1896de Book3 Chapter05 Title02 Part01

GERMAN CIVIL CODE OF 1896

• Based on the English Translation by: Wang, Chung Hui (1907). The German Civil Code, translated and annotated with historical introduction and appendices. London: Stevens and Sons. [available on Archive.org]
• Original Version in German.

Book III. Low of Things.

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Chapter V. Servitudes.

Title II. Usufruct.

Section 1030.

• [I] A thing may be charged with a right in such manner that the person in whose favour the right is created is entitled to draw the emoluments of the thing (i.e., a usufruct).
• [II] A usufruct may be limited by the exclusion of certain classes of emoluments.

Section 1031.

• By virtue of the usufruct of a piece of land the usufructuary acquires the usufruct of its accessories under the provisions of 926 applicable to acquisition of ownership.

Section 1032.

• For the grant of a usufruct of a moveable it is necessary that the owner deliver the thing to the acquirer and a real agreement be made between the parties that the usufruct shall belong to the latter. The provisions of 929, sentence 2, and 930 to 936 apply mutatis mutandis; in the cases provided for by 936 the only effect is that the usufruct takes priority to the right of the third party.

Section 1033.

• The usufruct of a moveable may be acquired by usucapion. The provisions applicable to acquisition of ownership by usucapion apply mutatis mutandis.

Section 1034.

• The usufructuary may have the condition of the thing determined by experts at his own expense. The owner has the same right.

Section 1035.

• In the case of a usufruct of an aggregate of things the usufructuary and the owner are mutually bound to concur in drawing up an inventory. The inventory shall bear the date when it was drawn up, and shall be subscribed by both parties; either party may require that the subscription be publicly certified. Hither party may also require that the inventory be drawn up by the competent public authority, or a competent official, or notary. The party who requires such drawing up or certification shall bear and advance the costs.

Section 1036.

• [I] The usufructuary is entitled to the possession of the thing.
• [II] In the exercise of the right of use he shall continue the former economic purpose of the thing and shall act according to the rules of proper management.

Section 1037.

• [I] The usufructuary is not entitled to transform the thing or to alter it essentially.
• [II] The usufructuary of a piece of land may erect new structures for the purpose of obtaining stone, gravel, sand, loam, clay, marl, peat, and other component parts of the soil in so far as the economic purpose of the land is not thereby essentially altered.

Section 1038.

• [I] If a forest is the object of a usufruct, both the owner and the usufructuary may require that the extent of the use and the manner of the economic operations shall be settled by a plan of management. If an important change of circumstances comes about, either party may require a corresponding change of the plan of management. Each party shall bear one-half the expenses.
• [II] The same rule applies if a mine or other structure designed for obtaining component parts of the soil is the object of the usufruct.

Section 1039.

• [I] The usufructuary also acquires ownership of any fruits which he takes contrary to the rules of proper husbandry, or which he takes in excess where this has become necessary in consequence of some special occurrence. He is, however, without prejudice to his responsibility for fault, bound to make good to the owner at the termination of the usufruct the value of the fruits, and to give security for the fulfilment of such obligation. Both the owner and the usufructuary may require that the amount to be made good be applied to the restoration of the thing in so far as it is consistent with proper husbandry.
• [II] If such application to the restoration of the thing is not required, the duty of making compensation is extinguished in so far as the emoluments accruing to the usufructuary are injured by the irregular or excessive taking of the fruit.

Section 1040.

• The right of the usufructuary does not extend to the share of the owner in treasure trove which is found in the thing.

Section 1041.

• The usufructuary shall take care of the preservation of the thing in its economic condition. The duty to make repairs and renewals is incumbent upon him only in so far as they are connected with the customary preservation of the thing.

Section 1042.

• If the thing is destroyed, or damaged, or an extraordinary repair or renewal of the thing or a precaution for the protection of the thing against an unforeseen danger becomes necessary, the usufructuary shall give notice to the owner without delay. The same rule applies if a third party claims any right over the thing.

Section 1043.

• If the usufructuary of a piece of land himself undertakes an extraordinary repair or renewal which has become necessary he may, for this purpose, within the limits of proper management, apply component parts of the land which do not belong to the fruits accruing to him.

Section 1044.

• If the usufructuary does not himself undertake a repair or renewal of the thing which has become necessary, he shall allow the owner to undertake it and, where land is the object of the usufruct, to apply the component parts of the land specified in 1043.

Section 1045.

• [I] The usufructuary shall, at his own expense, take out insurance against damage by fire and other accidents to the thing for the term of the usufruct, if such insurance is in accordance with the rules of proper management. The insurance shall be taken out in such manner that the claim against the insurer belongs to the owner.
• [II] If the thing has already been insured, the payments to be made on the insurance shall be made by the usufructuary during the term of the usufruct in so far as he would be bound to insure the thing.

Section 1046.

• [I] The usufructuary has a usufruct of the claim against the insurer under the provisions which apply to usufruct of an outstanding claim which bears interest.
• [II] If any damage occurs which is covered by the insurance, both the owner and the usufructuary may require that the insurance money be applied to the restoration of the thing or to the creation of a substitute in so far as this is consistent with proper management. The owner may himself take charge of such application or leave it to the usufructuary.

Section 1047.

• A usufructuary is bound, during the term of the usufruct, to bear on behalf of the owner all public charges upon the thing, with the exception of the extraordinary charges which are deemed to be imposed upon the corpus of the thing; and all private charges upon the thing existing at the time of the grant of the usufruct, e.g., interest upon hypothecary claims and land charges; and also any payments to be made by reason of an annuity charge.

Section 1048.

• [I] If a piece of land with its appurtenant stock is the object of a usufruct, the usufructuary may dispose of the individual units of the stock within the limits of proper management. He shall provide for making good any deterioration caused by ordinary use, and also the units of the stock which are consumed according to the rules of proper management; the articles provided by him become, upon incorporation in the stock, the property of the person to whom the stock belongs.
• [II] If the usufructuary takes the appurtenant stock at an appraised valuation with the obligation to return it at the termination of the usufruct at an appraised valuation, the provisions of 588, 589 apply mutatis mutandis.

Section 1049.

• [I] If the usufructuary incurs any outlay upon the thing, although he is not bound to do so, the duty of the owner to make compensation is determined according to the provisions relating to management of affairs without mandate.
• [II] The usufructuary is entitled to remove an attachment with which he has provided the thing.

Section 1050.

• The usufructuary is not responsible for any alteration or deterioration of the thing which is brought about by the proper exeroise of the usufruct.

Section 1051.

• If the conduct of the usufructuary causes apprehension of a serious violation of the rights of the owner, the owner may require security to be given.

Section 1052.

• [I] If the usufructuary is ordered by a non-appellable decree to give security, the owner may require, instead of security, that the exercise of the usufruct be assigned to a receiver to be appointed by the Court to act on behalf of the usufructuary. The decree appointing a receiver may be issued only if a period for the giving of security has been allotted by the Court to the usufructuary upon the application of the owner, and the period has elapsed; the decree may not be issued if the security is given before the expiration of the period.
• [II] The receiver is under the supervision of the Court like a receiver appointed by the Court for the compulsory management of land. The owner may also be appointed receiver.
• [III] The management by the receiver shall be terminated, if security be subsequently given.

Section 1053.

• If the usufructuary uses the thing in an unauthorised way, and if he continues so to use the thing in spite of a warning by the owner, the latter may apply for an injunction.

Section 1054.

• If the usufructuary violates the rights of the owner to a serious extent, and if he continues the injury in spite of a warning by the owner, the latter may demand a decree of management as provided for in 1082.

Section 1055.

• [I] The usufructuary is bound to return the thing to the owner after the termination of the usufruct.
• [II] In the case of a usufruct of agricultural land the provisions of 591, 592 apply mutatis mutandis; in the case of a usufruct of a farm the provisions of 591 to 593 apply mutatis mutandis.

Section 1056.

• [I] If the usufructuary has let a piece of land under an ordinary or usufructuary lease which extends beyond the term of the usufruct, after the termination of the usufruct the provisions of 571, 572, 573, sentence 1, and 574 to 576, 579 applicable to the case of alienation apply mutatis mutandis.
• [II] The owner is entitled to give notice of the termination of the lease, subject to the statutory term of notice. Ifthe usufructuary relinquishes the usufruct, the notice is permissible only after the time at which the usufruct would become extinct even if it had not been relinquished.
• [III] The lessee is entitled to summon the owner to make a declaration within a fixed reasonable period whether or not he will exercise his right of giving notice. The notice may be given only before the expiration of the period.

Section 1057.

• The claims of the owner for compensation on account of alterations or deterioration of the thing and the claims of the usufructuary for reimbursement of outlay incurred, or for permission to remove an attachment, are barred by prescription in six months. The provisions of 558, pars. 2 and 8, apply mutatis mutandis.

Section 1058.

• As between the usufructuary and the owner the grantor of the usufruct is deemed to be the owner in favour of the usufructuary, unless the usufructuary knows that the grantor is not owner.

Section 1059.

• Usufruct is not transferable. The exercise of the usufruct may be transferred to another.

Section 1060.

• If a usufruct conflicts with another usufruct or another right of use of the thing in such manner that the rights cannot, or cannot completely, be exercised concurrently, and if the rights have equal rank, the provision of 1024 applies.

Section 1061.

• A usufruct is extinguished upon the death of the usufructuary. If the usufruct belongs to a juristic person, it is extinguished upon the loss of juristic personality.

Section 1062.

• If the usufruct of a piece of land is terminated by a juristic act, in case of doubt the termination extends also to the usufruct of its accessories.

Section 1063.

• [I] The usufruct of a moveable is extinguished if the ownership and the usufruct merge in the same person.
• [II] The usufruct is deemed not to be extinguished in so far as the owner has a legal interest in the continuance of the usufruct.

Section 1064.

• A declaration made by the usufructuary to the owner or grantor that he gives up the usufruct is sufficient to terminate the usufruct of a moveable by juristic act.

Section 1065.

• If the right of the usufructuary is injured, the provisions applicable to claims arising from ownership apply mutatis mutandis to the claims of the usufructuary.

Section 1066.

• [I] If a usufruct exists in the share of one co-owner, the usufructuary exercises the rights which result from the community of the co-owners in respect of the management of the thing and the manner of its use.
• [II] The dissolution of the community may be demanded only by the co-owners and the usufructuary jointly.
• [III] If the community is dissolved, the usufruct of the objects which take the place of the share enure to the usufructuary.

Section 1067.

• [I] If fungible things are the object of a usufruct, the usufructuary becomes owner of the things; after the termination of the usufruct he shall make good to the grantor the value which the things had at the time of the grant. Both the grantor and the usufructuary may have the value determined by experts at his own expense.
• [II] The grantor may require security to be given if the claim for making good the value is endangered.