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Justinian I · The Digest of Justinian §7.9.3.pr-7.9.3.4

Extinction of Usufruct and Liability under Security

Passage 1339 of 9271 · Latin

Summary

Ulpian discusses how all cases of the loss of a usufruct are covered by the security stipulation, and examines the occurrence of liability and the availability of defenses under specific circumstances, such as repeated legacies or the alienation of bare ownership.

[ULPIANUS libro septuagensimo nono ad edictum. ] §7.9.3.prOmnes autem casus continentur huic stipulationi, quibus usus fructus amittitur.
[ULPIAN in the seventy-ninth book on the Edict.] However, all cases by which a usufruct is lost are covered by this stipulation.
§7.9.3.1Desinere pertinere usum fructum accipiemus etiam si nec coeperit pertinere, quamuis legatus sit, et committetur nihilo minus stipulatio, quasi desinat pertinere quod nec coepit.
We shall interpret the phrase 'the usufruct ceases to belong' to apply even if it has not even begun to belong, although it has been bequeathed as a legacy; and the stipulation will nonetheless be triggered, as if that ceased to belong which did not even begin to do so.
§7.9.3.2Si usus fructus repetitus erit legato, quotiensque amissus fuerit (nisi utiliter fuerit cautum), committetur ista stipulatio: sed exceptione opus erit.
If a usufruct has been repeatedly bequeathed as a legacy, as often as it is lost (unless security has been effectively provided), this stipulation will be triggered; but there will be need of a defense.
§7.9.3.3Sed et si quis usum fructum tibi legauerit et sub condicione 'si liberos habueris' proprietatem, amisso usu fructu committetur quidem stipulatio, sed exceptio locum habebit.
But also if someone has bequeathed a usufruct to you, and the ownership under the condition 'if you have children', upon the loss of the usufruct, the stipulation will indeed be triggered, but a defense will have place.
§7.9.3.4Si heres alienauerit proprietatem et postea amittatur usus fructus, an ex stipulatu agere possit, uideamus.
If the heir has alienated the ownership and afterwards the usufruct is lost, let us see whether he can sue on the stipulation.
et fortius dici potest ipso iure non committi stipulationem, quia neque heredi successoribusue eius restitui potest neque is cui potest, id est ad quem peruenit proprietas, pertinet ad stipulationem: sed is ad quem peruenit tempore quaesiti dominii sibi prospicere alia cautione debet: quod etsi non fecerit, nihilo minus in rem actione uti potest.
And it can be more strongly argued that by operation of law the stipulation is not triggered, because neither can restoration be made to the heir or his successors, nor does the person to whom it can be made—that is, the person to whom the ownership has passed—have any concern with the stipulation. But he to whom the ownership has passed ought to protect himself by another security at the time he acquires ownership; and even if he has not done this, he can nonetheless bring an action in rem.

Notes

  1. 7.9.3.prhuic stipulationi — Dative of reference or inclusion used with the passive verb continentur. Although continere typically governs in with the ablative, here it takes the dative to express being 'comprehended under' or 'bound by' the stipulation.
  2. 7.9.3.1Desinere pertinere usum fructum — Accusative and infinitive clause acting as the object of the main verb accipiemus. usum fructum is the subject accusative, and desinere is the main infinitive, which is completed by pertinere. It translates to 'that the usufruct ceases to belong.'
  3. 7.9.3.1quasi desinat pertinere quod nec coepit — Conditional clause of comparison introduced by quasi ('as if'), which triggers the subjunctive present desinat. quod is a relative pronoun with an implied antecedent (such as id, acting as the subject of desinat), and nec coepit in the indicative perfect indicates the historical fact that it never actually began.
  4. 7.9.3.4ipso iure non committi stipulationem — Accusative and infinitive clause functioning as the subject of the passive phrase fortius dici potest ('it can be more strongly argued'). stipulationem is the subject accusative and committi is the present passive infinitive.
  5. 7.9.3.4neque is cui potest — An elliptical construction where the infinitive restitui ('to be restored') is omitted in the relative clause cui potest. The main subject is ('he') connects to the distant predicate phrase pertinet ad stipulationem.

Cite this passage

Justinian I, The Digest of Justinian §7.9.3.pr-7.9.3.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:7.9.3.pr-7.9.3.4

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