Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

(e.g., fruit from an orchard or ore from a mine, rental income, offspring of livestock). The combination package, usufruct, is more common, and, since the rules for this and for usus by itself are largely the same, I will speak only of usufruct in what fol lows. In principle, there could be a usufruct of anything (origi nally only a thing not meant to be consumed – say, livestock or tools, but not cash or grain), but in practice it was usually used for real estate. Usufruct could be created by the various rituals used to transfer ownership in general (in fact, the right of usufruct is treated as a type of property in its own right). In this way one could give or sell usufruct in a commercial transaction. However, this is not actually how it was normally used. The ordinary way to create a usufruct was by will; own ership of an item was left to one person, and usufruct of it to another. So, for instance, a man might pass title of the family house to his children, but leave the use of it to his wife. In fact, provision for widows seems to give rise to more usufructs than all other scenarios combined, and may have been the origin of the entire concept. It could also be used in the division of an estate among heirs who wanted to retain some parts more or less in common. The fact that usufruct is so closely tied to this one social situation makes sense of a number of the specific rules that govern it. For instance, a usufruct could not be created to last longer than the lifetime of the person who was to benefit. Contrast that to modern copyright, which substantially out lives the actual author. This is because the value of copyright lies primarily in its sale, so the longer term helps the buyer and

144