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Justinian I · The Digest of Justinian §7.1.38.pr

Preserving Usufruct through Use by Others and Sale

Passage 1209 of 9271 · Latin

Summary

This section explains that the use of a usufruct by another in the name of the usufructuary prevents its extinction through non-use, and notes a special rule regarding sale.

[MARCIANUS libro tertio institutionum. ] §7.1.38.prNon utitur usufructuarius, si nec ipse utatur nec nomine eius alius, puta qui emit uel qui conduxit uel cui donatus est uel qui negotium eius gerit.
[MARCIANUS, in the third book of Institutes.] A usufructuary does not use the usufruct if neither he himself uses it nor another in his name, such as one who has bought it, or who has hired it, or to whom it has been donated, or who manages his affairs.
plane illud interest, quod, si uendidero usum fructum, etiamsi emptor non utatur, uideor usum fructum retinere,
Clearly there is this difference, that if I sell the usufruct, even if the buyer does not use it, I am deemed to retain the usufruct,

Notes

  1. §7.1.38.prnomine eius — 'In his name,' meaning on behalf of the usufructuary. Even if the usufructuary does not use the property personally, use by those who obtained rights of use from him (buyer, lessee, donee) or a manager of his affairs (negotiorum gestor) is legally attributed to the usufructuary, preventing the loss of the usufruct through non-use (non usus).
  2. §7.1.38.prillud interest, quod — A construction where the impersonal verb 'interest' is accompanied by the demonstrative pronoun 'illud,' which is explained by the following 'quod' clause, meaning 'there is this difference, that...'. It introduces an exceptional fiction: although the previous sentence implies that the buyer's non-use generally means the usufructuary does not use it, in the case of a sale, the seller is deemed to retain the usufruct even if the buyer does not actually use it.

Cite this passage

Justinian I, The Digest of Justinian §7.1.38.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:7.1.38.pr

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