The Right of Use

Use is the right of using another's thing, with its substance preserved (St. Alphonsus, III, 487). If the other's thing is a house, it is called habitation.

It is acquired and extinguished in those ways in which usufruct is.

The rights and burdens of the user and of the proprietor are to be drawn from the title and the law.

Use is the right of using another's thing, its substance being preserved. Usufruct is the right of at once using and receiving fruit from another's things, their substance likewise being preserved.

593. • Principles. I. A usufructuary has the full use and fruit of another's thing, so that he makes all the fruits of the thing his own, and can dispose of them according to his pleasure, whether by himself or through another. The reason is that the usufructuary is judged to act as the person of the proprietor as regards useful dominion. - Thus by Roman Law and French Law.

II. The burden lies on the usufructuary both of furnishing custody and of undergoing expenses, if they are moderate, so that the thing may be preserved in its whole state, and also of making expenses so that he may receive natural fruits from it. He is also held to pay the ordinary burdens by which the usufructuary thing is burdened, such as salaries, annual taxes, and similar things.

III. The usufructuary must use another's thing as a good father of a family, and return it such as it ought to be found after good administration. But the proprietor can do nothing by which the condition of the usufructuary is made worse, because he suffers him to enjoy. - Thus various laws.

594. • Questions. Q. 1. How is usufruct acquired?

Resp. It is acquired 1. from law, and then it is called legal: such is the usufruct of parents from the goods of children, or of a husband from the goods of a wife; 2. from agreement or contract, and therefore it is called conventional.

Q. 2. How does usufruct cease?

Resp. It ceases 1. by the natural or civil death of the usufructuary; 2. by the time established; 3. by the destruction of the whole thing; 4. by consolidation, for example, if the usufructuary becomes owner of the thing; 5. by an all-mannered change, for example, if a meadow becomes a pond; 6. by abuse, by which through the fault of the usufructuary the thing is made worse; 7. by the renunciation of the usufructuary, provided it is not made in fraud of creditors ¹.

¹ These same things are valid as regards the acquisition or cessation of mere use. For (as L. 3, § 3, ff. De usufructu et quemadmodum, etc., has it) by the same modes by which usufruct both is constituted and is ended, by the same modes also bare use is customarily both constituted and ended.

595. • Resolutions. 1. Things consumable by a single act, such as wine, oil, bread, etc., do not come under use and usufruct, because by such use the substance of the thing is not preserved ².

² Usufruct can be had insofar as someone can consume things of this sort and then return their valuation.

2. The usufructuary has the faculty of receiving whatever is born on the estate, namely crops, hay, fruits of trees, etc.; to him also pertains the yield of fishing, the offspring of animals, their wool, milk, etc. Likewise he can cut in woods a certain portion of timber, namely that which a father of a family is accustomed to cut.

3. The usufructuary can cede his right to another by title of sale, leasing, or donation. But the very same cannot be said of a user; who nevertheless, if he has the right of using some house, will be able to dwell in it with his family, even if at the time when he acquired the use he was not married.

4. Natural and industrial fruits hanging at the beginning are received by the usufructuary without the burden of paying for cultivation, or seed, etc. And reciprocally, if he departs before the maturity of the fruits, he can reclaim nothing. But civil fruits are acquired from day to day, and therefore must be divided according to the proportion of time during which the usufruct lasted.

129. Use is a real right of using a thing of another for personal advantage only, with the substance of the thing preserved. That use is called habitation when the thing of which there is question is a house.

Of itself, use does not imply the right of receiving fruits; but from the concession of law, the user can receive certain fruits for his own advantage, or for the utility of the family. But he cannot lease the right to use nor grant it to another gratuitously. - Hence in practice the civil laws are to be consulted.¹

¹ For France, Civil Code, a. 625-635; Planiol, n. 1741-1749; Supplement, p. 15*.

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.

162. Use (usage; gebruik, gebruikrecht) is the real right of using some thing of another for one's own utility alone, like the owner of the thing, its substance being preserved. When the right of using is applied to a house, it is called habitation (bewoning).

The principal difference from usufruct is that the usufructuary can receive from the thing of another any use and any fruits whatever, whether for his own utility or not, while the user cannot receive them except insofar as they serve the use of himself and his own. He can use the thing for his own daily necessity, so that he cannot lease, sell, or gratuitously cede to another either the superfluous fruits or the right which he has, while he who has the use and fruit can do all these things. Whence the user has a right to use without being able to alienate the fruits.

Use is acquired and lost in the same way as usufruct, and gives rise to similar obligations (C.C., a. 625-631).⁶

⁶ The Italian Code treats of use, a. 476 and 521 sq.; Spanish, a. 523 sq.; Dutch, a. 865 sq.; Austrian, a. 504 sq.; German, a. 1090 sq.

Use is the right of using the thing of another, its substance being preserved. - It is called 1st. right, because this use is true dominion, and does not belong to those who have only use of fact, e.g., religious strictly so called. - It is called 2nd. its substance being preserved, because the right of destroying the thing or of abusing it belongs to him who has direct dominion or dominion of property. Usufruct is the right at once of using and of taking fruit from the things of another, their substance likewise being preserved. Wherefore usufruct imports more than use.

Question 1. What are the rights and burdens of a usufructuary?

Response. The usufructuary has the full use and enjoyment of the thing of another, so that at his own pleasure he can dispose of the fruits of the thing, whether by himself or through another. Yet he has the burden of using the thing of another as a good father of a family, and of returning it such as it ought to be found after good administration. Besides, upon him rests the burden both of providing custody, and of undertaking expenses if they are modest, and also of making expenditures that he may take natural fruits from it. The reason for all these things is that the usufructuary is considered to act as the person of the proprietor as regards useful dominion. But often from diverse agreements these rights and burdens are modified.

Question 2. How does usufruct cease?

Response. It ceases 1st. by the death of the usufructuary; 2nd. by the established time; 3rd. by the destruction of the whole thing; 4th. by consolidation, e.g., if the usufructuary becomes owner of the thing; 5th. by total change, e.g., if a meadow becomes a pool; 6th. by abuse, by which through the fault of the usufructuary the thing becomes worse; 7th. by renunciation of the usufructuary, provided it is not done in fraud of creditors. - Cf. Kenrick, nn. 94 and seq. - Bouvier, Law Dictionary, under the word Tenant.

IV. Useful dominion is the right of using and enjoying another's thing, the substance of the same being preserved. One right is called the use of right, another the use of fact. But the use of fact is not a right, but the execution of a right. The proper right is the right of using, which is distinguished from other rights which afford no use, such as is the right of a depositary in the thing deposited, or of a creditor in a pledge. There is added and enjoying, which particle distinguishes usufruct from bare use: for a user is able only to use the thing to his own advantage; whereas a usufructuary can both use the thing and sell, alienate, or let out the fruits of the same, the substance of that thing being preserved. But the proprietary lord is able to alienate the thing itself. Usufruct is of two kinds, legal and conventional: the former is effected by law, the latter by agreement.