Personal Servitudes

Like the praedial servitudes, the personal servitudes (servitutes personarum or personales) were real rights over another person's property (iura in re aliena).

Otherwise than in the case of praedial servitudes, however, these servitudes could be acquired over both movables and immovables, and were designed for the benefit not of a particular property but of their holder in his personal capacity. In other words, there was no question of dominant and servient properties in this case and the holder of a personal servitude did not have to be an owner of land. Furthermore, personal servitudes had limited duration as they were terminated by the death of the holder or the lapse of the period for which they were granted.^{^[499]} As a personal servitude adhered to the person of the holder, the relevant right was not transferable or hereditary but the holder could grant the exercise of such right to another.^{^[500]}

In contrast with the large number of praedial servitudes, the number of personal servitudes was restricted to only four: ususfructus, usus, habitatio and operae servorum vel animalium.

3.5.2.1 Ususfructus

Usufruct (ususfructus) was the earliest and most complete of the personal servitudes. It entailed the right to use the property of another person and to take the fruits thereof without impairing its substance.^{^[501]} As a ius in re aliena, usufruct could be constituted over immovables, such as land and buildings as well as over movables that could not be consumed by normal use, such as cattle.

The holder of the usufruct or usufructuary (usufructuarius) had all the ordinary rights of use and enjoyment of the property to which the usufruct related, but was required to exercise these rights in a reasonable manner (civiliter modo).^{^[502]} Using the property civiliter modo meant preserving the substance and identity of the property intact (salva rerum substantia).

Thus, the usufructuary could not change the economic function or destiny of the property in question such as by constructing a building or opening a quarry on a farm. Furthermore, the usufructuary was required to maintain the property. If, for example, he had the usufruct of a flock of sheep or a vineyard, he had to maintain such flock or vineyard by replacing the sheep or vine trees that died or were destroyed. If he had the usufruct of a building, he was required to keep the building in repair and pay the requisite taxes in respect thereof. On the expiry of the usufruct, he had to hand the property back in the same condition as when he took it over and was not allowed to remove any improvements he may have initiated.^{^[503]}^{^[504]}

As already noted, the usufructuary was entitled to take all fruits, whether natural or civil, that the property produced. He acquired ownership of natural fruits (fructus naturales) by gathering them (fructus perceptio)²⁹ On the other hand, things that did not yield natural fruits could be leased or let and the holder of the usufruct obtained the proceeds as civil fruits (fructus civiles).

The right of usufruct, as a strictly personal right, was neither transferable nor alienable.^{^[505]} However, the usufructuary could lease or convey the right of use and enjoyment of the object of the usufruct to a third party as long as he continued to comply with the requirement of maintaining the substance and identity of the property in question.^{^[506]} It should be noted that since the usufruct as such was divisible, more than one person could have the right to use the property in question.^{^[507]}

Although only a detentor, the usufructuary was protected in classical law by a special interdict labelled the interdictum quem usumfructum that could be employed to demand the delivery of an immovable attached to his right of usufruct. Justinian regarded the usufructuary as the possessor of both the object and the right of usufruct, and granted him the general possessory interdicts.

As previously noted, in principle usufruct could not be constituted over things that were consumed by use (such as wine, grain or money) for this would conflict with the salva rerum substantia requirement.

However, a senatorial resolution (senatus consultum) passed in the early principate age provided that there might exist what the jurists called a ‘quasi ususfructus’ in consumable things. It was recognized that in such cases the usufructuary became owner of the money or other consumable objects, provided he gave security (cautio usufructuaria) that on termination of the usufruct he would restore a similar amount of money or quantity of things.^{^[508]} In time, the same principle was applied to incorporeal things (res incorporales) and thus, for example, a personal claim against a debtor could serve as the object of a quasi ususfructus. If a claim pertained to an amount of money, the usufructuary obtained the interest of such amount while the capital remained due to the creditor.^{^[509]}

3.5.2.2 Usus

The personal servitude of usus or use may best be described as an offshoot of ususfructus. It differed from the latter insofar as the holder of the relevant real right (usuarius) was entitled to use another's property without taking the fruits thereof.^{^[510]} At a later stage of the institution's development, however, the usuary was permitted to take fruits such as wood, milk, fruit or vegetables for his daily domestic needs.^{^[511]} If the object of the right was a house, he was allowed to live in it with his family, guests and even lodgers but could not let the house to another person.^{^[512]} Like the usufructuary, the usuary had to use the relevant property civiliter modo and preserve its substance and identity intact (salva rerum substantia).

class=a4 style='margin-left:0cm;text-indent:0cm'>3.5.2.3 Habitatio

The servitude of habitatio or inhabitation bore a strong resemblance to both usufruct and use.

It entailed the real right, also attached to the person of its holder, to occupy and reside in another person's house.^{^[513]} Jurists had questioned whether habitatio was a distinct servitude or even a servitude at all. However, Justinian pronounced that it existed as an independent servitude and he further refined the legal device to recognize that the holder of such servitude could not only reside in the house himself but also let it to others (in this respect habitatio was different from usus).^{^[514]}

3.5.2.4 Operae Servorum Vel Animalium

The personal servitude of operae servorum vel animalium entailed the real right to use the services of another person's slaves or beasts of burden. Like the usufructuary, the holder of such right was allowed to let the services of the slaves or animals to a third party.^{^[515]} In other respects, the rules relating to usus also applied in this case.

3.5.3

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Personal Servitudes

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