Roma Hukukunda intifa hakkı (usus fructus)
Usufruct in Roman Law (usus fructus)
- Tez No: 72528
- Danışmanlar: PROF. DR. ÖZCAN ÇELEBİCAN
- Tez Türü: Doktora
- Konular: Hukuk, Law
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 1998
- Dil: Türkçe
- Üniversite: Ankara Üniversitesi
- Enstitü: Sosyal Bilimler Enstitüsü
- Ana Bilim Dalı: Özel Hukuk Ana Bilim Dalı
- Bilim Dalı: Roma Özel Hukuku Bilim Dalı
- Sayfa Sayısı: 238
Özet
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Özet (Çeviri)
206 SUMMARY Ownership in Roman Law on which our modem notion of ownership is based was the most comprehensive private right to a thing (res) anyone could have. In a simple case the owner himself has all the rights which can be exercised over the things, but sometimes others may have rights over it which, to a greater or less extent, limit his enjoyment of it. Certain limits to which ownership was subjected were founded on custom, sacral law, public law and sometimes also on private law, especially with regard to the law governing the relationships between neighbours. However, the owner himself could also by a juristic act grant a more or less far reaching interest in the thing to another, either by virtue of an obligatory legal relationship (e. g. by letting or lending) or by a restricted real right (ius in re aliena, e. g. servitudes, pledge, usufruct etc.). As soon as such a restriction fell away, ownership again extended to the full power over the thing. Restricted real rights (iura in re aiiena) in Roman Law are commonly described in metaphorical terms as fractions of ownership vested in someone other than the owner, or as encumbrances or burdens on ownership or on the thing owned. The Roman jurists gave them the name of iura in re aiiena, rights in rem over another man' s property. The principal iura in re aiiena were termed by Justinian“servitudes”, but the two types of right which are included under this head, praedial servitudes (servitutes praediorum) and personal servitudes (servitutes personarum), are so different in character and function. By the concept of servitudes (or iura praediorum) earlier and classical law meant only such an encumbrance when a piece of land was encumbered and indeed in such a way that the owner for the time being of another piece of land, was also entitled to the right. This relationship was described by using the metaphor that said that one piece of land served the owner (servitus), and even today we speak of rights of this kind by calling them servitudes and of the207 dominant and the servient land. But Justinian also included usufruct (ususfructus) and related rights (usus, habitatio, operae servorum et animalium), which could only be vested in specified individual persons, in the concept of servitudes. Accordingly, Continental Law and also modern codes divide the overall concept of servitudes into real (or praedial) servitudes and personal servitudes. Personal and praedial servitudes form a definite unity and require a generic term in order to mark them off from real securities (pignus, hypotheca), emphyteusis and superficies, which have a fundamentally different function. The outstanding personal servitude was the usufruct (ususfructus). Usufruct was the right to enjoy the property of another and to take the fruits, but not to destroy it, or fundamentally alter its character. The right was vested in the usufructuary personally, it was strictly personal to him, and was thus neither assignable nor transmissible. Usufruct probably arose during the second century B. C. in order to make it possible to provide maintenance for certain members of the family entitled to succession upon death who were disinherited and who were instead given a legatum ususfructus, i. e. the widows. This purpose of making provision explains why the right was strictly personal to the grantee. The most common way of creating a usufruct was by direct legacy, further by in iure cessio, or by the transferor' s reservation when transferring ownership of the thing by mancipatio, in iure cessio or direct legacy deducto usufructu, and finally by adiudicatio in partition proceedings. Usufruct of provincial land was created by pactiones et stipuiationes. Prescriptive acquisition was applicable to usufruct under Justinian' s law. And under Justinian' s Law when mancipatio and in iure cessio no longer existed a usufruct could be constituted paction i bus et stipulation/bus, and also by traditio ususfructus and by traditio rei deducto usufructu. There were also some cases in which usufruct arose by law without express creation, e. g. the208 usufruct of the paterfamilias, in the later law, in bona adventicia, the usufruct of the emancipating father under Justinian' s law, and cases in late law in connection with second marriages. A usufruct might be in land or buildings, a slave or beast of burden, and in fact in anything except things which were destroyed by use (quae ipso usu consumuntur), the reason, of course, being that it was impossible to restore such things at the end of the usufruct intact (salva rerum substantia). But the Senate permitted a quasi usufruct to be created by will even in regard to things of this kind. The usufructuary could not undertake to restore them, but he was made to give security and to undertake (by a cautio) that when the usufruct ended he or his heir would restore the capital value of the things comprised in the usufruct to the testator* s heir. The usufructuary was entitled to the use and enjoyment of the property and, although he could not, legally, transfer the usufruct to another, he could let or sell the use and enjoyment of it. He was not liable for accidental loss or damage. If the property in question were a farm he was entitled to its ordinary produce, and acquired by fructuum perceptio the fruits, in which were included the young of animals, but not the children of a female slave. If the property were a slave the usufructuary was entitled to his services and the usufructuary acquired whatever the slave made by his own work (ex opens suis) or by the property of the usufructuary (ex re fructuarii). The usufructuary had a special action which the classical lawyers called actio de usufructu or vindicatio ususfructus, the compilers of the Digest designated it by the term actio confessoria. The vindicatio ususfructus originally lay only against the owner of the thing, but later it lay also against any possessor who might be sued with the rei vindicatio.209 In all cases the usufructuary was bound to show the same degree of care in relation to the property as a bonus pater familias. He could not use the property for any purpose other than the agreed one, nor alter the character of the property. These duties were secured by a cautio usufructuaria. By the cautio the usufructuary was bound to promise use the thing boni virt arbitrate and to restore it at the end of the usufruct. Since usufruct greatly impaired the rights of the owner, its duration was deliberately kept within narrow limits. Any usufruct came to an end with the death of its holder, and parties were not allowed to make it inheritable. Further, usufruct came to an end in the event of capitis deminutio, but the testator might provide this by repetitio legati. Where usufruct was given to a corporation, its limit under Justinian' s law was 100 years. Parties might constitute a usufruct ad tempus (e.g. for three years) by legacy, in iure cessio and adiudicatio. Usufruct was extinguished by renunciation in in iure cessio in favour of the owner of the thing; by merger when usufruct and ownership came together in the same person (consolidation and by non- usus. Finally the usufruct ended not only if the thing ceased to exist but also if it was considerably altered.
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