Usufruct

I. Notion. Usufruct is the right of receiving the fruits of another's thing, with the substance of the thing preserved. In Roman Law it is called: "the right of using and enjoying another's things, with the substance of the things preserved."¹ From the notion handed down, it is clear that usufruct is not constituted in things which are consumed by first use. A right in things of this sort, for example in wine or oil, is sometimes called quasi-usufruct (St. Alphonsus, III, 487).

¹ Law 1, Digest, De Usu fructu.

II. Acquisition. Usufruct can be acquired: 1. by law, for example where the law grants parents a right in the fruits of the goods of minors; 2. by the will of the owner, who, for example by contract or testament, assigns usufruct to someone.

III. The rights and burdens both of the usufructuary and of the proprietor, what precisely they are, you should deduce from the title by which the usufruct is constituted, and from civil law.

IV. Cessation. Usufruct ceases: 1. by the lapse of the time for which it was constituted, or by fulfillment of the resolutory condition; 2. by the death of the usufructuary, or, if there is question of a moral body, by its dissolution; 3. by the fact that ownership of the thing passes to the usufructuary; 4. by renunciation by the usufructuary of his right; 5. by prescription or non-use for the time required by law; 6. by the destruction of the thing.

What is paternal power? - Paternal power is the complex of rights of parents over children, and it arises from a twofold cause: 1. because children have had life from them; 2. because parents must educate them fittingly. C. A. 147; C. L. 137. It is from Natural and Positive Law at the same time, positive law defining and determining natural right. For the rights of parents over children flow from natural and civil law. By Natural Law, piety is owed to parents, whether legitimate or illegitimate, namely to father and mother, and it belongs to them equally and perpetually as to love and honor, but not however as to obedience after the son has become major, or has been emancipated. C. I. 220. Besides this, power belongs to parents as to those things which pertain to the spiritual salvation of children. And this also belongs equally to each, indeed also to grandfather and grandmother. But if they disagree among themselves, he prevails who consults the salvation of the child. And, when the father has died, if the mother as tutor and the paternal grandmother disagree, the latter will be stronger. Benedict XIV, Ep. Probe te, §§ 20, 21, 23; Ep. Postremo mense, §§ 16, 17; C. Ex litteris 2, de Conv. infid. - The natural power of parents in those things which pertain to the salvation of the soul ends when infancy has passed; in those things which pertain to the choice of state it ends at puberty, C. Cum virum 12, de Regul.; C. A. 148; in those things which pertain to domestic care and discipline it ends by emancipation. But in those things which regard the sustenance of the body and generation of offspring, children are their own masters. And as to entering marriage, they commonly are bound only to seek the counsel of parents. L. 335.

But emancipation is naturally had when the son of the family has already grown sufficiently by age, so that he himself can now be father of a family, and by himself duly consider and oblige himself concerning those things which pertain to his own person and to his exterior goods. C. 11, 12, de Regul.; S. Th. 4 D. 27, q. 2, a. 2; D. 38, q. 1, a. 1, q. ult., sol. 3; 2. 2, q. 104, a. 5; S., q. 43, a. 2; q. 58, a. 5; St. Basil the Great, Epist. 276, Migne, vol. 32, col. 1011.

By Common Law paternal power belongs only to the father of the family, and it was per se perpetual. Inst. 1, l. 1, t. 9, §§ 2, 3; t. 12; lib. 1, tit. 6, ff., §§ 3-5, de Patr. pot.; l. 8, t. 46, C.; C. 2, de Convers. infid. But from the More Recent Laws it belongs also to the mother of the family. C. I. 220; C. G. 372; C. B. 1634, 1684, 1685; C. L. 138; C. He. 274. But the mother does not use it as long as the father uses it, to whom it principally belongs. C. I. 46, 220, 230, 331; C. G. 141, 373, 507; C. A. 144, 147; C. H. 154; C. B. 1634; C. L. 139, 155. Moreover it belongs over legitimate and natural children, over natural children acknowledged, over natural children acknowledged and legitimated, and at least in some way also over adoptive children. C. I. 66, 184, 194, 210, 211, 220; C. H. 154; C. A. 183; C. B. 1306, 1757, 1765; C. L. 166. Cf. here n. 663.

Paternal power is exercised by the father, and when he has died or is absent, by the mother with equal right. C. I. 46, 220, 231; C. H. 154; C. G. 141, 390; C. A. 144, 147; C. B. 1627, 1684; C. He. 274. Yet a father dying has the right to prescribe to the surviving mother the manner he wishes to be observed in the education of the children and the administration of goods. C. I. 235, 1059. Cf. C. G. 391; C. B. 1852 seqq. If the mother enters second nuptials, it will be in the power of the family Council or pupilary Judge to permit or remove guardianship from her. C. I. 237; C. G. 395; C. A. 255. When parents are lacking, and a tutor has not been named, guardianship by law belongs to the paternal grandfather; and, he being lacking, to the maternal grandfather. C. I. 244; C. B. 1776.

Moreover paternal power is exercised partly over the persons, partly over the things of children. C. B. 1627.

Paternal Power is exercised, 1. over persons by the faculty which the father has of retaining the son at home, C. He. 273, unless the son wishes voluntarily to give his name to military service. C. I. 221; C. G. 374; by the faculty which the father has of moderately correcting and punishing a disorderly son, C. He. 275; also of barring him from his own house, and even having recourse, where there is need, to the tribunal, and of placing him in another house of education or correction. C. I. 222; C. H. 155, 156; C. G. 375 seqq.; C. A. 145; C. B. 1631, 1632; C. L. 143; L. 3, de Patr. pot., C. Moreover the son is prohibited without the consent of parents from giving himself into adoption, C. I. 208; C. G. 346; C. A. 181; C. B. 1747, and from entering marriage. C. I. 63; C. G. 148; C. A. 49, 153; C. H. 1305; C. L. 1058, 1061; C. He. 98. But when the mother dissents, the consent of the father suffices. C. I.; C. G., ll. cc.; C. He. 274. Finally the right of appointing a tutor belongs to the last surviving parent. C. I. 242; C. G. 397; C. B. 1777; C. He. 274.

Excepting marriage, which before puberty is null from canon law, as to other acts and contracts sons of a family who are minors are only naturally obligated; and if in due time they do not seek restitution in full, they can also be civilly obligated, and those who contract with them are naturally and civilly obligated. Therefore, if they have entered betrothals, if they have emitted a vow, they are bound by the betrothals and by the vow. If they have donated anything, they transfer dominion to the recipient; and if they themselves receive something as a gift, they licitly acquire and retain dominion. C. I., de Desp. impub.; C. I. 1304; C. G. 1314; C. H. 160, 161; C. A. 244, 246; C. B. 106; C. L. 98, 99; Inst. 1, l. 3, t. 19, § 6; S. Th. 2. 2, q. 88, a. 8; 4 D. 27, q. 2, a. 2; L. l. 3, n. 918; Lugo, de Iust., d. 22, nn. 228, 295, 300.

But although a minor validly contracts, from the More Recent Laws he does not contract firmly if various prescriptions of those laws are not observed, and then restitution in full is conceded to them, which also holds in the forum of conscience, since a law of this sort is definitive of right and just; since it is for protecting good morals, for the peace and good of families, and for the common good. C. G. 2012; C. I. 317, 319, 1899.

From C. I. a minor is restored because he is a minor, and an action of nullity is admitted: 1. If a non-emancipated minor performed an act by himself without the intervention of the father or his legitimate representative. 2. If an emancipated minor performed by himself an act for which the law requires the assistance of a curator. 3. When the formalities constituted for certain acts by special dispositions of law are not observed. But an action of nullity is not admitted: 1. If the minor by evil art and deceit concealed his condition as a minor. 2. If the matter concerns an obligation arising from delict or quasi-delict. 3. If it is proved that what was paid was turned to the convenience and utility of the minor. C. I. 1300, 1303, 1305, 1306, 1307, 1899.

From C. G. a minor is restored because he was harmed, and an action of nullity is admitted if the prescriptions of the law in contracts of minors were not observed. Rescission is not admitted: 1. If the harm happened from a chance event. 2. If a minor exercises commerce or some art, as to contracts entered by reason of his commerce or art. 3. If the matter concerns an obligation flowing from delict or quasi-delict. 4. If it is proved that what was paid went to their convenience and utility. C. G. 1304, 1305, 1306, 1308, 1310, 1312, 2012; L. l. 3, nn. 514, 918. Cf. Troplong, della Vendita, cap. 2, art. 1594, num. 166 seqq.

From C. H., the formalities of law not having been observed, the contract of a minor becomes liable to rescission. But he is not bound to restitution except insofar as he became richer by the thing received. C. H. 317, 420, 1163, 1304, 1764, 1765. From C. A., in general a minor indeed cannot be validly obligated without the consent of the father and the other prescriptions of the law. Yet he can freely dispose of things acquired by his own industry, and of others given to him for his own use after puberty has been attained. C. A. 151, 152, 244, 246, 248. From C. B., a minor needs the consent of his representative for any declaration of will whatever, unless this procures a juridical advantage for him, or unless the matter concerns things left to his free disposition. Without the aforesaid consent of the representative, the act can be rescinded. C. B. 108 seqq. From C. L. 297 seqq., the acts of a minor are null if they are made without due authority. But they themselves cannot use this nullity as to obligations upon things of their own art or profession, or if they use deceit so that they may be held as majors.

The power of the father is exercised, 2. over the things of children. From common Law the son was at first a thing of the father of the family; whatever he acquired belonged to the father. Afterwards peculium was recognized. Peculium is any good whatever proper to the son, separated from paternal goods. It is fourfold: 1. Castrense, acquired by military service or on the occasion of military service; and this whole thing, in perfect dominion, belongs to the son. Yet one below puberty does not have its administration.

2. Quasi-castrense, acquired by the profession of sciences or liberal arts, or by some civil office, for example, of judge, advocate, physician, teacher, from an ecclesiastical office or benefice; and the perfect dominion of this also belongs to the son. Yet administration belongs to the father if he himself is below puberty.

3. Adventitious, which comes to the son from elsewhere than from paternal goods, and not by regard for the father, for example, what comes to the same son from the mother, from the maternal line, or by regard for the mother, or what is acquired by his own industry and labor, by the liberality of others, by chance and fortune. The dominion of ownership belongs to the son; the usufruct and administration of this peculium belongs to the father as long as he lives. Therefore by Roman Law the father has the usufruct of all these goods of the son; and this usufruct ends only by the death of the father, otherwise than is had by More Recent Law.

4. Profectitious, which either is acquired from paternal goods, or has been donated to the son by regard for the father. And this whole thing belongs to the father, in ownership, usufruct, and administration. Inst. 1, l. 2, t. 9, §§ 1, 2; l. 3, t. 29; Lugo, d. 5, n. 23 seqq. The father can dispose of adventitious goods if they are consumable, with the burden however of restitution. If the son trades outside the father's house from goods other than paternal goods, the gain is adventitious. If he labors in the paternal house and is fed by the father, or trades from the father's goods, it is profectitious. "If a son trades with the money of the father, either received as a loan or secretly stolen, at his own risk, so that he seriously determines to preserve the father unharmed in any event whatever, it is certain from the common opinion of all cited by Laymann, l. 3, tr. 4, c. 8, n. 12, that the whole gain pertains to the ownership of the son as adventitious peculium. Why is this? Because although he obtains the whole gain by the money of the father, he obtains it in such a way that the whole gain is derived not from the money of the father, sterile of its own nature, but from the industry of the son, which renders the money fruitful." Ithur., Cas. 3, n. 6; L. 488.

The father of the family and the son of the family are held as one person. Since therefore no one can contract with himself, if they contract, the pact is civilly void. Civilly, for naturally they are mutually obligated and obligate. Inst. 1, l. 3, t. 19, § 6. A son of the family, not even with the father consenting, can make a testament concerning adventitious or profectitious peculium; but he can, even against the father's will, concerning castrense or quasi-castrense peculium. Inst. 1, l. 2, t. 12.

From More Recent Laws, minors are held by law incapable of protecting themselves and their own goods. Hence as to each, he with whom paternal power is represents them. C. B. 1630; C. L. 98, 100; C. He. 279.

The administration of all goods of minor children is in the hands of the father or mother, or tutor, who must supply the incapacity or lack of skill of the children until they become majors or obtain emancipation. Exceptions must be made, from C. B. 1638; C. L. 147; C. He. 294; C. I. 224, of goods given to the son with exclusion from this administration of the father. Cf. C. L. 146, 147. Majors are altogether free in managing their own affairs, unless in some case the law specially forbids this to them, and therefore they have full administration of their own goods; but emancipated persons have it only limited. C. I. 323, 310 seqq.; C. G. 488, 476 seqq.; C. A. 149, 187, 251. Cf. C. L. 305 seqq., 311.

Hence he who exercises paternal power manages the affairs of the son. C. I. 224, 242; C. G. 389; C. A. 149, 152. He, not the son, acts in judgment, enters upon inheritances coming to the son after an inventory has been made, accepts donations, C. I. 226, 1059; C. A. 205, 222 seqq., 243, and administers his goods, C. I. 224; C. G. 389; C. H. 159; C. A. 149. But goods, whether immovable or movable, excepting those which cannot be preserved by being preserved or become worse, he cannot alienate, bind by mortgage or pledge, nor likewise receive a loan in the name of the son, nor exercise other acts which exceed acts of simple administration, except from a cause of necessity or evident utility and by decree of the civil tribunal. C. I. 224, 225; C. H. 164; C. G. 389; C. B. 1640 seqq.; C. L. 150; C. He. 290, 299, 300.

The father, or mother exercising paternal power, has the usufruct of those things which come to the son by succession, donation, or another lucrative title. C. I. 228, 229, 231; C. G. 384, 386; C. H. 160; C. B. 1640, 1685; C. He. 294, unless the goods were left to the son by testament, or given by donation, on this condition, that the usufruct not pertain to the parents, C. I. 229; C. G. 387; C. B. 1651; or were left to the son by testament, or given by donation for undertaking some course of life, art, or profession, C. I. 229; or for his education and instruction, C. H. 162; or unless, against the will of the parents, the son accepted the donation or legacy, or entered upon the inheritance, C. I. 229. Likewise excluded from that usufruct are those things which the son acquired for himself by labor, profession, or separate industry, C. I. 229; C. G. 387; C. B. 1650, 1651, and the goods of the succession of a son as to which parents have been declared unworthy. C. I. 728; C. G. 730.

To this usufruct there inheres the obligation of feeding, sustaining, educating, and instructing the children. C. I. 230; C. G. 385; C. B. 1602, 1603, 1606, 1656; C. L. 148; C. He. 293. Neither father nor mother has the usufruct of the goods of natural children. They can only administer their goods, but with the burden of rendering an account also concerning the fruits. Gousset on a. 384, C. G.; C. I. 184. Cf. C. L. 166, 167.

From C. A. 149, 150, 151, 154, all goods, administration excepted, simply pertain to the son; yet the father can deduct the expenses of education from the revenues. From C. H. 161, goods acquired by children from the goods of the same parents simply pertain to the parents. From the same C. H. 160, the usufruct even of those goods which the son acquired by his own labor and industry pertains to the parent exercising paternal power. From C. L. 145, 146, 147, the usufruct of goods which a son of the family acquires by his labor, his industry, his means, or by any other gratuitous title whatever, pertains to the parents, unless they were given with exclusion of this usufruct, or the children acquire by arms, letters, liberal arts, or acquire by their own labor and industry, but live from themselves with the father's permission.

Usufruct of this sort ends by the emancipation of the son, or by death, or when minority or legitimate age has been completed; by the widowed father or mother passing to other nuptials; if the father abuses paternal power, either by not caring for the obligations imposed or by administering goods badly, with a sentence of the tribunal added; and likewise it ceases with respect to the spouse by whose fault divorce has legally been pronounced. C. I. 156, 228, 232, 233; C. G. 384, 386; C. H. 167, 172; C. B. 1666, 1673, 1679, 1680; C. He. 297 seqq. From C. B. 1661, 1662, usufruct also has an end by the marriage of the son, and by renunciation of the father. From C. G. 384, 386, usufruct is conceded to the father, and after he has died to the mother remaining unmarried, up to the eighteenth year of the children, or their emancipation. Cf. C. L. 149; C. He. 274, 292.

But when the son has become a major, those things which have been done by the parents, if they were done according to law, remain ratified; but otherwise they can be made void by him. And if meanwhile a conflict arises as to goods between father and son under paternal power, the latter will be able to have recourse to the tribunal. C. I. 224, 227, 1304; C. G. 1314; C. H. 165; C. A. 271; C. B. 1667, 1668; C. L. 153; L. 488, 543, 544; Gousset 682; C. He. 283, 284, 297 seqq.

Paternal power is dissolved by the death of the father or son, C. H. 167; C. L. 170; C. He. 274; by adoption of the son, C. H. 167; C. B. 1757, 1765; C. A. 183; by emancipation of the son, C. I. 220, 311; C. G. 372, 476-479; C. L. 170; C. H. 167; C. A. 172, 252. But a son is emancipated by the law itself through marriage, C. I. 310; C. G. 476; C. L. 304; C. He. 14, otherwise from C. A. 175. Emancipation is a legitimate act by which a father dismisses his minor son from his power, so that he is made his own master. Emancipation cannot be made before the completed eighteenth year, C. I. 311; C. He. 15. It is dissolved besides by majority of age, C. I. 220;

C. G. 372; C. A. 172; C. L. 170. Cf. here 664. From C. B. 386, which does not admit emancipation, declaration of majority can be had in the eighteenth year of age. It is likewise dissolved if the father abuses paternal power, with a sentence for the crime added. C. I. Poen. 392; C. H. 171; C. B. 1666, 1680; C. A. 177, 178. Paternal power ought to consist in piety, not in atrocity. If the mother survives, she does not simply lose it, although she passes to other nuptials. Yet in this case, from C. I. 237, she can be removed from the administration of the son's goods. From C. B. 1697, a mother passing to other nuptials loses paternal power in part. Cf. C. L. 155 seqq.; C. He. 286. When parents are interdicted, insane, or mad, their paternal power remains suspended. C. I. 220, 229 seqq.; C. A. 179; C. B. 1676 seqq.

When paternal power has been dissolved, the son of the family becomes his own master. But whether he is his own master or is still subject to paternal power, the father of the family can usefully contract with him, and from the eighteenth year of age he can make a testament. C. I. 763, 1107; C. A. 271, 596; at the sixteenth year, but in a limited way, from C. G. 903, 904. Inst. 1, l. 1, t. 12.

Is a son judged to renounce the usufruct to which he has a right, if, with him seeing and silent, the father receives this usufruct? - R. Negatively, at least speaking generally. The reason is that silence would be equivalent to renunciation only insofar as the son could easily protest. Now reverential fear for the most part stands in the way of his being able to do this easily. From C. I. 234, if, after usufruct has ceased, the parents still continue to receive it, with the son staying with them, and without the condition of rendering an account having been established, the parents or their heirs are bound only to the fruits existing from the day on which they are demanded.

What are the rights and obligations of spouses concerning goods? - If Natural Law is considered, marital society does not prevent both husband and wife from retaining ownership, usufruct, and administration even of goods which they had before marriage, and which they acquire during marriage. Yet they must concur for expenses necessarily to be sustained on account of common burdens. Moreover, it is fitting that the husband either have the whole administration of goods, or certainly assist the wife as much as is necessary for supplying her weakness.

But if positive Law is considered, the husband's power in this matter is broader. Hence by positive Law various goods of the wife are distinguished. S. Th. 2. 2, q. 57, a. 4.

Some goods of the wife are dotal, whose fruits the husband enjoys for sustaining the burdens of marriage; others are paraphernal, namely beyond the dowry, which the wife has beyond the dowry, and which she specially reserves to herself; others are common, which by pacts of the spouses or by determination of law are brought into a certain society. Before entering marriage, spouses can determine under what conditions their goods are to be subjected, with certain statutes of the law observed. If they have omitted to do this, the law will supply.

From Roman Law: The wife has direct dominion of her dowry, but the husband has usufruct and administration. When the husband has died, she is preferred to all personal creditors of the husband, and even during life she can juridically seek the dowry again if she fears lest the husband become unable to restore it. If the dowry consists in money, or in other things consumable by use, or in appraised things handed over, full dominion of the dowry is indeed attributed to the husband, but with the obligation of restoring the value, dominion being transferred for the wife into all goods of the husband according to the rate or quota of her dowry. The wife has full dominion and administration of paraphernal goods, so that concerning these the husband, with her unwilling, can dispose of nothing. Hence as to these she in no way depends upon the husband.

The ownership and utility of common goods pertain to each spouse; but administration of the same pertains to the husband alone. But this community of goods can admit various conditions or restrictions, and therefore attention must be given to the various dispositions of places. Gury 549; Elbel 69; L. 489; Troplong, della Prescrizione, c. 3, n. 483 seqq.

From More Recent Law: In the first place we can distinguish goods of the wife, goods of the husband, and common goods. As to goods of the wife, these likewise are either dotal or extradotal, or paraphernal. Dowry is goods brought to the husband for sustaining the burdens of marriage. But any goods whatever of the wife not constituted as dowry are held as paraphernal. C. I. 1388, 1425; C. G. 1540, 1575; C. A. 1218.

That there be dowry it is necessary: 1. that it was expressly constituted by this name, C. I. 1388; C. H. 1336. Therefore those things which are donated to the woman by contract of marriage are not dotal, unless something else has expressly been provided. But it is otherwise from C. G. 1541. Moreover, dowry can comprehend all goods, even future goods. C. I. 1389; C. G. 1542; C. A. 1218, 1227; C. H. 1336, 1337. 2. That an instrument be drawn up by a notary, and, if the dowry is constituted by the spouses themselves, before marriage. C. I. 1382, 1391; C. G. 1394. For after marriage dowry can neither be constituted nor increased by them. C. I. 1341; C. H. 1338; and from C. G. 1543, not by others either. Cf. C. A. 1225; C. H. 1344. 3. That nuptials have been entered from Civil Law. L. 3, de Iure dot.; C. I. 93; C. G. 165; C. A. 44; C. H. 42.

He who constitutes a dowry must furnish it from his own goods, even if the woman does not lack her own goods. C. I. 1392, 1393, 1394, 1395; C. G. 1544, 1545, 1546; C. A. 1224. Cf. C. H. 1340, 1341; and he furnishes security against eviction. C. I. 1396; C. G. 1547. But the husband is not bound to surety for the dowry unless he is obligated to it by agreement made, or is driven to it by sentence of the judge, if the dowry is exposed to danger, and the dowry was constituted by him who, if it were lacking, would be compelled to furnish support to the dowered woman. C. I. 1400; C. G. 1550, 1563; C. A. 1245. Cf. C. H. 1345, 1349, 1358.

Of those things which are given by reason of dowry, some pass into the full dominion of the husband, others do not, and constitute a permanent dowry. Things which are consumed by use pass into the full dominion of the husband, C. A. 1227; things, whether movable or immovable, which are given to him in payment, C. I. 1403; C. G. 1553; movable things, if they were given appraised, C. I. 1401; C. G. 1551; not likewise immovable things, unless this was openly expressed. C. I. 1402; C. G. 1551; C. A. 1228. From C. H. 1346, if nothing is determined in the marriage contract, the wife preserves dominion of all her dotal goods. Cf. C. B. 1227, 1228.

Of those goods which constitute a permanent dowry, natural and direct dominion remains with the wife; civil and useful dominion passes to the husband. C. A. 1227, 1228, 1230. Therefore, by force of the natural and direct dominion of the wife, the increase or damage of the dowry will belong to the wife. By force of the civil and useful dominion of the husband, the husband has administration and usufruct of dotal goods; whence he administers dotal goods as his own, acts in judgment for them, C. I. 1339; C. G. 1549; C. H. 1357, 1360, and all things which are contained under the name of fruits are his from the marriage entered, C. I. 1399; C. G. 1549; C. A. 1227; and if counted money was promised, interest by the law itself is owed to him, although delay for payment had been stipulated. C. I. 1397; C. G. 1548. But the husband must furnish that diligence in administering dotal things which he furnishes in his own things, and he must fulfill all obligations of a usufructuary, C. I. 1408; C. G. 1562. But he is bound to use the fruits for feeding the family, for this is why the fruits are assigned to him, namely for bearing matrimonial burdens.

A woman can obtain separation of dotal goods by the office of the judge if the dowry is in danger, or the affairs of the husband are turning to evil, or she has been judicially separated from him. C. I. 1418; C. G. 1563. When this has been obtained, she herself, in place of the husband, administers the dotal goods, C. I. 1424; C. G. 1449; C. H. 225, 1365; but together with the husband she must provide for domestic necessities and for the instruction of the children. C. I. 1423; C. G. 1448. Cf. C. A. 1241, 1263. It can be established in the marriage contract: 1. that the wife receive each year a part of the fruits for small expenses, C. I. 1399; C. G. 1549; 2. that the surviving spouse receive some gain beyond the dowry, with the legitimate portion of the children preserved. C. I. 1398; L. l. 3, n. 539.

Dotal goods regularly, while marriage remains, cannot be alienated, and an alienation made can be revoked even by the husband himself who consented to the alienation. C. I. 1407; C. G. 1560. Dotal goods, namely all from C. I. 1405, but only immovables from C. G. 1554. Regularly; for they can be alienated from a grave cause of necessity or utility, by decree of the tribunal and consent of each spouse, C. I. 1405; C. G. 1558; C. H. 1358 seqq.; or if alienation was permitted in the marriage contract itself. C. I. 1404; C. G. 1557. They cannot be alienated for any cause whatever from C. I. 1405, which distinguishes nothing, except the cause of placing some child from C. G. 1556. Alienation, moreover, also comprehends exchanges, servitudes, and mortgages. C. I. 1404, 1405; cf. C. G. 1554, 1559. While marriage remains; therefore also after separation from C. I. 1405; cf. C. G. 1449. But if, while marriage remains, a woman has legitimately contracted debt, or any obligation whatever, after the marriage has been dissolved even dotal goods are bound to creditors from C. I. 1407; but otherwise from C. G. 1558, 1560. Cf. C. A. 1260.

When the marriage has been dissolved, the dowry ceases and must be restored. The dowry must be restored to the wife, or to her heirs. C. A. 1229; C. H. 1365. Things whose civil and useful dominion only was in the hands of the husband must be restored immediately in their own species, as they then are. C. I. 1409, 1411, 1412; C. G. 1564, 1566, 1567; C. H. 1367; and if by the fault of the husband they have become worse, the loss is charged to him. C. I. 1408; C. G. 1562; C. H. 1360, 1375. But of things of which the husband had full dominion, only the price must be restored within a year. C. I. 1401, 1410; C. G. 1551, 1565; C. H. 1347, 1366, 1370. From these the woman can retain for herself linens and those things necessary for her ordinary use, with their actual price deducted, if, after an appraisal of the same had been made, they were first given. C. I. 1411; C. G. 1566. Cf. C. H. 1384.

Besides this, the fruits of the last year of marriage are to be restored, according to the proportion of time. The year is computed from the anniversary day of the marriage celebrated. But the widow can according to her judgment either demand these fruits, or support for the whole year of mourning. Besides, during this year housing and mourning clothes are owed to her. C. I. 1415, 1416; C. G. 1570, 1571; only mourning clothes, C. H. 1879. Cf. C. A. 1242, 1243. Finally, when the marriage has been dissolved, gains also or dotal increases are owed to the surviving spouse from the goods of the deceased, if a pact concerning them was present in the marriage contract. C. I. 1398.

Paraphernal or extradotal goods are those which the wife reserves to herself outside the dowry. C. H. 1381. These are the wife's by full right, and therefore she administers them and enjoys their usufruct. C. I. 1427; C. G. 1576; C. H. 1382. Yet she cannot alienate immovables, nor stand in judgment for them without the express consent of the husband, or, with the husband resisting, without sentence of the tribunal. C. I. 134, 136; C. G. 215, 217, 1576, 1538; C. H. 1387; cf. C. A. 91. The same must be said from C. G. 1536, if the wife is altogether separated in goods. But if the husband administers them from the express or tacit mandate of the wife and receives the fruits, he must restore only the fruits which then exist when the woman asks, or dies; but he must restore all the fruits which he received if the condition was added to the mandate that he render accounts of the fruits, or if the woman opposed herself at least by an extrajudicial act. C. I. 1427 seqq.; C. G. 1576 seqq. But from C. H. 1384, 1389 seqq., if paraphernal goods are handed over by the wife to the husband to be administered, they are then equated with dotal goods, whose dominion remains in the hands of the wife. From C. A. 1238, 1239, unless the wife opposes herself, by presumption of law the administration of the wife's free patrimony is judged to have been entrusted to the husband as legitimate procurator. But he is responsible only for the substance of the thing, or for the capital; he is not bound to give an account of the fruits received, unless this was expressly agreed.

To paraphernal goods belong, and they are the wife's, those goods which, during marriage, she acquires from her own goods, or from singular industry, or from her own extraordinary labor, especially if she exercises commerce in her own name, or also by subtracting something from what has been conceded to her for food, clothing, recreation, etc.; and also those things which were given to her with the express condition that they not fall to the husband. C. A. 1237; L. l. 3, n. 541.

As to the goods of the husband. The wife has no dominion over the goods of the husband. But since the wife is the companion of the husband, and the husband must feed the wife according to her condition, the wife can by her own right take for herself those things which are necessary to her for this reason. Lugo, de Iust. et Iur., d. 16, n. 72; Lessius, de Iust. et Iur., l. 2, c. 12, n. 85. And if by received custom of the region it is accepted that the wife spend something from the goods of the husband, she can also do this. Lugo, l. c. Therefore the wife can take not only those things which are necessary for the body, but also those things which pertain to relieving the mind and to the decency of her state. Lugo, l. c., nn. 68, 70. Nor indeed can she do this for herself only, but also for the children received from that marriage, for the utility of the family, or for removing some harm to it, and this even against the will of the husband. Therefore she can withdraw things from a prodigal husband in order to reserve them for the family in the future, or from an avaricious husband for making moderate alms. Lugo, l. c., n. 65; Lessius, l. c., n. 85. From the very nature of conjugal society the wife has administration of domestic things, the pantry, furniture, etc. C. He. 163; Lugo, l. c., n. 65; Lessius, l. c., n. 85. From C. I. 1432, if the wife administered the goods of the husband, she is subject to the same law to which he himself is subject in the administration of the wife's paraphernal goods.

But when the husband is absent or insane, the wife administers his goods, and she can spend them, according to the strength of the patrimony, for the sustenance and preservation of the dignity of the family, although perhaps the husband, if he were present or in control of himself, would not have spent them. From C. H. 1442, 1444, the wife administering all the goods of the marriage has the same faculties and obligations as when the husband administers them. Yet she cannot alienate or burden immovables. Lugo, l. c., nn. 16, 70; Lessius, nn. 12, 86; L. 541.

As to common goods. From C. I. 1433, 1435, 1436, 1438, 1439, 1441, in the marriage contract itself, although a dowry has been constituted, the spouses can enter together into a universal society, not indeed of goods, but of fruits coming from the goods themselves, whether movable or immovable, whether present or future. Yet this society cannot comprehend debts and credits existing before marriage, nor those which are later deferred by title of succession or donation while the communion itself lasts. The effect of this communion is to render common and divisible those things which are acquired by the spouses together or separately during the communion, whether by common industry, or by thrift made upon the fruits or incomes of the spouses, the debts of the communion itself always being deducted. Goods placed in common are administered by the husband, who cannot alienate them or subject them to mortgage except by onerous title, and if he leases them, he must observe the laws established for leasing which is done by a usufructuary. But the society ceases by the death of either spouse, by the declared absence of one, by definitive separation of persons, and by judicial separation of goods.

From C. H., when a contract concerning goods is lacking, by which they can also establish separation of goods between themselves, the marriage is judged to have been entered under the regime of legal society of gains, 1315, 1432. But if this society is excluded, without the rules by which the goods are governed being expressed, then the dotal regime is observed, and nevertheless the husband receives all the fruits of the society of gains just as if it existed, 1364.

Now by society of gains husband and wife make their own, by half, when the marriage has been dissolved, the gains and benefits indistinctly obtained by either spouse during marriage, 1392. By the law itself the proper goods of each spouse and the common gains are determined, 1396 seqq., 1401 seqq., and also the burdens and obligations of this society, 1408 seqq. The husband administers the society according to the established laws, 1412 seqq.; he can make moderate donations for the sake of piety and beneficence, but cannot reserve usufruct for himself, 1415.

The society is dissolved by dissolution of marriage, by the absence of either spouse, by separation of persons or goods, 1417, 1433. When the society has been dissolved, after an inventory has been made, and dotal and paraphernal goods have been restored, and the other burdens of the society have been satisfied, what remains is divided equally between husband and wife, or their respective heirs, 1418 seqq. Cf. ibid. 1435, 1436.

From C. G. 1393, even if spouses do not establish that certain goods will be common, nevertheless if any other pact is lacking, legal Community has place by force of law. For the pacts which can be entered by spouses before marriage constitute three classes, or a threefold regime, namely the dotal regime, concerning which we have already spoken, the regime of community, and the regime excluding community. Moreover, Community is either legal or conventional, according as it is constituted by law or by a special pact of the contracting parties. 1391, 1400 seqq., 1497 seqq., 1540 seqq. Legal Community coalesces: 1. from all movable goods which the spouses possessed on the very day of the marriage entered, or which afterwards come to them by title of succession or donation; 2. from all fruits and any revenues whatever of immovable goods possessed by the spouses before marriage, or coming to them during marriage; 3. from all immovable goods which were acquired from common goods during the time of marriage. Conventional Community consists in other pacts of the spouses, by which legal statutes can be restricted or relaxed. When these are lacking, the community is governed by the disposition of the law alone.

Under the regime of community the husband alone has administration of common goods. Indeed he can sell them, exchange them, and hand them over into mortgage, even without the consent of the wife. Yet he cannot donate immovables by gratuitous title, nor movables by universal title, or as to their universality or quota, that is, a half, third, or fourth part. He can dispose of some movable thing by gratuitous title, provided he does not reserve usufruct for himself. But when the community has been dissolved, goods and burdens are divided into two parts, unless the wife or her heirs prefer to renounce the goods, and thus to exempt themselves from the burdens. Debts are to be paid by each spouse, or by their heirs. The husband also has administration of the proper or personal goods of the wife. 1400, 1401, 1409, 1422, 1428, 1441, 1453, 1467 seqq., 1497 seqq.

A regime excluding community can be constituted by the spouses in two ways, namely: 1. by declaring that they enter marriage without community; 2. by establishing that each will be altogether separate as to goods. In the former case the man receives all revenues of the wife's goods and alone administers all things. But if they are consumed by use, he is bound to return their value. But in the latter case the woman has administration and usufruct of all her own goods. Each spouse concurs for the burdens of marriage by special pact; but if no agreement exists, the wife must concur up to a third part of her revenues. Therefore in this third regime, as also in the second, some dowry must be contributed by the wife, by which she may in part aid the burdens of marriage; but a dowry of this sort can be alienated by the husband. 1530 seqq., 1536 seqq. Cf. here 868, 1237.

From C. A. 1233, 1234. For communion of goods between spouses a special contract is required. But it is understood only for the case of death, and gives to the spouse a right to the half part of the goods constituted in communion which remain after the death of the other spouse. Cf. art. 1262, 1266.

From C. B. the regime of goods is twofold, legal and conventional. Legal matrimonial regime of goods. By the marriage contract the goods of the wife, even those which she herself acquires during marriage, are administered by the husband, who has their usufruct, but must sustain the expenses of marriage. The goods reserved to the wife are excepted, whether by law, namely clothes, precious gems, and instruments of labor, and goods acquired by labor or the personal exercise of a gainful profession; or by contract, namely those which were declared such by the marriage contract; by succession, legacy, or donation made with that reservation. The wife has administration and usufruct of these reserved goods. When administration and usufruct of the husband have ceased, the husband is bound to restore the goods to the wife and also to render an account of administration. But the wife can demand this cessation if her goods are placed in danger. C. B. 1363 seqq.

Conventional regime of matrimonial goods. Spouses can establish an agreement concerning goods both before marriage and after marriage has been contracted, and they can dissolve or modify the regime of goods. If by the marriage contract the administration and usufruct of the husband is excluded, or if the community of goods is dissolved, then separation of goods is had. But community can be either universal of goods, or particular, or particular of acquisitions, or particular of movables and acquisitions. The husband administers the community and sustains the burdens of marriage from the goods of the community. When the community has been dissolved, the debts having first been paid, those things which remain are divided into two equal parts between the two spouses, or the descendants of either and the widowed spouse. C. B. 1432 seqq.

Besides these things, which are constituted by various laws, all those pacts must be observed both by the husband and by the wife which in the marriage contract either were tacitly entered, according to the proper laws of the region, or expressly constituted by private will, provided however that these agreed pacts do not oppose good morals or the laws. C. I. 1378; C. A. 1217; C. G. 1387; C. H. 1315.

From C. L. It is licit for spouses before marriage to make a contract concerning goods, within the limits of the law, 1096. Agreements of this sort will not be valid unless they have been made by public writing, 1097. If no agreement is made, the marriage is judged to have been contracted according to the custom of the kingdom, 1098. A woman can reserve to herself the right of receiving part of the fruits of her goods, provided it does not exceed a third part, 1104. An agreement can be made of marriage according to the custom of the kingdom, of community of acquisitions, of separation of goods, of the dotal regime, 1099 seqq. Agreement according to the custom of the kingdom imports community of all present and future goods not excepted by law, 1108 seqq. Dominion and possession of these goods is with each spouse; administration is in the hands of the husband, 1117 seqq. When the Community has ended, its goods are divided between the spouses and their heirs, due equality being observed. But satisfaction must be made first to the woman, then to the man, 1123, 1124. Agreement of community of acquisitions does not comprehend goods which are had at the time of marriage, or which afterwards are had by succession or another gratuitous title, 1130 seqq. Agreement of separation of goods does not exclude from community goods acquired without express declaration, 1125. Each spouse preserves dominion of his or her own goods, and their free disposition, with however that restriction for the woman which is made by law, 1127, 1128. Under the dotal regime the husband can alienate movable goods, but is bound concerning their value, 1148. Immovable goods are inalienable except for cases permitted by law, 1149 seqq., nor can they be prescribed during marriage, 1152. When the marriage has been dissolved, dotal goods must be restored to the woman and her heirs, 1156 seqq.

C. He. has the regime of union of goods, communion of goods, and separation of goods. Unless otherwise disposed, spouses are subject to the regime of union, 178. By union of goods all goods which the spouses possess at the moment of the celebration of marriage, or acquire during marriage, are joined into one sole conjugal substance, 194. The part of this conjugal substance brought by the wife remains her property. The husband is owner of the goods which he himself brought, and of any conjugal substance which was not brought by the wife. The wife's revenues and natural fruits of goods brought by her are the property of the husband from the moment when they are owed or separated, 195. The husband administers the conjugal substance, uses and enjoys it as a usufructuary, 200, 201. When the wife has died, the goods brought by her pass to her heirs. When the husband has died, the wife recovers the goods brought by her. If, after separation has been made, an increase is had, two thirds of this pertain to the wife and her descendants, the third part to the husband and his heirs. If on the contrary diminution is had, it is to be sustained by the husband and his heirs unless it is proved to have been caused by the wife. And, if on account of debts made by the husband the wife would obtain less than half of the goods brought by her, her credit for completing this half part is privileged. The cession of this privilege in favor of individual creditors is null, 211 seqq.

By communion of goods all goods and revenues of husband and wife are joined into one undivided substance, which pertains to each. The husband administers it. By the death of either spouse, half part of the common substance pertains to the surviving spouse, the other half part to the heirs of the deceased. Increase is divided into two equal parts between the spouses or their heirs. Diminution must be sustained by the husband or by his heirs, unless it is proved to have been caused by the wife. 215, 216, 225, 240.

Separation of goods regards the whole substance of each spouse. Each preserves ownership, administration, and usufruct of his or her own substance. But the wife is bound to contribute, in an equitable portion, to the burdens of marriage, even with reserved goods. 192, 241, 242, 246. Goods are reserved either by matrimonial contract, or by the liberality of third parties, or by law. Reserved by law are those things which personally and exclusively pertain to either spouse; goods of the wife which serve her for the exercise of her profession or art; and the gain which the wife receives by laboring in her own name. Reserved goods of the wife are not comprehended in the union of goods. 190, 191, 194.

What is usufruct? - Usufruct is: The right of using and enjoying another's thing, by receiving fruits from it in that very mode by which the proprietor himself would receive them, while nevertheless its substance is preserved, both as to matter and also as to form, as in use. C. I. 447; C. G. 578; C. H. 467; C. A. 509; C. B. 1030; C. He. 745; C. L. 2197, 2202; L. 487.

It differs from use in this, that it extends more broadly; for simply to use is to receive only necessary fruits, but to enjoy is to receive them as the proprietor himself would receive them. Thus, for example, if someone has the use of some garden, he can indeed take fruits from it for himself and his own, but he cannot alienate them and bestow them on outsiders; but he can do so if he has usufruct of the same. Those words, "of using and enjoying," are not added in vain; for usufruct, insofar as it regards a fruitful thing, is the right of using; but insofar as it regards the fruits, it is the right of enjoying, or of receiving fruits from it. And thus, if the revenues of some estate are bequeathed, it is not judged to be a usufruct, but a legacy of revenues, which is a personal burden, not a burden of the estate. And therefore it is said, "the right of using and enjoying another's thing, by receiving fruits from it," etc. Hence it is a real right constituted in the thing, and thus it differs from lease. "Another's thing," because usufruct is a servitude. The owner uses his thing by right of property. The one to whom usufruct belongs is called the fructuary. Inst. 1. 2. t. 4. section 1.

How many kinds of usufruct are there? - There is a threefold division of usufruct. The first is into proper and improper usufruct. The former is constituted in things which are by no means consumed by use, such as, for example, a house and a garden; the latter, however, is constituted in fungible things, as they are called, namely those which are consumed by use, such as linens and household furnishings. Improper usufruct is also called quasi-usufruct. C. I. 483, 484; C. G. 587, 589; C. H. 481, 482; C. A. 510; C. B. 1031, 1032, 1067.

The second division is into singular usufruct, that is, of certain things in species; particular usufruct, that is, of some part of goods; and universal usufruct, in which all goods are contained. C. G. 612; C. H. 469; C. B. 1038.

Finally, the third division is into usufruct of things and of rights, as, for example, usufruct of a life annuity, which brings a right of receiving even past and unreceived fruits. Thus from C. G. 588. Cf. C. I. 482; C. H. 469; C. A. 510; C. B. 1068 ff., 1085 ff.; C. He. 745; Inst. 1. 2. t. 4. section 2.

What are the rights of the usufructuary? - These in general are, apart from a special agreement:

1. Since the usufructuary is judged to act as the person of the proprietor with respect to useful ownership, his first right is that he can receive all fruits, whether natural, industrial, or civil, and make them his own, whether he has collected them by himself or through others. But they are understood to have been collected when they have been separated from the soil or from the thing. Hence, if the fructuary dies, fruits indeed mature but not yet separated from the soil or the thing do not belong to the heir of the fructuary, but to the proprietor of the thing, without the burden of paying for cultivation or seed, etc.; for fruits, as long as they adhere to the farm, are judged one with it. But if that heir, when the fructuary is already near death, has collected immature fruits, he is bound to restore them to the proprietor; for just as the fructuary could not collect immature fruits, so much less can his heir. On the contrary, the usufructuary receives natural and industrial fruits pending at the beginning, also without the burden of paying for cultivation or seed, etc. But civil fruits are acquired day by day, and therefore must be divided according to the proportion of the time during which the usufruct lasted. Inst. 1. 2. t. 1. section 36; C. I. 477, 479, 480, 481, 494, 496; C. G. 578, 582, 585, 586, 588, 598, 600; C. H. 471, 472, 474, 475; C. A. 509, 511. Cf. ib. art. 519; C. H. 472, 476, 477; C. B. 1039; C. He. 755, 756, 757; C. L. 2203 ff., 2252, 2253, 495.

2. In addition, he has a right to all those things without which usufruct cannot be had; therefore he has right of way to the usufructuary thing through the hereditary farm, if access does not lie open from elsewhere; likewise the right of using all servitudes adhering to the farm, because they are held as qualities of the farm itself; likewise he has a right to opened mines and to the individual instruments of the farm, unless the contrary will of the testator appears; for it is not to be presumed that the testator wished the fructuary to furnish instruments for himself for a farm which he is to use only for a time. C. I. 494; C. G. 597, 598; C. A. 511; C. H. 479. Cf. ib. arts. 476, 477; C. B. 1031; C. L. 2206, 2213, 2287.

3. Besides, he has the right that he can sell, donate, lease, lend, and subject to mortgage the fruits and the usufructuary things, and grant them to another to enjoy; indeed even hand them over as a pledge. For one who enjoys through another is seen to enjoy by himself. C. I. 492, 493, 1967; C. G. 595, 2118; C. H. 480; C. He. 758; C. B. 1059; Inst. 1. 2. t. 1. sections 36-38, t. 4. section 1.

4. As the usufructuary is not bound to make improvements, so he has no right to compensation for improvements made. For he is judged to have donated them. Nevertheless, he will be able to compensate an increase of price with losses, if any followed without grave fault of the fructuary. If this compensation cannot have place, it is lawful for the fructuary and his heirs to retake additions made, if they can be removed without detriment to the farm and with the utility of the fructuary, and the proprietor does not prefer to retain the additions made for himself after paying their valuation. But it will always be lawful for the fructuary and his heirs to recover mirrors, painted panels, and other ornaments, provided all things are restored to their former condition. C. I. 495; C. G. 599; C. H. 487, 488; C. He. 753; C. L. 2217, 2220. Cf. C. A. 514-517.

What are the obligations of the fructuary? - These in general are, apart from a special agreement:

1. The burden falls upon the fructuary both of furnishing custody and of undergoing ordinary expenses, so that the thing may be preserved in its whole condition, and also of making expenditures so that he may receive natural fruits from it. He is also bound to pay the ordinary burdens by which the usufructuary thing is burdened, such as salaries, annual taxes, and similar things. He is likewise bound to notify the owner if anything happens which may harm his property. C. I. 477, 501, 504, 506, 509, 511; C. G. 605, 606, 608, 614; C. H. 500-502, 504, 505; C. A. 512, 513; C. B. 1036, 1037, 1041 ff.; C. He. 764, 765, 767, 769; C. L. 2228, 229, 2238, 2240.

2. The fructuary must use another's thing as a good father of a family, and must 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 becomes worse, because he suffers him to enjoy. C. I. 495, 497; C. G. 599, 601; C. H. 489, 497, 503; C. A. 513; C. B. 1051 ff.; C. He. 755, 759, 768; C. L. 2223, 2227.

3. The usufructuary thing must be restored to the owner, when the usufruct has ended, such as it was with respect to its substance when it began. C. I. 477; C. He. 751 ff. Therefore security must be given, and the condition of immovables and an inventory of movables must be made. C. I. 496, 497; C. G. 600, 601; C. H. 491; C. B. 1034 f., 1048, 1049. From C. I. 1922 either security or pledge can be given. Cf. C. G. 2041; C. He. 760 ff. But security is not to be given by a father or mother in legal usufruct, nor by one who sold or donated the thing while reserving usufruct to himself. C. I. 497; C. G. 601; C. H. 492. Nor indeed is security to be given, nor an inventory to be made, if the one who constitutes the usufruct remits all these things. C. I. 496, 497; C. H. 493. C. I. 483, 484; C. H. 481, 482; C. G. 587, 589; C. A. 518, 520; C. B. 1034, 1035, 1050, 1055; C. L. 2221, 2224.

4. Things which are consumed by use are to be restored according to their valuation made, or otherwise in the same quantity and quality, or at the current price, when the usufruct ceases. But things which deteriorate by use are restored in the condition in which they are when the usufruct ceases. C. I. 483, 484; C. G. 587, 589; C. B. 1050, 1067; C. He. 772; C. L. 2208, 2209.

From Roman Law: The usufructuary of a field has a right to hay, crops, willows, and trees to be cut, but not to large and fruit-bearing trees, to stakes, to stones, or to sand. In place of trees that have died, he is bound to substitute others, and the former belong to the fructuary; nevertheless he by no means ought to substitute trees overthrown by the force of a storm without fault on his part. And if there are bees, their usufruct also belongs to him. L. 9, 11, 18, 59 de Usufr. etc. From C. G. 594; C. I. 490: fruit-bearing trees which perish, or which are overturned by some accidental event, belong to the usufructuary with the burden of substitution. Cf. C. H. 483-485.

Usufruct of a forest. "The fructuary can cut a coppice wood and a reed-bed, as the father of a family was cutting, and sell them, even if the father of a family was not accustomed to sell but to use them himself; for it must be referred to the mode, not to the quality, of using." L. 9. section 7. de Usufructu et quemadmodum, etc. Cf. C. G. 590, 591; C. I. 485, 486; C. He. 770; C. L. 2211. "But if there were large trees, he cannot cut them." L. 11. de Usufructu, etc. Cf. C. G. 590, 592; C. I. 487, 579. "Labeo says that, when trees have been torn up or thrown down by the force of winds, the usufructuary can take them up to the measure of his own use and of the villa... He thinks that the usufructuary can cut timber as much as is necessary for the repair of the villa; just as, he says, he can burn lime or dig sand or take anything else necessary for the building." L. 12. de Usufructu, etc. Cf. C. G. 592, 593; C. I. 488, 489; C. A. 511; C. L. 2210, 2213, 2226. "I think that the fruit of a nursery belongs to the fructuary, yet in such a way that it is lawful for him to sell and to sow; nevertheless, for the sake of sowing the field, he must always renew the prepared nursery as an instrument of the field, so that, when the usufruct has ended, it may be restored to the owner." L. 9. section 6. de Usufructu, etc. Cf. C. G. 590; C. I. 485, 491; C. H. 485; C. L. 2112.

The usufructuary of a flock has a right to wool, milk, and offspring. Inst. 1. 2. t. 1. section 37, t. 5. section 4. But he is bound to substitute other heads from the offspring in place of heads that have died, unless he has the usufruct of the individual heads separately, not of all the heads collectively, or of the flock, herd, or drove, that is, of the universality. L. 68. section 2, 69, 70. section 3. de Usufructu, etc. Cf. C. G. 615, 616; C. I. 512, 513; C. H. 499; C. L. 2225.

How is usufruct acquired? - Usufruct 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 his wife. 2. From agreement or contract, and therefore it is called conventional, for example by force of donation or testament. 3. By prescription. In its acquisition, the formalities of the various laws must be observed. C. He. 746.

C. I. 478, 901, 2137; C. H. 468; C. B. 1032, 1033.

How does usufruct cease? - "Lest properties be useless in general, when the usufruct has always departed, it has pleased the law that usufruct be extinguished in certain ways and return to the proprietor." Inst. 1. 2. t. 4. section 1; C. L. 2251.

Moreover, usufruct ceases: 1. By the natural or civil death of the fructuary; for since both use and usufruct are personal rights, they ought to be extinguished by the death of the one to whom they belong. Hence usufruct, that is, the stable right itself of using and enjoying, neither passes to heirs nor can even be sold without the consent of the direct owner. C. I. 515; C. G. 617; C. H. 498, 513; C. B. 1059, 1061; C. L. 2250. A usufruct granted to a community or moral body is extinguished after the space of 30 years, C. I. 518; C. G. 619; C. H. 515; C. L. 2244; of 100 years, C. He. 749.

2. When the time has ended, if any has been established by law or constituted by agreement. C. I. 515, 517; C. G. 617, 620; C. H. 513, 516; C. A. 528; C. He. 748; C. L. 2245.

3. By every manner of change, for example if a meadow becomes a pond, or by the total destruction of the thing, if, for example, the whole building is demolished. Total destruction; for if the thing perishes only partially, usufruct is sustained in that which remains. C. I. 515, 519, 520; C. G. 617-624; C. H. 513, 514, 517. Cf. C. A. 525; C. He. 748; C. L. 2243, 2246.

4. Likewise, usufruct is extinguished when the right of the one ceding the usufruct has been resolved. For example, if Titius sells a house to Caius under a pact of redemption, and meanwhile Caius grants its usufruct to Sempronius, once the house has been redeemed by Titius, the usufruct also ceases.

5. By consolidation, namely when the fructuary obtains the property and ownership of the thing itself, or when the owner also acquires the usufruct. C. I. 515; C. G. 617; C. H. 513; C. B. 1063.

6. By renunciation of the fructuary, provided it is not done in fraud of creditors. C. H. 513.

7. By abuse, by which the thing is made worse through the fault of the fructuary. But the sentence of a judge is necessary. C. I. 516; C. G. 618. Otherwise, however, from C. L. 2249, and from C. H. 520, 529, which establishes a distinction between usufruct and use, which is extinguished by grave abuse of the thing.

8. By prescription, namely if the fructuary does not use his right for so much time that the usufructuary thing can be usucapted by another; 30 years are required so that the owner can prescribe against the fructuary. C. I. 515; C. G. 617; C. H. 513; C. L. 2241; Inst. 1. 2. t. 4. section 3; C. G. 621, 622.

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.

124. Notion. When direct dominion of some thing remains in the possession of one person, while another can use and enjoy it, this latter has usufruct, which is defined: a real right of enjoying things of another, with their substance preserved.

It is called: (a) real, i.e., attached to the thing itself, so that it may be distinguished from the right of a lessee or tenant-farmer, which is personal, inasmuch as the lessor is personally bound toward the lessee; while in usufruct, the obligation is bound to the estate or thing itself; (b) of enjoying, i.e., not only of using the thing, but also of receiving its fruits, just as if the usufructuary were the owner; (c) with their substance preserved; for since the right of disposing remains in the possession of the owner, the usufructuary cannot alienate the thing, or consume it, or transform it into another form, even a better one, but must preserve it entire for the owner.

125. Usufruct arises either from law, which is diverse for diverse Nations,¹ or from man, whether by testament, or by an act between the living, or by prescription.² - It ceases by the death of the usufructuary, by the destruction of the thing subject to usufruct, or by the lapse of the appointed time.

¹ For France, cf. Civil Code, a. 384 and 754; Planiol, n. 1565-1589.

² Civil Code, a. 579; Planiol, n. 1574-1589.

126. Rights and duties of the usufructuary. (a) Rights: 1) He has the right of receiving all fruits: natural, which are produced without special industry; industrial, which are acquired especially by labor; civil, which are owed by force of a contract or of some obligation, as the price of leasing, rent, interest for loaned money, etc. Under the name of fruits do not come treasures found in an estate, nor mines which, at the time when the usufruct began, were not yet being worked; but only those things which grow and are received at certain times. - For the rest, let the civil laws be consulted.³

³ Civil Code, a. 582-599; Planiol, n. 1614-1662; Supplement, p. 10*.

2. He can also lease or give his right to another: for he can enjoy either through himself or through another.

127. (b) Duties: He ought to enjoy as a good father of a family; 1) hence generally by civil law he is bound at the beginning to describe the goods whose usufruct he enjoys, with the owner present or at least summoned, so that he can render them such as they substantially were. Likewise he ought to be watchful lest the thing become worse.

2. He is bound to moderate repairs (reparations d'entretien), which are required so that the thing may be preserved entire; but not to greater repairs (grosses reparations), which, if they are made, must be paid by the owner himself.

3. He ought to pay annual burdens which are judged burdens of the fruits, such as taxes, real rent, expenses of a lawsuit in which there is question of usufruct.⁴

⁴ For France, cf. Civil Code, a. 600-616; Planiol, n. 1663-1682.

128. Duties of the owner.⁵ (a) He suffers the usufructuary to enjoy, i.e., he ought to do nothing by which the enjoyment of the usufructuary is diminished or extinguished. Upon him indeed lies the care of greater repairs, but he cannot be compelled to make them. He pays the expenses of a lawsuit when there is question of dominion over the thing.

⁵ For France, cf. Planiol, n. 1683-1695.

(b) He does not furnish enjoyment, i.e., he is not personally obliged toward the usufructuary; he ought to hand over the thing in the state in which it is found, but he is not bound to render it better.

161. Usufruct (usufruit; vruchtgebruik of -genot, vruchtverbruikingsrecht) is the real right of using and enjoying another's thing like its proper owner, its substance being preserved³ (C.C., a. 578). It is said:

³ The Italian Code treats of usufruct, a. 477 sq.; Spanish, a. 467 sq.; Dutch, a. 803 sq.; Austrian, a. 509 sq.; German, a. 1030 sq.

a) real, i.e., attached to the thing itself, so that it may be distinguished from the right of a tenant or farmer, which is personal, insofar as the lessor is personally bound toward the tenant, while in usufruct the obligation is bound to the estate itself or to the thing. Hence 1) the usufructuary can renounce his right, the tenant cannot; 2) the usufructuary has against the owner a right in the thing, that he not be impeded; the tenant has a right to the thing, that enjoyment of the thing be procured for him;

b) of enjoying, i.e., not only of using but also of receiving its fruits, just as if the usufructuary were owner;

c) its substance being preserved: for since the right of disposing remains with the owner, the usufructuary cannot alienate or consume the thing, or transmute it into another form, even a better one, but must preserve it whole for the owner.

A. Usufruct arises either from law (which is diverse for diverse peoples), and then it is called legal, such as the usufruct of a father or mother in the goods of children, of a husband in certain goods of the wife, of a beneficiary in ecclesiastical goods; - or from the will of man, whether by testament, or by act among the living, as by donation or sale, or even by prescription, and then it is called constitutional (a. 579). But it can be constituted in three ways: either purely, or for a day, or under condition (a. 580); and indeed in all things, whether movable or immovable (a. 581).

B. The usufructuary has the rights of an owner, the substance of the thing being preserved; hence:

1st. He can, without any recompense, receive all the fruits of the thing, whether natural, which are produced without special industry, or industrial, which are acquired especially by labor, or civil, which are owed by force of a contract or some obligation, such as the price of leasing, rent, interest for money lent, servitudes, and other rights which the owner can enjoy.⁴ And indeed natural or industrial fruits are acquired by perception or separation, but civil fruits are judged to be acquired from day to day. Whence a) at the beginning the usufructuary makes his own all natural and industrial fruits still pending, and civil fruits which are owed from the day the usufruct began; but he has no right to fruits already separated from the land or thing, nor to civil fruits already owed but not yet received. On the contrary b) when the usufruct is completed, he or his heir can take fruits already mature and separated, but not immature fruits and those collected too soon, nor mature fruits still pending; but civil fruits owed up to this day, even if not yet paid (a. 582 sq. and 597).⁵

⁴ In German law, natural and industrial fruits are called fruits of the thing, but civil fruits, fruits of right.

⁵ In Spanish law (a. 452) and Portuguese law (a. 495), the owner can take all fruits still pending; otherwise he is bound to pay expenses made for cultivation and to divide with the possessor both the production and the remaining burdens, according to the proportion of the time of possession.

Yet by our law a) in a usufruct comprising things which are consumed by first use, while he consumes them, he is bound, when the usufruct has ended, to restore their entire value (a. 587); b) under the name of fruits there do not come treasures found in the land, nor new mines or mines to be opened which, at the time when the usufruct began, were not yet being worked (a. 598), but only those things which are drawn from already existing mines or which grow and are received at certain times (a. 598 and 591).

2nd. He can also sell, lease, or donate his right to another, provided nothing is changed in the condition of the owner, whether as to the perception of fruits, or as to the extinction of the usufruct: for he can enjoy either by himself or through another (a. 595).

C. As to the duties or obligations of the usufructuary, he must not abuse, but use the thing and enjoy it as a good father of a family, and take care that it does not perish, become changed for the worse, or be burdened with undue servitudes by his own deed or that of others, and this under penalty of repairing the damage inflicted upon the owner; hence:

1. When the usufruct begins, he must, in the presence of the owner or at least after the owner has been summoned, duly make an inventory in which are described all the goods of which he has the use and fruit; moreover, he is bound to provide surety, unless dispensation is made by law or by him who grants the use and fruit (a. 600-601).

2. During the usufruct, he must a) watch lest the thing be usurped or become worse; yet if it becomes worse by legitimate use, he returns it in the state in which it is found: the thing deteriorates for the owner (a. 589); b) make moderate repairs and conserving expenses, but not major repairs (a. 605-606); c) pay annual charges or periodically imposed charges which touch the enjoyment itself, such as taxes, real rent, wages of servants, expenses of litigation in which the usufruct is at issue (a. 608 and 613).

3. When the usufruct ceases, he must restore the thing in the state in which it ought to be found after good administration, and indeed with the fruits not yet collected (a. 585 and 590), with no compensation to be demanded from the proprietor, even if the land has become better from the usufruct (a. 599).

D. On the contrary, the duties of the owner are:

a) He suffers enjoyment, i.e., he must do nothing by which the enjoyment of the usufructuary is diminished or extinguished. To him indeed belongs the care of major repairs (a. 605), but he cannot be compelled to make them (a. 607). He pays the expenses of litigation when the dominion of the thing is at issue.

b) He does not furnish enjoyment, i.e., he is not personally obligated toward the usufructuary; he must leave the thing in the state in which it is found, but he is not bound to make it better.

E. Usufruct ceases: 1st. by the death of the usufructuary (a. 617), unless it was constituted until a third person should reach a determinate age; in which case it endures until the appointed time, even if the third person has died before then (a. 620);

2nd. when the appointed time has elapsed (a. 617), and when thirty years have elapsed if it was constituted in favor of a community (a. 619);

3rd. by consolidation, by which the usufructuary at the same time becomes owner of the thing, or conversely (a. 617);

4th. by prescription, i.e., by non-use of the thing for 30 years (a. 617);

5th. by the total destruction of the thing subject to usufruct (a. 617 and 623);

6th. by abuse of the thing, yet with the sentence of a judge intervening (a. 618);

7th. by the legitimate renunciation of the usufructuary, provided it is not done in fraud of creditors (a. 622);

8th. also by the dissolution of the right of him who constituted the usufruct, since, the right of the giver being resolved, the right of the receiver is resolved; unless, however, the law has determined otherwise (a. 132-133).

164. Observations. - 1st. In the aforesaid definitions the discussion is about the substance of a thing. Here this is taken juridically for that form and figure by which the thing has a certain utility and name; for example, it is a meadow rather than a field or vineyard, or it is a house of such an external form or of such an internal order of parts. Whence the usufructuary cannot change the external form of a house, or the general internal order of its parts.

2nd. Other real rights are acknowledged in law, namely, privilege (voorrecht), mortgage (grondpand), and pledge (pandrecht). Moreover, emphyteusis and the right of superficies approach the nature of usufruct, which they extend.

These two in Belgium are governed by the law of Jan. 10, 1824. Emphyteusis (erfpacht) is a real and temporary right of having the full enjoyment of another's immovable thing on this condition, that an annual payment be paid to the owner in recognition of dominion.

Therefore it is never granted by gratuitous title, while usufruct can be given gratuitously; but it can pass to heirs, while usufruct is extinguished by the death of the usufructuary.⁹

⁹ Emphyteusis is acknowledged by Austrian law (a. 1122), Italian (a. 1556), German in certain States, Dutch (a. 767); also by French law, but from the law of June 25, 1902. In France it can be granted at minimum for 18 years, at maximum for 99 years; by Dutch law for a time of 75 or 100 years, even in perpetuity; likewise by Italian law it can be established in perpetuity, but then it is redeemable. In Belgium: at minimum for 27, at maximum for 99 years.

The right of superficies (recht van opstal) is the real temporary right of having buildings, works, or plantations on another's land.¹⁰

¹⁰ In Belgium it can be granted for 50 years. It is also acknowledged by German law (a. 1012-1027), and Dutch law (a. 758 sq.); French or Italian law has nothing explicit.

3rd. To the aforesaid things possession itself is not to be added, which is not right and dominion, but as it were a sign of dominion. It is the detention of a thing not prohibited to be possessed, with the intention of having it as one's own. Formerly there was distinguished: possession of right, i.e., the real right of possessing or detaining a thing not prohibited; and possession of fact, or the act of possessing, namely, detention of a thing by the help of intention (the will of possessing), body (the external act), and right (the law permitting possession). But in modern law, possession is not a right but the mere fact of detaining a thing under one's power, whether justly or unjustly; whence by itself alone it is not a mode or title of acquiring right.

4th. For determining the rights of men, and consequently in treating the whole matter of justice, one must attend both to natural and divine law, and also to positive human law, and by name to the Civil Code. The power of the civil legislator to make laws which determine or explain the right of property, enjoyment, or use is certain. For just as the natural law which indeterminately commands that God must be worshiped ought to be determined by the Church, which prescribes the mode, place, and time of divine worship and other circumstances to be observed; so the natural law which indeterminately establishes that right is to be attributed to each one and that justice is to be observed in operations toward another, needs the determination of civil law, which defines what in fact are the rights of each one and how justice is to be observed in concrete circumstances (I, n. 263).

But such civil law obliges also in conscience, provided a) it is just, and repugnant neither to natural law, nor also, in matters subject to the Church, to ecclesiastical law; b) it is not merely penal but preceptive, which is established either from the nature of the thing or from necessity (as is generally verified for laws which determine the mutual rights of citizens, or directly procure the common good), or from the tenor of the law or of the attached penalty, or from the common interpretation of good and God-fearing citizens (cf. tr. de Legibus, I, n. 287).

In France and Belgium one must stand by the Code which, established by Napoleon I, is commonly called French law, yet with attention to the special laws by which that code was afterward very much corrected or even increased.¹¹

¹¹ Hence the articles of law cited, unless otherwise noted, are those of the French Civil Code.

165. Corollary. - From the definition given it follows that usufruct and use properly do not belong to things consumable by the first act, such as bread, wine, oil, money, etc.; hence:

1st. In these things use properly so called, independent and irrevocable (usus iuris), cannot be separated from dominion: for he who has such complete use, for example, of drinking from a barrel of wine until it is emptied, seems to have nothing less than he who has dominion over it.

2nd. Yet dependent and revocable use (usus facti) can be separated, such use as these are judged to have:

a) those invited to a banquet, respectively to the foods proposed; for they cannot use those things which are placed on the table for any use whatever, but only for eating, and thus dependently upon the will of the one inviting, so that he would commit no injury if he removed the things that had been set out;

b) religious solemnly professed, in particular, as to food and clothing, dominion remaining with the community; - and the Friars Minor or Capuchin Friars Minor, both in common and in particular, as to all temporal things whose use is licit for them, so that the Order itself professes that it has dominion of no temporal things, but only simple use of fact, revocable at will, dominion remaining either with the donors or with the Apostolic See. Nevertheless he who took away their things would commit injustice by depriving them of the use of fact.

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.

V. QUESTION II. What are the fruits which a usufructuary may enjoy, and what ought he to furnish? ANSWER. Whatever bears fruit, and can be perceived from it, is comprehended under the name of fruit. The usufructuary does not acquire dominion of the fruits unless they be gathered: wherefore if he die before the gathering, they belong to the lord. The usufructuary, as a good father of a family, ought to preserve the substance of the thing. If any head of the flock die or be rendered useless, if the plants of the vineyards wither, he is bound to substitute other fruitful head or plants. If without his negligence the things, or parts of the things, perish, whether by frost, hail, or invasion, he is held to nothing. The usufructuary may, with the proprietary lord consenting, but not if he refuse, cede his right to another.