the pension to be received from it;

5. Of another, because no one is said to have a census upon his own thing, although he receives a pension from it. The other, who must pay the pension, is called the censuary (debiteur; rentschuldige);

6. Fruitful: for if it itself were sterile, the census would be fictitious and null, since nothing can be received from a sterile thing or person, and the right of receiving revenue from a thing or person which could not produce and pay it would be bought in vain.

564. Diverse species of census. Census 1. is either reservative (rente fonciere; grondrent), which someone reserved to himself when he transferred his own thing into the dominion of another (direct and useful), whether by donating or by selling; for example, he sells a field under the condition that an annual pension, or ten measures of wheat yearly, be paid to him. Or it is consignative (rente constituee; gevestigde rente), which someone, retaining dominion over his own person or goods, has assigned, conceded, or sold to another by means of money received from him; for example, after receiving 10,000 francs, he obliges himself to pay an annual revenue of 700 francs. In other words: census is reservative when someone hands over or sells the dominion of his own thing to another for revenue to be paid yearly to himself; consignative when someone hands over or sells to another the right of receiving revenue to be paid yearly by himself, for example, if someone for 1,000 fr. concedes the right of receiving 70 fr.

2. Census, especially consignative, is divided into a) real, which is constituted immediately upon a fruitful thing, for example, a house or estate, and in such a way that it inheres in the thing and follows it to whatever person it may come, and perishes or is extinguished if the thing itself perishes without the fault of the censuary;

b) personal, which is constituted immediately upon the person who obliges himself to furnish an annual pension from his art or labor: this obligation passes to the heirs like other debts;

c) mixed, which immediately affects the thing and person at the same time, so that both the person and the thing upon which it is constituted are immediately obligated, and therefore, when the thing perishes, the census must be paid from the profits of the person, and, when the person perishes, from the thing, into whosever hands it may have come. Such censuses are ordinarily created; indeed, for greater security, censualists are accustomed to demand that either the thing itself or another be handed over in mortgage, and censuses of this sort are called hypothecary.

N. B. Formerly real census was held as a fraction of dominion (un demembrement du droit de propriete) and therefore as an immovable good; but now any census is computed among movable goods (C. C., a. 529), and therefore the censualist is a mere creditor who has a right to a thing and not a right in a thing; and the censuary is a debtor who for the most part can free himself by redemption alone.

3. Census, both reservative and consignative, is redeemable (rachetable; aflegbaar) or irredeemable, according as it can or cannot be redeemed at the will of either one or of both; likewise it is perpetual, or temporal, or for life (rente viagere; lijfrent), according as it is constituted either in perpetuity, or for a determined time, for example, 20 years, or for the life of a man (a. 1910).

From our civil law, every perpetual census (from a gratuitous or onerous title) is essentially redeemable, so that the debtor, when he wishes, can free himself by returning the principal to the creditor. But it is permitted to the creditor to stipulate that the census is not to be redeemed except after 10 years, if a fungible thing is handed over (a. 1911), or except after 30 years, if an immovable thing is handed over (a. 530). Nevertheless he regularly cannot demand payment of the capital, and thus census differs from mutuum, since mutuum supposes that the thing is to be returned after a time and therefore can be demanded back after the time has elapsed. On the contrary, the creditor will not be able to demand repayment except in a threefold case: a) if for two years the debtor does not pay the pension; b) if he does not furnish the security promised in the contract; c) if he falls into a state of insolvency (deconfiture) (a. 1912 and 1913; 1188; 1183). But life census is irredeemable, both on the part of the creditor if the debtor has been in delay in paying, and on the part of the debtor, if perhaps he could be burdened by it more than is fair. But the creditor can seek rescission of the contract if the debtor does not furnish the promised security (a. 1977), and act so that the goods of the debtor are sold if he has omitted payment of the pension (a. 1978).

565. The censual contract of itself is licit and just, provided equality of price is observed. For it is nothing other than a contract of sale or commutation, by which one cedes a fund or money to someone and another concedes the right to an annual pension, which right in common estimation is equivalent to the thing handed over.¹

¹ It does not matter that in the course of time the pensions to be received exceed the price paid: this also happens in the sale of a fruitful thing, which nevertheless no one would call illicit.

Nor can it be said to be a virtual mutuum which disguises usury, even if the census is redeemable by the buyer. For 1. while in mutuum nothing is bought, in census the right of receiving fruit is bought; 2. while in mutuum the principal obligation is to return the principal, so that the borrower is held to return the same principal, in census the principal obligation is to pay the pension, and there is of itself none to return the principal: for the capital becomes dead and can only be returned, at the will of the seller, or even of the buyer.

566. Observations. 1. Life census is not to be confused with the contract which they call the pact of alimentation (contrat d'alimentation ou bail a nourriture), by which someone, for a sum of money, acquires the right to habitation, food, and clothing until the end of life: for this is not a life census, nor is it ruled by its rules, because it does not give a right to a determined sum or quantity of fruits.

2. Life census by gratuitous title is not an onerous contract, but a solemn gratuitous one (a. 1969; cf. a. 1971-73), unless the donation is accessory or simulated. Hence a. 1912 C. C. is not applied to gratuitous census, but to censuses constituted before the Civil Code, because the execution of a contract is to be ordered according to the laws of the time in which the execution is made.

3. The annual pension is prescribed in our law by 5 years; and the title of census by 30 years, whence it is to be renewed.