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Justinian I · The Digest of Justinian §7.2.3.pr-7.2.3.2

Right of Accrual in Usufruct and Conditions for Reversion

Passage 1248 of 9271 · Latin

Summary

Citing the opinions of Neratius, Celsus, and others, this chunk discusses the conditions under which the right of accrual applies to a usufruct, as well as the rules governing its reversion upon the transfer of ownership or after consolidation.

[ULPIANUS libro septimo decimo ad Sabinum. ] §7.2.3.prIdem Neratius putat cessare ius adcrescendi libro primo responsorum: cui sententiae congruit ratio Celsi dicentis totiens ius adcrescendi esse, quotiens in duobus, qui in solidum habuerunt, concursu diuisus est.
[ULPIANUS libro septimo decimo ad Sabinum.] The same Neratius, in the first book of his Responses, thinks that the right of accrual does not apply; with which opinion agrees the reasoning of Celsus, who says that the right of accrual takes place as often as a right which two persons held in its entirety is divided between them by competition.
§7.2.3.1Unde Celsus libro octauo decimo scribit, si duo fundi domini deducto usu fructu proprietatem tradiderint, uter eorum amiserit, usum fructum ad proprietatem redire, sed non ad totam, sed cuiusque usum fructum ei parti accedere, quam ipse tradiderit: ad eam enim partem redire debet, a qua initio diuisus est.
Hence Celsus writes in his eighteenth book that, if two owners of a tract of land have transferred the ownership reserving the usufruct, whichever of them loses the usufruct, it reverts to the ownership, yet not to the whole of it, but each one's usufruct accrues to that part which he himself transferred; for it ought to revert to that part from which it was originally separated.
§7.2.3.2Non solum autem si duobus usus fructus legetur, est ius adcrescendi, uerum et si alteri usus fructus, alteri fundus legatus est: nam amittente usum fructum altero, cui erat legatus, magis iure adcrescendi ad alterum pertinet quam redit ad proprietatem.
Moreover, the right of accrual exists not only if a usufruct is bequeathed to two persons, but also if the usufruct is bequeathed to one and the land to the other; for when the one to whom the usufruct was bequeathed loses it, it belongs to the other by the right of accrual rather than reverting to the ownership.
nec nouum: nam et si duobus usus fructus legetur et apud alterum sit consolidatus, ius adcrescendi non perit neque ei, apud quem consolidatus est, neque ab eo, et ipse quibus modis amitteret ante consolidationem, isdem et nunc amittet.
And this is nothing new; for even if a usufruct is bequeathed to two persons and is consolidated in the hands of one of them, the right of accrual is not lost, either for him in whose hands it was consolidated, or from him; and he himself will now lose it in the same ways as he would have lost it before the consolidation.
et ita et Neratio et Aristoni uidetur et Pomponius probat.
And this is the opinion of both Neratius and Aristo, and Pomponius approves of it.

Notes

  1. §7.2.3.prconcursu diuisus est — The subject is not explicitly stated, but `usus fructus` (usufruct) is understood from the context. It refers to a situation where the usufruct, which was held by multiple legatees in its entirety, is divided among them due to their competition (concursus).
  2. §7.2.3.2magis iure adcrescendi ad alterum pertinet quam redit ad proprietatem — Here, `alterum` refers to the person to whom the land was bequeathed (and who thus became the owner of the land). It explains the priority of legal principles: when the legatee of the usufruct loses their right, that usufruct accrues to the landowner (the other legatee) by virtue of the "right of accrual" (ius adcrescendi), rather than simply "reverting to the ownership" (consolidation).
  3. §7.2.3.2neque ei, apud quem consolidatus est, neque ab eo — Through the contrast between the dative `ei` ("for him") and the prepositional phrase `ab eo` ("from him"), this passage shows the bilateral survival of the right of accrual. It means that the right of accrual is not lost either for the party in whose hands the consolidation (consolidatio) of usufruct and ownership occurred (accruing to him if the other loses the right), or from that party (accruing to the other if he loses the right).

Cite this passage

Justinian I, The Digest of Justinian §7.2.3.pr-7.2.3.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:7.2.3.pr-7.2.3.2

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