emphyteusis

• a permanent tenure of land upon condition of cultivating it properly, and paying a stipulated rent, a sort of fee-farm or copyhold, Cod. Just. 4, 66, 1; Just. Inst. 3, 25, 3; cf. Rein's Privatr. p. 168 sq.; Dict. of Antiquities, s. v. emphyteusis.

EMPHYTEUSIS(ἐμφύτευσις, lit. an implanting) is a perpetual and real right in (agricultural) land which belongs to another person, entitling the emphyteuta to cultivate it practically as though it were its own, on condition of paying a fixed rent (pensio, canon) to the dominus or owner: the nearest analogy to it to be found in England is supplied by those lands which are let at what is called a fee-farm rent ( feodifirma, Magna Carta, 100.37).

The origin of emphyteusis is traceable to the agri vectigales, first distinctly mentioned about the time of Hadrian; large tracts of grazing land in Italy, belonging to the state, religious corporations (e. g. the Vestal Virgins), or the smaller civitates and municipia, but held and enjoyed by private persons subject to the payment of a perpetual rent (vectigal), or let out upon very long leases. The rights of such occupiers, at first purely contractual, acquired a real character, analogous to that of genuine ownership, from the praetor, who protected their possession (Dig. 2, 8, 15, 1) by interdicts and by a utilis actio in rem (actio vectigalis, Dig. 39, 2, 15, 26), availing even against the lessor when non-payment of rent was not alleged (Dig. 6, 3, 1, 2). An addition had thus been made to the jura in re aliena of Roman law: the right was alienable both inter vivos and by will, and descended to the tenant's heirs on his intestacy, though apparently it had not yet acquired a specific name, and the rules relating to it were as yet somewhat unsettled. Gaius says (3.145) that in his day it was a question whether the tenant's interest did not so closely resemble dominium as to make the transaction a sale rather than a contract of hiring and letting, but the better opinion was in the negative. After the third century the practice of letting agricultural lands of all kinds on these terms was very largely adopted, especially in the Eastern Empire, by private persons no less than by the emperor and corporations of all kinds: in the imperial enactments after Constantine the terminology is changed, lands so let being termed praedia emphyteuticaria, and the rent called pensio or canon more often than vectigal. The precise nature of these perpetual leases and of the emphyteuta's right was determined by the Emperor Zeno (Inst. 3.24, 3), who enacted that the transaction should be governed by the rules neither of sale nor of hire, but be a special contract by itself: and his settlement of the law passed with little or no alteration into the Corpus Juris of Justinian.

The emphyteuta is opposed to the dominus, or owner, of the land over which his right extends; that is to say, his interest is merely a jus in re aliena: he has, however, possession, though whether a representative possession of the land itself (as Savigny holds) or merely a juris quasi-possessio, the notion of possession being analogically extended from a thing to a mere right (as Arndts and other civilians maintain), is uncertain; but whatever the quality of the possession, it is protected by the ordinary possessory interdicts. He may, moreover, do almost anything with the land that a judicious owner would do, unless there are special restrictive covenants. He may cultivate it in what way he pleases, turning pasture into meadow or plough lands at his discretion (herein being clearly distinguishable from the usufructuary), provided he does not permanently depreciate it: otherwise he is liable to eviction by legal process. Its fruits are his so soon as they are separated from the soil (Dig. 22, 1, 25, 1); his rights are heritable, and alienable both inter vivos and by will. If he proposed to transfer his interest, he had (under penalty of eviction) to give notice to the dominus, who had during two months a right of pre-emption at the price agreed on: and even if he did not avail himself of this right, the person of the proposed alienee had to be approved by him in writing, though he could refuse such approval only on reasonable grounds; and he was entitled to a commission of 2 per cent. on the purchase-money in consideration of his acceptance of a new tenant: the latter succeeded to all his predecessor's liabilities in respect of the land. The emphyteuta also had the right of letting the land on lease to a third person, and he could pledge or mortgage it and create servitudes which bound it so long as his own interest endured: finally, in the form of utiles actiones he enjoyed all the remedies of a fall dominus. His duties were to keep the land in good tenantable condition, though being under no obligation to increase its value he had apparently no claim to compensation for un-exhausted improvements; to pay all taxes assessed upon it (Nov. 7, 3, 2; 120, 8) and his rent with regularity. So long as this was in arrear he could not enforce his rights over the land against either the dominus or his representatives (e. g. his mortgagee, Dig. 13, 7, 16, 2); and if it was in arrear three years (or two if the dominus was a spiritual person), the owner could evict him by legal process.

Emphyteusis might arise from contract, legacy, judicial decree, and possibly prescription. If the land belonged to the church or a spiritual person, the contract must be in writing, which was also necessary in all cases where the parties desired in any way to vary the ordinary legal rules as to this species of interest in land (Cod. 4, 66, 1; Nov. 120, 6, 2): but it does not seem that the contract ever required traditio or livery for the perfect constitution of the right. The right of the emphyteuta might be extinguished in the same ways as any other jus in re aliena (e.g. destruction of the land, confusio, &c.); besides these, renunciation or surrender, forfeiture, and prescription seem to have been common. Renunciation had no effect unless accepted by the dominus: the chief cases of forfeiture have been noticed above under the head of eviction. (Dig. 6, 3; 39, 4; Cod. 4, 66; A. Vuy, de originibus et natura juris emphyteutici Romanorum, 1838; Gesterding, Eigenthum, p. 378 ff.; Von Buchholtz, Jurist. Abhandl, No. 25, Über die Unterschiede zwischen der Emphyteusis und Superficies; Arndts, Zur Lehre von der Emphyteuse; Giess, Zeitschr. iii. pp. 245 ff., 367 ff.; Holtzendorff, Rechtslexicon, s. v. Emphyteusis.)

(ἐμφύτευσις, lit. “an implanting”). A perpetual and “real” right in agricultural land which belongs to another person, entitling the emphyteuta to cultivate it practically as though it were his own, on condition of paying a fixed rent (pensio, canon) to the dominus, or owner, somewhat after the nature of the English “feefarm” rent (“feodifirma,” Magna Carta, c. 37).

The origin of emphyteusis is traceable to the agri vectigales, first distinctly mentioned about the time of Hadrian—large tracts of grazing land in Italy, belonging to the State, religious corporations (e. g. the Vestal Virgins), or the smaller civitates and municipia, but held and enjoyed by private persons subject to the payment of a perpetual rent (vectigal), or let out upon very long leases. The rights of such occupiers, at first purely contractual, acquired a “real” character, analogous to that of genuine ownership, from the praetor, who protected their possession (Dig. 2, 8, 15, 1) by interdicts and by a utilis actio in rem (actio vectigalis), availing even against the lessor when nonpayment of rent was not alleged (Dig. vi. 3, 1, 2). An addition had thus been made to the iura in re aliena of Roman law: the right was alienable both inter vivos and by will, and descended to the tenant's heirs on his intestacy, though at that time it had not acquired a specific name.