1Ulpianus, On the Edict, Book XCVII. Where the usufruct of anything is bequeathed, it seemed to the Prætor to be perfectly just that the legatee should give security with reference to two things; one, that will use the property as a good citizen should, and the other, that when the usufruct ceases to belong to him, he will restore what remains of it. 1This stipulation must be entered into, whether the property is movable, or consists of land. 2It must be borne in mind that this proceeding must also be employed in the case of trusts; for it is evident that if an usufruct is created by a donatio mortis causa, this security must be furnished in the case of legacies. Moreover, if the usufruct is created in any other manner, the same rule will apply. 3The party must give security that “the usufruct will be enjoyed as a good citizen would enjoy it”; that is to say, that the quality of the usufruct will not be deteriorated, and that he will do everything else which he would do, if the property belonged to him. 4The heir and the legatee will do well, as soon as the legatee begins to enjoy his right, to have it established by witnesses what the condition of the property is at the time, so that, by this means it may be apparent whether, and to what extent, the legatee has diminished the value of the property. 5It was considered more advisable that security should be given under these circumstances by means of a stipulation, so that if anyone should make use of the property in a way that a good citizen would not do, suit might be at once brought on the stipulation; and hence we do not have to wait until the usufruct terminates. 6This kind of a stipulation has reference to two cases; one where the party uses the property in a way which a good citizen would not do, and another where the usufruct must be restored; the first of these becomes operative as soon as an improper use of the property is made, and it may occur many times; the other takes effect when the usufruct expires. 7With reference to what we have stated, however, namely, that “he will restore what remains of it”; the owner does not stipulate for the thing itself, (as he would be considered to uselessly stipulate for his own property) he merely stipulates that whatever remains shall be restored. Sometimes, however, the provision for an appraisement of the property is inserted; for example, where an usufructuary who can prevent usucaption neglects to do so; as he undertakes to exercise every care over the property:

2Paulus, On the Edict, Book LXXV. For the usufructuary must be responsible for its safe keeping.

3Ulpianus, On the Edict, Book LXXIX. All cases in which the usufruct can be lost are included in this stipulation. 1We understand the usufruct to “cease to belong” to the usufructuary even if it has not commenced to belong to him at all, although it may have been bequeathed to him, and the stipulation will, nevertheless, become operative on the principle that property ceases to belong to a party in whom the ownership has not yet begun to vest. 2Where an usufruct is renewed by a legacy “every time that it is lost”, this stipulation will become operative, unless the bond is properly drawn up, but an exception will be required. 3Where, however, anyone leaves you an usufruct and the ownership of the property as well, on the condition that you have children, and the usufruct should be lost; and action can be brought on the stipulation, but an exception will be available. 4Where an heir alienates the property, and the usufruct afterwards is lost, let us consider whether he can bring suit on the stipulation. It may more forcibly be stated that, in accordance with the strict principles of law, the stipulation does not become operative because the property cannot be delivered to the heir or his successor; and the individual to whom it can be delivered—that is he in whom the ownership vests—was not a party to the stipulation. The latter, however, must provide for the protection of his own rights by means of another bond, at the time when he obtains the ownership; but if he should not do this, he will, nevertheless, be entitled to an action in rem.

4Venuleius, Stipulations, Book XII. If the usufructuary should obtain the property, the usufruct ceases to belong to him on account of the merger of the same; but if suit is brought against him on the stipulation, it must be held either that he has not proceeded in accordance with the strict principles of law, if the doctrine governing the conduct of a good citizen is considered applicable; or that the party must make use of an exception based on what has taken place.

5Ulpianus, On the Edict, Book LXXIX. The provision, “That no fraud has been committed”, or will be committed, is contained in this stipulation; and as this mention of fraud always relates to matters in rem, it is held to include the bad faith of any of the parties, whether he be one of the successors or an adoptive father. 1Where the use without the enjoyment is bequeathed, the Prætor orders security to be given, with the enjoyment of the produce omitted. This is reasonable, since security is given solely with reference to the use, and not to the usufruct. 2Therefore the stipulation will be operative if the enjoyment is obtained without the use. 3Where the right of residence, or of the services of a slave or those of any other animal, are left, the stipulation will become necessary, although these things are not copied from the usufruct.

6Paulus, On the Edict, Book LXXV. The same rule is applicable to the returns from land, as for instance, where a vintage or a harvest is bequeathed; just as property obtained by means of an usufruct, if bequeathed, reverts to the heir on the death of the legatee.

7Ulpianus, On the Edict, Book LXXIX. Where property was delivered on account of an usufruct, and security was not given, Proculus says that the heir can bring an action for recovery, and if an exception is interposed on the ground that the property was delivered because of an usufruct, he will be entitled to a replication. This opinion is reasonable; but a personal action can be brought to compel the execution of a bond by the usufructuary. 1When the usufruct of a sum of money is bequeathed, the following two instances must be set forth in the stipulation, “Shall be paid when you die, or lose your civil rights”; and therefore these two instances alone are given, because the use of money cannot be lost in any other way than under such circumstances.

8Paulus, On the Edict, Book LXXV. If the usufruct is bequeathed to you, and the mere ownership to me, security must be given to me; but where the mere ownership is bequeathed to me on a condition, some authorities, and among them Marcianus, are of the opinion that security must be given both to the heir and to myself; Which opinion is correct. Moreover, if the property is bequeathed to me, and when it ceases to belong to me, will belong to another; in this case also security must be given to both, as we established in the preceding instance. Where the usufruct is bequeathed to two parties jointly, they will be required to give security to another, as well as to the heir; the condition being referred to in the following terms: “To surrender the usufruct to the heir, if it does not belong to the co-legatee”.

9Ulpianus, On the Edict, Book LI. Where an usufruct is bequeathed to me, and I am asked to deliver it to Titius, it should be considered who is obliged to give security, whether Titius should do so, or I, the legatee? Or shall we say that the heir can bring an action against me, and that I must sue the beneficiary of the trust? It is better to hold that if I have any expectation arising out of the usufruct, so that it may revert to me, that is to the legatee, if you lose it; the question can be settled by your giving security to me, and by my giving security to the mere owner of the property. If, however, the usufruct was left to me in trust for the beneficiary, and there is no hope of its reverting to me, then the beneficiary should give security directly to the mere owner of the property. 1It must be borne in mind that whether a party has an usufruct by direct operation of law, or even through the assistance of the Prætor, he should, nevertheless, be compelled to give security or to defend any actions which may be brought. 2Pomponius says it is evident that if the ownership is bequeathed to anyone from a certain time, and the usufruct absolutely; it must be held that the usufructuary is released from liability on his bond, because it is certain that the property will come into his hands or into those of his heir. 3When the usufruct of clothing is bequeathed, Pomponius holds that although the heir may have stipulated that the clothing should be returned when the usufruct comes to an end; nevertheless, the promisor is not liable if he delivers the clothing which was worn out without malicious intent. 4Where several parties are the mere owners of property, any one of them can enter into a stipulation with reference to his own share of the same.

10Paulus, On the Edict, Book XL. If I bequeath to you the usufruct of a slave which both of us own in common, the security must be given to my heir; for although he can institute proceedings for partition of the property, still, the question of the usufruct, which belongs to you, is not included in the duty of the judge who is to preside.

11Papinianus, Opinions, Book VII. Where the use of a house is left, security must be furnished which would be satisfactory to a good citizen; nor does it alter the case if the father wishes his sons, who are his heirs, to reside in the house with his widow, who is the legatee.

12Ulpianus, On Sabinus, Book XVIII. Where the usufruct of certain vessels is left, the security provided by the Decree of the Senate will not be necessary; but only that which states that “the party will use and enjoy as a good citizen should do”. Therefore, where the vessels were delivered for the purpose of being enjoyed, no one doubts that the ownership of the same is not transferred to the party who received them, for they are not delivered for this purpose; but that the legatee might use and enjoy them. Hence, as the said vessels do not become the property of the usufructuary, they can be recovered by the owner of the same, if security is not given. It should be considered whether a personal action will lie under such circumstances? It has been decided that no one can bring an action of this kind to recover his own property, except from a thief.