1Gaius, On the Provincial Edict, Book VII. Let us now consider use and habitation. 1A mere use may be created, that is to say, without complete enjoyment; and this is ordinarily created in the same ways as an usufruct.

2Ulpianus, On Sabinus, Book XVII. Where the use is left, a party can use but not enjoy. Now let us examine certain cases. 1The use of a house is left to the husband, or to the wife; where it is left to the husband, he can not only live in it himself, but can also reside there with his slaves. The question arose whether he could live there with his freedmen. Celsus holds that he can not only do so, but, that he can also entertain a guest; for he states this in the Eighteenth Book of the Digest, which opinion Tubero approves. Moreover, I remember that the question whether he can take a tenant is discussed by Labeo in the Book of his Last Works, who says that he who resides there can take a tenant, as well as entertain guests, along with his freedmen,

3Paulus, On Vitellius, Book III. And his clients.

4Ulpianus, On Sabinus, Book XVII. But persons of this kind must not live in the house without him. Proculus, however, in a note on tenants, says that one cannot properly be designated a tenant, who lives with him. In accordance with this, if the party having the use of the property collects rent as long as he himself lives in the house, this should not be mentioned to his prejudice; for suppose that the use of a large house was left to a man in moderate circumstances, so that he is content with a small portion of the same? Again, he may live with persons whom he employs in labor instead of slaves, even though they are free, or the slaves of others. 1Where the use is left to a woman, Quintus Mucius first admitted that she could live with her husband, since otherwise, if she wished to use the house, she would have to remain unmarried; for, on the other hand, there never was any doubt that a wife could live with her husband. Where the use is bequeathed to a widow, could this woman, if she contracted a second marriage after the use was established, reside there with her husband? And it is true, (as Pomponius in the Fifth Book, and Papinianus in the Nineteenth Book of Questions holds) that her husband can live with her if she is married subsequently. Pomponius goes still farther, and says that her father-in-law can also live with her.

5Paulus, On Sabinus, Book III. Moreover, a father-in-law can live with his daughter-in-law; at all events, if her husband lives there also.

6Ulpianus, On Sabinus, Book XVII. A woman can not only have her husband live with her, but also her children and her freedmen, as well as her parents. Aristo states this in a note on Sabinus. Indeed, we may go as far as to say that women can entertain the same persons that men can.

7Pomponius, On Sabinus, Book V. A woman, however, cannot receive anyone as a guest, unless he can live respectably with her who has the use of the house.

8Ulpianus, on Sabinus, Book XVII. Parties who have a right to use cannot lease the premises and give up their residence there, nor can they sell the use of the same. 1Where, however, the use of a house was bequeathed to a woman on condition that she would separate from her husband, she can be released from this condition, and can live with her husband. This opinion Pomponius also adopts in the Fifth Book.

9Paulus, On Sabinus, Book III. Where the use of everything else is bequeathed, it must be held that the wife is entitled to the use of the property in common with her husband.

10Ulpianus, On Sabinus, Book XVII. Ad Dig. 7,8,10 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 208, Note 4.Where the right to a residence is left, the question arises is it the same as use? Papinianus in the Eighteenth Book of Questions admits that the bequest of use and habitation have practically the same effect; for the legatee of a right to a residence cannot give it away; he can entertain the same persons as the party who has the use; it does not pass to the heir; nor is it lost by want of use, nor by the forfeiture of civil rights. 1But where χρῆσις is left, it must be considered whether this constitutes use, and Papinianus in the Seventh Book of Opinions, states that the use is left, but not the income. 2Where, however, this is left in the following terms, “To So-and-So, the usufruct of the house for the purpose of residence therein”; it must be considered whether he is entitled only to the residence or to the usufruct as well? Priscus and Neratius think that the right of residence alone is left; which is correct. It is evident that if the testator had said, “The use for the purpose of residence”, we would not doubt that it was valid. 3The question was raised by the ancient authorities whether the right of residence for a year would endure for life? Rutilius says that the right of residence belongs to the party as long as he lives, and Celsus in the Eighteenth Book of the Digest approves this opinion. 4Where the use of a tract of land is left, this is very much less than the crops, as no one doubts. Let us see, however, what is involved in this bequest. Labeo says the legatee can live on the land and can prevent the owner from entering thereon; but he cannot prevent a tenant or the slaves of the owner from doing so; that is to say, those who are there for the purpose of cultivating the soil, but if the owner should send his household slaves there, they can be prevented from entering, on the same principle that the owner himself can be prevented from doing so. Labeo also states that the usuary can alone make use of the store-rooms for wine and oil, and that the owner cannot use them if the former is unwilling.

11Gaius, Diurnal, or Golden Matters, Book II. The party entitled to the use can remain on the land only as long as he does not molest the owner of the same, or interfere with those who are engaged in agricultural pursuits; and he cannot sell, lease, or transfer gratis to anyone the right which he has.

12Ulpianus, On Sabinus, Book XVII. He has a right to have the full use, if that of the farm-house and the country-seat are left him. It is evident that it must certainly be held that the proprietor is entitled to come for the purpose of gathering the crops, and, during the time of the harvest, it must be admitted that he can live there. 1In addition to the right of residence to which the person who was granted the use is entitled, he has also the right of walking and driving around. Sabinus and Cassius state that he is likewise entitled to firewood for daily use, and also to the garden, and to apples, vegetables, flowers, and water, not however, for profit but merely for use and not to be wasted. Nerva holds the same opinion, and adds that he can use straw, but not leaves, oil, grain, or fruit. Sabinus, Cassius, Labeo, and Proculus go still further, and say that he can take enough out of what is raised on the land for his own maintenance and that of his family, in instances where Nerva denies him that right. Juventius holds that he can use these things for the benefit of his guests and the persons whom he entertains, and this opinion seems to me to be correct; for more indulgence may be accorded the usuary, on account of the respect due to a person to whom a use has been left. I think, however, that he can make use of these things only while in the house. With reference to apples, vegetables, flowers, and firewood, it must be considered whether he can only make use of them in that place, or whether they can be delivered to him in the town; but it is better to adopt the rule that they can be brought to him in the town, for this is not a matter of great importance, if there is an abundant supply of them on the land. 2Where the use of a flock is left, for instance, a flock of sheep; Labeo says that they can only be used for their manure; as he can not use the wool, the lambs, or the milk, for these are to be classed with the profits. I think that he can go still farther, and use a moderate quantity of milk, as the wills of deceased persons should not be interpreted so strictly. 3Where the use of a herd of cattle is left, the legatee will be entitled to the entire use of the same for plowing or for any other purpose for which cattle are adapted. 4Also, where the use of a stud of horses is bequeathed, let us consider whether the legatee cannot break them to harness and use them for draft. If the party to whom the use of said horses is left is a charioteer, I do not think that he can use them for races in the circus, because this might be considered to be hiring them; but if the testator, when he left them, was aware that this was his occupation and mode of life, he may be held to have intended them to be employed for this purpose. 5Where the use of a slave is left to anyone, he can use him for attendance upon himself, and upon his children and his wife, and he will not be deemed to have granted his right to another if he together with them make use of said slave; although if the employment of a slave is left to the son of a family or to another slave, as this will be acquired by the father or owner, he can only exact the use of him alone, and not that of those who are under his control. 6A legatee cannot lease the services of a slave subject to use, nor can he transfer them to another; and this is the opinion of Labeo. For how can a man transfer to another services which he himself should make use of? Labeo, however, holds that where a party has rented a farm, a slave of whom he has the use can work there; for what difference does it make in what way he uses his labor? Wherefore, if the party entitled to the use enters into a contract for the spinning of wool, he can have this done by female slaves of whom he has the use; and also, if he makes a contract for the weaving of clothing, or for the building of a house or a ship, he can employ the labor of the slave of whom he has the use. This opinion does not conflict with that of Sabinus that, where the use of a female slave is granted, she cannot be sent to a wool-factory, nor compensation be received for her labor; but the legatee must, in accordance with law, have her work the wool for himself; for she is held to do this for him where he does not hire her labor, but performs the work which he agreed to do. Octavenus also approves this opinion.

13Gaius, On the Provincial Edict, Book VII. It was held by Labeo that a male or a female slave can be compelled to pay money instead of working.

14Ulpianus, On Sabinus, Book XVII. If I stipulate, or receive anything by delivery through a slave of whom I have the use, the question arises whether I make any acquisition either through my property or by his labor? It will not be valid if it is based on his labor, since I have no right to lease his services, but if what is acquired is derived through my property, we hold that if a slave of whom I have the use either stipulates or receives anything by delivery he acquires for me, since I am making use of his labor. 1Ad Dig. 7,8,14,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 202, Note 1.It makes no difference whether the usufruct or the crop is bequeathed, for the use is included in the crop, but the crop does not include the use; and while a crop cannot exist without the use, still the use may exist without the crop. Hence, if the crop is bequeathed to you after the use has been reserved, the bequest is void, as Pomponius states in the Fifth Book On Sabinus; and he also says that where an usufruct is bequeathed but the crops are withheld, the entire legacy must be considered to be revoked. Where, however, the crop is bequeathed without the use it is held to have been created, since it might have been created in the beginning. But in case the usufruct is bequeathed and the use is withheld, Aristo stated that there is no revocation. This opinion is the more liberal one. 2Ad Dig. 7,8,14,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 202, Note 1.Where the use is bequeathed and afterwards the crop to the same person; Pomponius says that it is joined to the use. He also says that if the use is bequeathed to you and the crop to me, we hold the use in common, but that I alone will be entitled to the crop. 3The use, however, may belong to one person, the crop without the use to another, and the mere property to still another; for example, where a party who had a certain tract of land bequeathed the use of the same to Titius, and afterwards his heir bequeathed the crop to you, or transferred them to you in some other way.

15Paulus, On Sabinus, Book III. Where the use of land is bequeathed, the party entitled to the use can take sufficient supplies from the same to last only for a year; even though, by doing so, the crops of a moderate estate may be exhausted; for the same reason that he has a right to enjoy the use of a house and a slave in such a way that nothing which can be classed as produce may be left for another. 1Just as he to whom the use of land is bequeathed, cannot prevent the owner from coming there frequently for the purpose of cultivating the soil, as, by acting otherwise it would be precluding the owner from its enjoyment; so, also, the heir cannot act in any way so as to prevent the party to whom the use was bequeathed from making use of the land, as the careful head of the household should do.

16Pomponius, On Sabinus, Book V. Where the use of a tract of land is bequeathed in such a way that the latter must be provided with those things which are necessary for its cultivation, the use of them will belong to the legatee, just as if they had been expressly bequeathed to him. 1The owner of the property can have a watch kept over the land or the house by a forester or a steward, even if the usufructuary or the party entitled to use should be unwilling; for it is to his interest to protect the boundaries of his estate. All these things are applicable, no matter in what way the usufruct or the use has been created. 2If we are only entitled to the use of a slave, and not to the fruit of his industry, as well, something can be given to him by us, or he can even transact business with our money, so that whatever he acquires thereby shall belong to his peculium through us.

17Africanus, Questions, Book V. Where the use of a house is bequeathed to the son of a family, or to a slave, I think that this legacy is valid and the same method can be employed to recover it which could have been employed if the profits of the same had also been bequeathed. Therefore, the father or the owner can live in the house just as well when the son or the slave is absent as when he is present.

18Paulus, On Plautius, Book IX. If the use of a house is bequeathed without the rent, it is the duty of the heir as well as of the party entitled to the use of the same to keep it in repair, so that it will be closed and protected against the weather. Let us see, however, whether, if the heir receives the rent he himself is not obliged to make the repairs; but where the property the use of which is left is of such a description that the heir cannot collect the income thereof, the legatee will be compelled to repair it; which distinction is reasonable.

19The Same, On Vitellius, Book III. A portion of an use cannot be bequeathed; for we can enjoy a portion, but we cannot use one.

20Marcellus, Digest, Book XIII. A slave whose use is bequeathed to me acquires for me if he is my agent, and I employ his services in a shop; for he acquires for me by the sale and purchase of merchandise; and he likewise does so if he receives property through delivery by my order.

21Modestinus, Rules, Book II. The use of water is a personal right, and therefore cannot be transmitted to the heir of the party entitled to the same.

22Pomponius, On Quintus Mucius, Book V. The Divine Hadrian, where the use of a forest had been bequeathed to certain persons, decided that the produce of the same must also be held to have been bequeathed to them; because, unless they were permitted to cut down and sell the trees, just as usufructuaries are, they would obtain nothing from the legacy. 1Even though a legatee to whom the use of a house is bequeathed may be in such reduced circumstances that he cannot have the use of the entire building; still, the owner cannot use the part which is vacant, because the party entitled to the use will be permitted to use the entire house at one time or another; as occasionally the owner uses certain portions of a building and does not use others, according as the circumstances may demand. 2Where an use is bequeathed, if the legatee exercises his right to a greater extent than he should do, is it the duty of the judge to determine how far the use may be employed? He must see that he uses it not otherwise than he should do.

23Paulus, On Neratius, Book I. Neratius says that the owner of the property which is subject to an use cannot change its nature in any way. Paulus holds that he cannot make the condition of the party entitled to the use any worse; but he may make it worse, even where he improves the property.