Enforcing the liferenter's obligation to repair: Roman law, ' ius commune ' and Scots law
Die Erhaltung der Nießbrauchssache: Römisches Recht, gemeines Recht und schottisches Recht

Author: Hellwege, Phillip

Source: The Legal History Review, Volume 79, Number 1, 2011 , pp. 81-119(39)

Publisher: Martinus Nijhoff Publishers, an imprint of Brill

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Abstract:

A liferenter has the right to use the fiar's property. Furthermore, he has the right to possession. Only after the termination of the liferent, the fiar can take up the possession and the use of the property himself. In the meantime, the fiar will want the liferenter to maintain the property, e.g., to carry out repairs. In Roman law, the liferenter was first only under an enforceable obligation to repair if he had rendered the cautio usufructuaria. However, in the further development of Roman law an actio in factum emerged in order to enforce the liferenter's duty to repair even if no cautio usufructuaria had been given. The exact point of time when this actio was developed is unclear. It is suggested that it emerged towards the end of the era of classical Roman law. During the time of the ius commune it was uncontested that the liferenter's duty to repair was enforceable even if no cautio usufructuaria had been given. As a consequence the liferenter did not have to nd caution in every case but only if the liferenter's conduct gave rise to fear a material infringement of the fiar's rights. The cause to revisit the question of the enforceability of the liferenter's duty to repair in its historical development is a decision of the Scottish Court of Session in 2002.

Keywords: ROMAN LAW; 'IUS COMMUNE'; SCOTS LAW; COURT OF SESSION; LIFERENT; USUSFRUCTUS; CAUTIO USUFRUCTUARIA

Document Type: Research article

DOI: http://dx.doi.org/10.1163/157181911X563066

Affiliations: 1: Lehrstuhl für Bürgerliches Recht, Wirtschaftsrecht und Rechtsgeschichte, Universität Augsburg, Universitätsstraße 24, D-86159 Augsburg, Germany;, Email: phillip.hellwege@jura.uni-augsburg.de

Publication date: 2011-03-01