Roman Law :

LAW ON THINGS
(continuation...)

Analie P. Esquilla LO1

Classes of Personal Servitude

in Roman Law :

a.
b.
c.
d.

Usufructus
Usus
Habitatio
Operae

a. Usufructus as defined...
In Roman Law:
- is the right to use
and take the fruits
the property of
another, the subject
matter or source of
the fruits being left
intact

In Philippine Civil
Code:
- (Art. 562) it gives the
right to enjoy the
property of another
with the obligation
of preserving its
form and substance

Rights of a Usufructuary...
In Roman Law:
1. entitled to the
possession of the
property & could
make lawful use of it
2. entitled to enjoy the
thing in particular
form in which he
receives it.

In Philippine Civil Code:

1. Art. 562
-combination of jus utendi
(right to use) and jus
fruendi (right to the fruits)
2. Art. 566
-entitled to all the
natural,industrial & civil
fruits of the property in
usufruct

Rights of a Usufructuary...
In Roman Law:
3. could release or surrender his
rights to the owner but could
not alienate it absolutely to a
3rd party.
4. could assign by way of pledge
or mortgage his interest to
another, the actual legal right
remaining in himself.
5. complete right to get all the
products of the res if he chose
to.

In Philippine Civil
Code:
continuation...
With respect to
hidden treasure
which may be
found on the land
or tenement, he
shall be
considered a
stranger.

Obligations of a Usufructuary...
In Roman Law:
1. must pay the taxes &
assessments on the property
held in usufruct
2. must use the property as a
careful man; must not
commit waste but must keep
the property in good
condition, until the
expiration of the usufruct,
by making proper
replacements and ordinary
repairs.

In Philippine Civil Code:

stated in Art. 583...
1. to make after the notice
to owner or his
legitimate representative
an inventory of all the
property, which shall
contain an appraisal of
the movables and a
description of the
condition of the
immovables

Obligations of a Usufructuary...
In Roman Law:
3. protect the property
from trespass and to
restore it reasonably
intact.

In Philippine Civil Code:

2. to give security, binding
himself to fulfill the
obligations imposed
upon him in accordance
with the law.

Obligations of the Owner of the property

subject to usufruct...
In Roman Law:
1. The naked owner must
suffer the exercise of the
usufruct without doing
anything to prejudice the
rights
of
the
usufructuary. As long as
the usufruct lasted, the
rights of the holder of the
bare legal title were
virtually
held
in
abeyance.

In Philippine Civil
Code:
Chapter 3 under the
Obligations of the
Usufructuary
- the owner is more or
less
passive
and
allows
the
usufructuary to enjoy
the thing given in the
usufruct

Quasi-usufruct...
In Roman Law:
Means that a usufruct of fungible goods that
might be created by will. The so-called fructuary
of course became the owner of the oil or the wine
or money so bequeathed, but had to furnished
security (cautio), that he would restore the same
quality & quantity of the consumable things he
received - an obligation which fell on him.

Quasi-usufruct...
In Roman Law:
The result is the same with a true usufruct, but
the legal form which the transaction assumes is but
of ownership encumbered with an obligation. The
fact that it is bound to give a security, reduces his
ownership on the consumable things, in some
degree, to the level of the rights of a mere
usufructuary.

Quasi-usufruct...
In Philippine Civil Code:
Art.574...
Whenever the usufruct includes things which
cannot be used without being consumed, the
usufructuary shall have the right to make use of
them under the obligation of paying their
appraised value at the termination of the
usufruct,if they were appraised when delivered.
In case they were not appraised, he shall have
the right to return the same quantity & quality,
or pay their current price at the time the
usufruct ceases.

Quasi-usufruct...
b.
b. Usus
Usus ...
...
1. Lesser right than usufruct since it is merely
a right of a user without the absolute right
of fructus (fruits).
2. It confers on the usuary a real right for life,
necessary for the satisfaction of his own
personal requirements

b. Usus ...

3. The usuary could not however, alienate

the use. He is disbarred on the principle
from letting or selling his right.
4. He is not bound to make repairs bu if the
property yielded no fruits for the owner,
the usuary was under the obligation to
repair.

c. Habitatio ...
In Roman Law:
1.is a real right for life to live in a house not one's
own after the manner of a person entitled to
maintenance.
2. It is the owner of the house who determines in
what manner & in what part of the house the
habitator shall live.
3. The object of habitatio being to enable the
habitator to support himself, he is entitled to
enjoy the benefit intended to be conferred on him
in the shape of money.

d. Operae ...
In Roman Law:
1. Services of Slaves (operae servorum) or animals (operae
animalium) were rights to the services of slaves or
animals belonging to another. He who has the right to a
slave is not permitted to transfer his right to another
since it is purely personal.
2. Services of Slave (operae servorum) the right did not
terminate by the death of the slave or slaves only.
In this respect both differed from usus and usufruct which
were extinguished by the death of the usufructuary.
3. Operae Servorum vel animalium was not lost by nonusage.

Modes of Creating Personal Servitudes...

In Roman Law:
1. by contract
2. by will
3. by judicial decree or
adjudication
4. by prescription
5. by special law

In Philippine Civil
Code:
Art. 620...
1. by title
-e.g. law, donation,
testamentary
succession, contract
2. by prescription (10
yrs)

Modes of Terminating Personal Servitudes...

In Roman Law:
1. by death of the holder of a
personal servitude
2. by limitation, if granted for
a specified period
3. by merger, when the holder
of the servitude and the
naked owner become one
and the same person
other words, when there is
consolidation of different
interests

In Philippine Civil Code:

Art. 631
1. by merger in the same
person of the ownership
of the dominant and
servient estates
2. by non-user for 10 yrs;
3. bad condition of the
tenement or
impossibility of use

Modes of Terminating Personal Servitudes...

In Roman Law:
4. by renunciation or
voluntary surrender of
the right or servitude to
the owner
5. by non-user for the
period of prescription
6. by destruction of
property subject to the
servitude

In Philippine Civil Code:

Continuation...
4. by expiration of the term
or fulfillment of the
condition
5. by renunciation by the
owner of the dominant
estate
6. by redemption agreed
upon

Praedial Servitudes...
In Roman Law:
-are burdens imposed
upon immovable
property land or
buildings for the benefit
of other immovables
regardless of the
persons who happen to
own the two estates; the
dominant & servient.

In Philippine Civil Code:

Art.613..
-an encumbrance imposed
upon an immovable
property for the benefit
of another immovable
belonging to a different
owner.

Classes of Praedial Servitudes...

In Roman Law:
1. Rustic or Rural more frequently exercised in
the country
2. Urban exercised in the city
Note: however, that distinction does not relate to
the location of the land with which immovable
property is connected.

Praedial Servitudes...
In Roman Law:
1. Rustic or rural servitudes
a. Iter- means footpath, a
right to pass ,to walk but
not to drive animals or a
carriage. The width of an
iter was whatever was
determined by the grant
& the right could be
granted to as many
persons as the owner of
the servient land wished.

In Philippine Civil Code:

1. Art. 649-657
- Easement for right of
way

Praedial Servitudes...
In Roman Law:
1. Rustic or rural servitudes
b. Actus- is the right of driving a beast of burden or
cattle, or chariot, or a cart over the land of another. It
includes the right of iter & its width as in iter depended
upon agreement.

Praedial Servitudes...
In Roman Law:
1. Rustic or rural servitudes
c. Via is a more comprehensive term than actus since it
includes and in addition gives the right to drive a loaded
cart or wagon or even to haul timber or stone. By the
law of the Twelve Tables, the width of a via was fixed at
eight feet where the road was straight, but in case of a
turn in the road, sixteen feet were allowed. However, a
via could be created for more or less than eight feet,
provided the width was sufficient for the purpose.

Praedial Servitudes...
In Roman Law:
1. Rustic or rural servitudes
d. Aquaeductus is a right to conduct water across or
from another's land to one's own land by means of pipes,
trenches or canals. The terms of the grant usually
determined the location of such a course, but Paulus
says that a grant of a watercourse across one's land
without a designation of the location subjects the whole
servient estate to the servitude.
In Philippine Civil Code:
Section2: Easements Relating to Waters Art. 644-648

Praedial Servitudes...
In Roman Law:
1. Rustic or rural servitudes
e. Aquaehaustus is the right of taking water by means of
buckets or other vessels from the spring, fountains, or
pond of another. When one has a right to draw water, he
is held to have a right of iter also in order to have access
to the water.
In Philippine Civil Code:
Art. 641.. Easements for drawing water

Praedial Servitudes...
In Roman Law:
Other rural servitudes
a. Pecoris ad appulsum - is the right to drive cattle to
water on the land of another
b. Jus pascendi is the right to pasture cattle on the land
of another
c. Calcis coquendae is the right to burn lime on the
servient estate.
d. Arenae fodiendi is the right to dig for sand
e. Lapidis eximendi is the right to take stone from
another's quarry.

Praedial Servitudes...
In Roman Law:
2. Urban Praedial servitudes
- these are connected with buildings. These deal with
immovables erected upon land. The most common
servitudes pertaining to buildings are the following:
a. Oneris Ferendi (right of support) the owner of a
house may have the right to make use of the wall or
building of an adjoining owner as a support for his own.
It may be a duty upon the whole of a neighboring
building. In either case, the servient owner is bound to
keep his building or wall in repair so as to furnish the
support he owes.

Praedial Servitudes...
In Roman Law:
2. Urban Praedial servitudes
b. Tigni Immittendi (right to insert beams in a
neighboring wall) the right to insert a beam, tile, stone
or piece of iron in or upon a neighbor's walls was known
as Servitus Tigni Immittendi. The right, however, did not
impose any legal duty upon the servient owner to keep
the wall in repair.

Praedial Servitudes...
In Roman Law:
3. Projiciendi et Protegendi
- the right of having a part of one's building project over
the project over the land of another as, for example, in
case of a projecting balcony. It involved no right of
support or right to insert a beam, in another's building,
but merely created a right that a certain part of one's
building, as for example, the eaves, a projecting window
or a balcony might overhang the land belonging to
another.

Praedial Servitudes...
In Roman Law:
d. Stillicidli - was primarily the right to have the rain
water from the roof of one's house to flow its natural
course upon a neighbors land. Other forms of this
servitude consisted in a right to conduct, by means of a
pipe, the rain water from one's roof to adjoining land, or
the right to receive such water from a neighbor's house
in one's garden or cistern.

Praedial Servitudes...
In Roman Law:
e. Altius Tolendi et Non Tolendi - the right which the
owner of land has to prevent an adjoining owner from
erecting buildings upon his land beyond a certain height.
In this way, the owner of the dominant estate could
insure his prospect and light from being impaired.
Light means a view of the sky and prospectmeans
an unobstructed view of the lower levels.

Praedial Servitudes...
In Roman Law:
e. Other Urban Servitudes
Right to maintain a drain or sewer through
neighboring premises
Right to allow smoke from household fire in one's
home may be a servitude be carried off thru the
chimney of an upper or a side dweller.
Right to have the light of day uninterrupted by any
building, trees or other obstructions upon
neighboring premises.

Praedial Servitudes...
In Roman Law:
Positive and Negative Servitudes:
Negative servitude - is a right to prevent one from doing
something which without such restriction he could
lawfully do as where one by right of such a servitude
may prevent an adjoining owner from building above a
certain height.
Positive servitude is a right to do what one without
such right, could not lawfully do, as a right to go over
the land of another.

Praedial Servitudes...
In Roman Law:
Examples of Positive Servitudes:
- right of way
- right to draw
- right to drive cattle to water
- right to dig sand
- right to burn lime
- right to project a roof or balcony over adjoining land
- right to place beams in an adjoining wall
- right to support houses on a party wall

Praedial Servitudes...
In Roman Law:
Examples of Negative Servitudes:
- to prevent the adjoining proprietor from building
above a certain height, or its opposite, the right to
daylight or its opposite
- right to prospect or its opposite
- right of turning water on a neighbor's land.

Praedial Servitudes...
In Roman Law:
Active and Passive Praedial Servitudes:
Passive if it is merely permissive since the servient
owner merely permits something to be done on his land
or refrains from doing some particular thing
Negative when the servient owner is bound to keep his
wall or building in repair and consequently makes the
right which is in the case of the servitude of support.

Praedial Servitudes...
In Roman Law:
Rules Common to all Praedial Servitudes:
- it essentially either negative or passive
- its essence lies in the fact the owner does not use his
property in a certain way or permits a certain use
of
it by another person
- it could not impose burdens which were of no
advantage to the dominant estate
- no person could have a servitude on his own property
- it is indivisible

Praedial Servitudes...
In Roman Law:
Modes of Creating Praedial Servitudes:
a. Under the Jus Civile it can be acquired by
agreement in jure cessio, by legacy, adjudicatio
b. Under the Praetor by parties entering into
a pactio or informal agreement

Praedial Servitudes...
In Roman Law:
Modes of Creating Praedial Servitudes:
c. Under Justinian
1. pacts and stipulations
2. deductio
3. prescriptio longi temporis
4. testament
5. adjudicatio
6. express provision of law

Praedial Servitudes...
In Roman Law:
Modes of Terminating Praedial Servitudes:
a. Merger or confusio
b. Renunciation or Voluntary Surrender
c. Destruction of Land
d. Non-user

Praetorian Servitudes...
In Roman Law:
Praetorian Servitude is due to the development of
certain dismemberments of the right of ownership
which are conveniently termed praetorian
servitudes namely:
a. Emphyteusis
b. Superficies
c. Pledge
d. Mortgage
e. Lien

Praetorian Servitudes...
In Roman Law:
a. Emphyteusis a real right in the property of
another. From a Greek word compounded from en
upon and phuteuo grafted, or grafted upon, the
dominium or ownership. It was a long lease, usually a
perpetual lease of large tracts of lands, whereby the
tenant, known as the emphyteuta had practically all the
rights of an owner, the technical owner, dominus,
having only a naked title.

Praetorian Servitudes...
In Roman Law:
Nature of Emphyteusis
It was an agreement between the emphyteuta
and the dominus was neither a contract of hiring
or sale, but a special kind of juristic act and that
the legal relationship created by emphyteusis
was sui generis and was governed by rules of its
own.

Praetorian Servitudes...
In Roman Law:
Rights of Emphyteuta
1. entitled to exercise all the rights of an owner as long
as his right last
2. has the full right to take, not only the fruits, but all
the produce of the land
3. the right of usufructuary or a mere lessee for a short
term of years and has not make improvements & change
mode of cultivation

Praetorian Servitudes...
In Roman Law:
Obligatons of Emphyteuta
1. He must pay his annual rent
2. He must not deteriorate the property
3. He must give his landlord notice of his intention
to dispose of his rights as perpetual lessee so that the
landlord may, if he chooses, exercise his right of preemption (jus promitiseos)
In case of failure to comply of any of these duties, the
landlord may deprive the emphyteuta of his rights as
perpetual lessee.

Praetorian Servitudes...
In Roman Law:
Rights and Duties of the Legal Owner:
The holder of the naked legal title was bound to
admit the buyer of an emphyteusis into possession and for
his trouble, he was entitled to a fine of 2% of the purchase
money.
Modes of Creating Emphyteusis:
a. by contract
b. by will
c. by prescription

Praetorian Servitudes...
In Roman Law:

Modes of Terminating Emphyteusis:

a. destruction of the property
b. renunciation or voluntary surrender by the
emphyteuta
c. forfeiture by the emphyteuta
d. merger of the emphyteusus & naked ownership
e. prescription

Praetorian Servitudes...
In Roman Law:
Superficies a right similar to emphyteusis, in that it is a
long perpetual engagement or use of anything built on land,
upon the payment of an annual rent. The builder, known as
the superficiary, was said to have superficies in the land,
and the praetor recognized this as a jus in re which he
protected by allowing proper actions for such purpose.

Praetorian Servitudes...
In Roman Law:
Rights and Duties of the Superficiary:
- Has a real right for himself & for his heirs to live in
the house
- To exercise the rights of an owner therein for the
specified term of years or as the case may be
- Right to make repair upon it to improve the building,
but he could not commit waste by causing any
deterioration of the land itself.
- He could mortgage or sell his interest but the owner
had no pre-emption right. However during his death, his
right could be pass to his heirs if not previously alienated.

Donations...
Accdg to Justinian :
Donatio or gift, is
another mode of
acquiring ownership.
Gaius in his Institutes
does not place donation
among the various
modes of acquiring
property but as a pact
or contract

In Roman & Modern Law

like in Philippine Civil
Code:
(Art. 725) Donation is an
act of liberality whereby
a person disposes
gratuitously of a thing or
right in favor of another,
who accepts it.

Donations...
In Roman Law:
Kinds of Donatio
1. Donatio Intervivos one made without any
consideration of death & is completed when donor has
manifested his intention whether by writing or not. They
were essentially irrevocable during the lifetime of the
donor.
2. Donatio Propter Nuptias is a gift made by the
husband to the wife in consideration of the marriage
3. Donation Mortis Causa is one created to meet
the contingency of death of the donor.

Donations...
Differences of
Donatio Mortis Causa
&
a. took effect immediately
upon the death of the
donor
b. the donee must have
capacity to receive at the
time of the death of the
donor

Legacies

a. to take effect, required

the heir to first enter the
inheritance
b. the donee must be
capacitated to receive
both at the time the
legacy was made and at
the time of the death of
the testator

Donations...
Differences of
Donatio Mortis Causa
&
c. a filius familias could
donate with his father's
consent donate other
things mortis causa
d. a peregrinus could make
a donatio

Legacies

c. a filius familias before

Justinian's time could
not give out as legacy
anything but his
peculium castrense
d. a peregrinus could not
give a legacy.

THANK YOU