Every now and then a vestige of the past pokes its head up in correspondence or pleadings and my reaction is usually either “Hey, good for you…nice word!” or “…tosser…”.

In this instance I chose neither option and instead turned to Google so I could Bing the word in order to know which reaction was appropriate.

What is Usufruct?

Usufruct is a term from Roman Law that is the right to use someone else’s property as long as that use does not destroy or deplete the property. Usufructuary rights can be granted individually or to groups such as a timeshare arrangement where each individual member of the group can use the house seperate of the other members but holds an obligation not to damage the house.

Usufructuary rights can be granted for any amount of time such as a life estate in property, where ownership never changes hands but that persons right to use the property is irrevocable for the term of their life.

As opposed to ownership rights the usufructuary cannot sell (alienate) the property but under some circumstances they can sell or lease their interest. The usufructuary is able to sue for relief if their rights are infringed by the owner or otherwise.

Origins

Usufructory: Usus = a use. Fructus = Fruit.

The Latin term meant literally that a person was entitled to a use of and the fruits of property or fair use and enjoyment, which should sound similar to anyone renting a property. Roman Law distinguished between usus and abusus; which was the right to sell, give or destroy property, as is usually associated with true ownership.

There were several different types of usufructuary rights including fructus industriales such as crops growing on someone’s land and is similiar to fructus naturales such as a river running through property or the naturally inhabiting wildlife. The Romans also extended fructus naturales to the human slaves which naturally came with the property, because of course. Other usufructuary rights included fructus civiles such as rights which were legally occurring like loan interest. Even more:

• Fructus consumpti – the right to consume recurring fruits which can be consumed without destroying the means of production, such as an apple off a tree.
• Fructus extantes – a general term for fruits which cannot be consumed such as the right to harvest crops, but harvested only to deliver them to the owner. A right to mine land on behalf of the owner for a fee for example, like a contractor.
• Fructus pendentes – fruits not separated from the means, such as the right to apples only once they fall from the tree but not whilst they are Fructus pendentes (pending fruits).
• Fructus percepti – the opposite of pendentes, being the right to harvest the fruit and retain.
• Fructus percipiendi – fruits which have not been produced but should have. Keeping with the apple analogy, buying the right to trees and the trees don’t produce fruit. This would create a right to recover the equivalent that should have been produced.
• Fructus separati – fruits separated from the object which produced them (e.g. berries gathered from a tree)

(Walter G Robillard, Browns Boundary Control and Legal Principles, 6th Edition, CTI Reviews, online)

Usufructuary rights is one of the oldest legal principles in existence and was recorded in both the Code of Hammurabi the Law of Moses. The Law of Moses created a charitable usufructuary right where landowners would leave a small percentage of their crop unharvested for the collection and use of the poor.

What is it now?

There remains types of usufructuary laws in Australia, but they are more commonly known by other names such as life estates or certain types of resource leasing.

Dickerson v The Grand Junction Canal Company, 9 E. L. & Eq., 520 for example dealt with a landowner having rights to draw water from a stream. The question arose as to whether that right extended to a subterranean water course. As the usufructuary rights related to riparian rights (water) it was decided that the right to a subterranean course must naturally flow (pun intended) to the legal rights holder of the surface stream, whether those rights are total or usufructuary.

The idea of usufructuary has also been used in political philosophy and organisation such as usufructuary rights evolving in Europe as a version of collective ownership. Marx in Capital (ch 27) discussed the destruction of the traditional agrarian community farming during the late fourteenth and early fifteenth centuries towards a newer, more capitalised model of complete ownership and servitude:

“The vast majority of the population was made up of […] free peasants cultivating their own lands, regardless of the feudal obligations that were attached to their rights of ownership. […]. As for day labourers, “as well as their wages, they were given a concession of at least a four-acre field; […] in addition, along with the peasants in the strict sense of the term, they enjoyed the usufruct of communal property, where they could graze their cattle and provide themselves with wood, turf, etc. for heating.”

Léon Bourgeois in his book Solidarité takes the idea in the direction of a general duty to act in the interest of future generations in all regards including politically, culturally, environmentally and so on, evoking more of a stewardship model of collective action:

“It was for the benefit of all those called to life that those who have died created this capital of ideas, forces and aids. Consequently, it is for the sake of those who will come after us that we have inherited from our ancestors the responsibility for paying this debt […] Each generation that follows can truly consider itself to be a usufructuary of this inheritance: it only has the right to hold on to it on condition that it preserves it and faithfully passes it on.”