>>> Item number 577, dated 94/04/11 19:59:44 -- ALL
Date: Mon, 11 Apr 1994 19:59:44 -0500 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: firstname.lastname@example.org Subject: Usufructary Rights
From: Judith Schafer <email@example.com>
I do not know what prompted your student's question, but in Louisiana, a usufruct is the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility, and advantages which it may produce, provided it be without altering the substance of the thing. There are two kinds of usufructs: perfect and imperfect. A perfect usufruct is of things which the usufructuary can enjoy without changing its substance i.e. real estate (in the antebellum period, this included slaves), a house, furniture, etc. An inperfect usufruct is over things which cannot be useful if not comsumed, such as money, grain, or liquors. See Articles 533, 534 of the Louisiana Civil Code. Both of these code articles are virtually unchanged since the Digest of 1808, Louisiana's first compilation of civil law in the American period.
I can't claim any particular knowledge about how usufruct is used or defined in any of the contexts you mention. However, the term is regularly used in Lousiana community property law to refer to any situation where one spouse has the ability to use and occupy property of the other. The terminology only survies in Lousiana and is not used in the other eight community property jurisdictions (NM, NV, TX, ID, CA, WA, WI, AZ). I suspect, but do not know, that the explanation lied in the much closer connection to the spanish and french systems of civil law in Lousiana than in the other jurisdictions.
Anyway, hope this helps.
>>> Item number 583, dated 94/04/12 20:03:18 -- ALL
Date: Tue, 12 Apr 1994 20:03:18 -0500 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: firstname.lastname@example.org Subject: Usufructs
> A student (let's call her Michelle) came to see me about "use-of-a-truck" > which could not be found in any dictionary. I managed a fair off-the-cuff > definition of "usufruct" as the right to use land without actually owning > it. It is often used in the context of native land claims. Had Michelle > plumbed a little deeper, she would have discovered the depth of my ignorence. > Is there an opposite to usufruct or usufructary rights? > What other kinds of property rights are there in addition to usufruct? > Do I have usufructary rights over my patch of sidewalk as I walk down the > street? (The sidewalk is "public" property.) > Is it the usufructary right which is partitioned when one owns the land > but not the mineral rights to a piece of property?
The term "usufruct" is more common in the Roman Law or Civil Law than it is in common law jurisditcitons. It is the term that is used to describe the beneficial interest that someone has (usually in land) when "ownership", _viz_., _dominium_, is in someone else. Thus it refers to a right in the land of another, _viz_. _jus in re alienum_.
As Judith Schafer and Liz Brandt have pointed out in the United States the term is most commonly used in Louisiana--though I have known tough oil and gas attorneys to blanch, or redden, when they were called upon to pronounce that good old legal term "usufructuary".
Since a usufructuary interest is an interest in the fruits of the land the closest common law term--I can't say the English term--is a "profit" or, more properly, a _profit a' prendre_, the right to take (some of) the profits from the land, i.e, the right to take gravel, or to let your pigs go on the land and eat the acorns, or the right to go hunting and shooting and fishing on land of which someone else is seised. (Ownership isn't a common law concept; seisin is what counts at common law.) Both other servitudes--other rights in the land of another--can also be called usufructs; thus an easement may be called a usufructary interest and, in some states, I have seen a tenancy for a term of years described as a usufruct, though that construction seems awfully odd to me.
As you mention, aboriginal or native "title" is often called a usufruct, the actual ownership or seisin being in the sovereign and the poor abos and indians only having the right to use their land at the pleasure--or whim--of the sovereign aforesaid. In the United States this description of native title allows the sovereign to take the Indians' property without having to pay just compensation, because the Indian title, being a mere usufruct, is not constitutionally protected as property. Cute, huh?
Hope this helps.
Peter D. Junger
Case Western Reserve University Law School, Cleveland, OH Internet: JUNGER@SAMSARA.LAW.CWRU.Edu -- Bitnet: JUNGER@CWRU
>>> Item number 588, dated 94/04/18 20:54:30 -- ALL
Date: Mon, 18 Apr 1994 20:54:30 -0500 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: email@example.com Subject: Re: Usufructs
The student who inquired about the "use-of-a-truck" reminds me of the time > a student informed me on an exam that the legal term for an official > witness to wills and other legal transactions was a "note of republic." >
>>> Item number 596, dated 94/04/20 07:11:38 -- ALL
Date: Wed, 20 Apr 1994 07:11:38 -0500 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: firstname.lastname@example.org Subject: Re: Usufructs
From: Jonathan Lurie <email@example.com>
In response to "use of a truck," I am reminded of what one of my students wrote on an essay question I had asked about Doris Kearns's book on Lyndon Johnson. The student informed me that "Johnson's love of power ejaculated himself to success in the Senate." I was tempted to write "oh Come now!" in the margin, but refrained from so doing.....