36 i n t r o d u c t i o n a n d c o n t e x t

concept of quasi-usufruct allows him/her to control the assets donated and to receive the income as if he/she were a quasi-owner. However, this quasi-usufruct, appearing quite different in its application at first glance, is – at least in its conceptual nature – still very much compatible with the traditional concept of usufruct.

This, however, is not the case for the final face of usufruct, namely the new Dutch usufruct (section 6 below). Since the New Civil Code of 1992, the very concept of usufruct has changed substantially. Control and income may be fully vested in the hands of the usufructuary. The new Dutch usufruct may in appropriate circumstances entail the power of disposing and even consuming the assets subject to the usufruct. This has created a totally new, and perhaps even twisted, face of usufruct.

2. The concept of usufruct

The English word ‘usufruct’ derives from the Latin usus et fructus (use and enjoyment). Usufruct is a real right over movable and immovable property that is owned by another. Under Roman law, the usufructuary had the right to use and enjoy the property and its fruits, while preserving the substance of the property.9 The owner retained nude ownership, that is, ownership burdened with a real right of enjoyment and use. Both the French and Belgian Civil Codes (henceforth FCC and BCC) employ a similar description, namely usufruit and vruchtgebruik respectively (FCC/BCC, art. 578).10 In German law, property may be similarly burdened with a Niessbrauch (BGB, § 1030). Comparable descriptions are encountered in Austria, Portugal, Spain and Poland.

Usufruct is a real right, that is, a right on the property itself and not merely a right in relation to the property’s profits.11 In spite of this characterisation, usufruct remains a right with personal and temporal features12 since it is linked to the life of the usufructuary.13 This intensely personal character does not prevent the right of usufruct

9Gaius, 2.30; D.7.1.1; D.6.1.33; D.7.1.72; D.7.4.2; D.23.37.8.3. References from Scott, Civil Law, p. 286.

10The description in Old Dutch Civil Code, art. 803 (in force until 1992) was derived from Civil Code, art. 578 (Mijnssen, Van Velten and Bartels, Asser, Eigendom, p. 261).

11Zenati-Castaing and Revet, Les Biens, p. 494; de Page, Traite« «le«mentaire, p. 153.

12More comprehensive: Verbeke, ‘Creatief met vruchtgebruik’, pp. 532–8.

13Cass. 3 July 1879; Pas. 1879 I 342; Borkowski and Du Plessis, Roman Law, p. 172; BaudryLacantinerie, Pre«cis de droit civil, p. 770; de Page, Traite« «le«mentaire, p. 258; Prutting, Sachenrecht, p. 364; Verbeke, ‘Quasi-vruchtgebruik’, p. 37.

u s u f r u c t 37

from being alienated but merely limits the time frame of the transferred usufruct to the life of the original usufructuary (FCC, art. 617). It is, however, possible to establish the usufruct for a fixed term. Nevertheless, here too the usufruct will expire upon the death of the person on whose life the right was based, irrespective of the contracted term.14 It is not possible to constitute a usufruct which is permanent or unlimited in time.15 Its temporary quality is a rule of law which cannot be challenged.16

All kinds of property17 such as movable and immovable property (FCC/BCC, art. 581; BGB, § 1031–3); corporal and incorporeal property; factual and judicial collections of different kinds of property (universalities); shares; intellectual property; and fungibles (perishable property) (FCC/BCC, art. 589), can be burdened with a usufruct.18 Under French and Belgian law, an existing usufruct can also be subject to a usufruct.19 Since the usufructuary has the obligation to preserve the substance of the property, one can argue that, in principle, consumable or perishable goods cannot be burdened with a usufruct.20 After all, how is preservation possible in the case of goods which are consumed or which perish because of wear and tear? However, already in Roman law, and followed in current law, a specific regime was created for such goods, namely quasi-usufruct. Since the goods may be consumed, the principle of restitution in kind is replaced by restitution by equivalent (FCC/BCC, art. 587; BGB, § 1067). This offers an interesting perspective

14See Belgian report, Case 1.

15De Brabandere, ‘Usufruit, Usage, Habitation’, p. 30; de Page, Traite« e«le«mentaire, p. 157.

16Vandenberghe, ‘Actuele problemen’, p. 54. The temporal aspect also applies to the common law life interest (McClean, ‘Common Law Life Estate’, p. 655; Lawson and Rudden, Property, p. 97).

17Baudry-Lacantinerie, Pre«cis de droit civil, p. 774.

18Bougle and Gouthiere, ‘Patrimoine’, p. 134; Du Mongh, De erfovergang van aandelen, p. 227; Vieweg and Werner, Sachenrecht, p. 553; Zenati-Castaing and Revet, Les Biens,

p. 484. More comprehensive: Verbeke and Vanhove, ‘Spelen met vruchtgebruik’,

pp. 174 ff. Between the civil law usufruct and the common law legal life interest, there is no substantial difference as to the nature of the property on which both rights can be vested. It is certain that a legal life estate can subsist over real property. The question whether movable property can be the object of a legal life estate is more difficult to answer, but the common law jurisdiction will to a large extent uphold in one form or another a legal life estate in movable property (McClean, ‘Common Law Life Estate’, p. 653).

19Borkowski and Du Plessis, Roman Law, p. 169; de Page, Traite« e«le«mentaire, p. 217; Hansenne, Les Biens, p. 1025; Zenati-Castaing and Revet, Les Biens, p. 483.

20Verbeke and Vanhove, ‘Spelen met vruchtgebruik’, p. 174.