- Source
- Digesta Iustiniani Augusti. Mommsen, Theodor & Krueger, Paul, editors. Berlin: Weidmann, 1870.
- Translation
- AI-generated (gemini-3.5-flash) — machine translation; may contain errors
- Languages
- 日本語 · English · 简体中文 · 한국어
- CTS URN
- urn:cts:latinLit:phi2806.phi002.humanitext-lat1:7.4.5.pr-7.4.5.3
- Generated
- Humanitext Reader · reader.humanitext.ai · 2026-11-13
Ulpian discusses the conditions for reclaiming a lost usufruct, the effects of alienating only a slave's usufruct, and the extinction of a usufruct due to the physical change of the property along with the owner's liability.
[ULPIANUS libro septimo decimo ad Sabinum.]
[ULPIANUS from the seventeenth book on Sabinus.]
Repeti potest legatus usus fructus amissus qualicumque ratione, dummodo non morte: nisi forte heredibus legauerit.1
A bequeathed usufruct that has been lost for any reason whatsoever can be claimed again, provided it was not by death; unless perhaps the testator bequeathed it to the heirs.
Si quis usum fructum solum serui alienauerit,2 per quem usus fructus ei adquisitus est, dubium non est, quin usus fructus per eum adquisitus retineatur.
If anyone has alienated only the usufruct of a slave through whom a usufruct was acquired for him, there is no doubt but that the usufruct acquired through him is retained.
Rei mutatione interire usum fructum placet: ueluti usus fructus mihi aedium legatus est, aedes corruerunt uel exustae sunt: sine dubio extinguitur. an et areae?3 certissimum est exustis aedibus nec areae nec cementorum usum fructum deberi. et ita et Iulianus.
It is accepted that a usufruct perishes by a change in the thing: for example, the usufruct of a house was bequeathed to me, and the house collapsed or was burned down: without doubt it is extinguished. Does this also apply to the site? It is most certain that when a house has been burned down, a usufruct is due neither of the site nor of the materials. And Julian also holds this.
Si areae sit usus fructus legatus et in ea aedificium sit positum, rem mutari et usum fructum extingui constat. plane si proprietarius hoc fecit, ex testamento uel de dolo tenebitur,4
If the usufruct of a site was bequeathed and a building has been erected on it, it is established that the thing is changed and the usufruct is extinguished. Clearly, if the owner did this, he will be held liable either under the will or for fraud.
- 7.4.5.prnisi forte heredibus legauerit
The subject of the perfect subjunctive legauerit is the original testator. heredibus means 'to the heirs of the usufructuary', referring to an exceptional case where the testator explicitly specified that the usufruct should also extend to the heirs of the legatee.
- 7.4.5.1usum fructum solum serui alienauerit
solum functions as an adverb ('only'), indicating a situation where the master has alienated 'only the usufruct' of the slave. In this case, since the ownership of the slave remains with the master, the usufruct of another thing acquired by the master through the activities of that slave (per quem usus fructus ei adquisitus est) is not lost but retained.
- 7.4.5.2an et areae?
A highly elliptical question, posing the query 'should [the usufruct] also [be due] for the site?' based on the preceding context. It is answered negatively by the following sentence nec areae... deberi.
- 7.4.5.3ex testamento uel de dolo tenebitur
This indicates the means of holding the owner (proprietarius) liable, who extinguished the usufruct of the site by erecting a building on it. The owner will be liable (tenebitur) to the legatee either ex testamento (by an action based on the testament) or de dolo (by an action based on fraud).