IV. Usufructus.
Usufructus is the right of using, and taking the fruits of things belonging to others, so long as the substance of the things used remains. It is a right over a corporeal thing, and if this thing perish, the usufructus itself necessarily perishes also.
1. The usufructio is detached from the property; and this separation takes place in many ways; for example, if the usufructus is given to anyone as a legacy; for the heir has then the bare ownership, and the legatee has the usufructus; conversely, if the estate is given as a legacy, subject to the deduction of the usufructus, the legatee has the bare ownership, and the heir has the usufructus. Again, the usufructus may be given as a legacy to one person, and the estate minus this usufructus may be given to another.
If any one wishes to constitute a usufructus otherwise than by testament, he must effect it by pacts and stipulations. But, lest the property should be rendered wholly profitless by the usufructus being forever detached, it has been thought right that there should be certain ways in which the usufructus should become extinguished, and revert to the property.
2. A usufructus may be constituted not only of lands and buildings, but also of slaves, of beasts of burden, and everything else except those which are consumed by being used, for they are susceptible of a usufructus neither by natural nor by civil law.
Among these things are wine, oil, garments, and we may almost say coined money; for it, too, is in a manner consumed by usus, as it continually passes from hand to hand. But the senate, thinking such a measure would be useful, has enacted that a usufructus even of these things may be constituted, if sufficient security be given to the heir; and, therefore, if the usufructus of money is given to a legatee, the money is considered to be given to him in complete ownership; but he has to give security to the heir for the repayment of an equal sum in the event of his death or his undergoing a capitis deminutio.
All other things, too, of the same kind are delivered to the legatee so as to become his property; but their value is estimated and security is given for the payment of the amount at which they are valued, in the event of the legatee dying or undergoing a capitis deminutio. The senate has not then, to speak strictly, created a usufructus of these things, for that was impossible, but, by requiring security, has established a right analogous to a usufructus.
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