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p458 Emphyteusis

Article by George Long, M.A., Fellow of Trinity College
on pp458‑459 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

EMPHYTEUSIS (ἐμφύτευσις, literally an "in-planting"), is a perpetual right in a piece of land that is the property of another: the right consists in the legal power to cultivate it, and treat it as our own, on condition of cultivating it properly, and paying a fixed sum (canon, pensio, reditus) to the owner (dominus) at fixed times. The right is founded on contract between the owner (dominus emphyteuseos) and the lessee (emphyteuta), and the land is called ager vectigalis or emphyteuticarius. It was long doubted whether this was a contract of buying and selling, or of letting and hiring, till the emperor Zeno gave it a definite character, and the distinctive name of contractus emphyteuticarius.

The Ager Vectigalis is first distinctly mentioned about the time of Hadrian, and the term is applied to lands which were leased by the Roman state, by towns, by ecclesiastical corporations, and by the Vestal virgins. In the Digest mention only is made of lands of towns so let, with a distinction of them into agri vectigales and non vectigales, according as the lease was perpetual or not; but in either case the lessee had a real action (utilis in rem actio) for the protection of his rights, even against the owner.

The term Emphyteusis first occurs in the Digest. The Praedia Emphyteutica are also frequently mentioned in the Theodosian and Justinian Codes, but they are distinguished from the agri vectigales. Justinian, however, put the emphyteusis and the ager vectigalis on the same footing; and in the case of an emphyteusis (whether the lessor was a community or an individual), the law was declared to be the same as in the case of leases of town property. This emphyteusis was not ownership: it was a jus in re only, and the lessee is constantly distinguished from the owner (dominus). Yet the occupier of the ager vectigalis and the emphyteuta had a juristical possessio; a kind of inconsistency, which is explained by Savigny, by showing that the ager vectigalis was formed on the analogy of the ager publicus, and though there were many differences between them, there was nothing inconsistent in the notion of possession, as applied to the public land, being transferred to the ager vectigalis as a modified from of the ager publicus.

Though the emphyteuta had not the ownership of the land, he had an almost unlimited right to the enjoyment of it, unless there were special agreements limiting his right. The fruits belonged to him as soon as they were separated from the soil (Dig. 22 tit. 1 s25 § 1). He could sell his interest in the land, after giving notice to the owner, who had the power of choosing whether he would buy the land at the price which the purchaser was willing to give. But the lessee could not sell his interest to a person who was unable to maintain the property in good condition. The lessee was bound to pay all the public charges and burdens which might fall on the land, to improve the property, or at least not to deteriorate it, and to pay the rent regularly. In case of the lessee's interest being transferred to another, a fiftieth part of the price, or of the value of the property, when the nature of the transfer did not require a price to be fixed, was payable to the owner on the admission of the new emphyteuta, and which, as a general rule, was payable by him. Under these limitations the dominus was bound to admit the new emphyteuta (in possessionem suscipere). If the dominus refused to admit him, the seller, after certain formalities, could transfer all his right without the consent of the dominus. The heredes of the emphyteuta were not liable to such payment. The emphyteuta could dispose of his right by testament: in case of intestacy it devolved on his heredes.

The origin of the emphyteusis, as already stated, was by contract with the owner and by tradition; or the owner might make an emphyteusis by his last will. It might also in certain cases be founded on prescription.

The right of the emphyteuta might cease in several ways; by surrender to the dominus, or by dying without heirs, in which case the emphyteusis reverted to the owner. He might also lose his right by injuring the property, by non-payment of his rent or the public burdens to which the land was liable, by alienation without notice to the dominus, &c. In such cases the dominus could p459take legal measures for recovering the possession (Dig. 6 3, and 39 4; Cod. 4 tit. 66; Inst. 3 24 (25); Mühlenbruch, Doctrina Pandectarum; Savigny, Des Recht des Besitzes, p99, &c. p180; Mackeldey, Lehrbuch, &c. § 295, &c. § 384, 12th ed.)


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