Enforcing the liferenter's obligation to repair: Roman law, 'ius commune' and Scots law

Enforcing the liferenter's obligation to repair: Roman law, 'ius commune' and Scots law - A liferenter has the right to use the fiar's property. Furthermore, he has the right to possession. Only after the termination of the liferent, the fiar can take up the possession and the use of the property himself. In the meantime, the fiat will want the liferenter to maintain the property, e.g., to carry out repairs. In Roman law, the liferenter was first only under an enforceable obligation to repair if he had rendered the cautio usufructuaria. However, in the further development of Roman law an actio factum emerged in order to enforce the liferenter's duty to repair even if no cautio usufructuaria had been given. The exact point of time when this actio was developed is unclear. It is suggested that it emerged towards the end of the era of classical Roman law. During the time of the ins commune it was uncontested that the liferenter's duty to repair was enforceable even if no cautio usufructuaria had been given. As a consequence the liferenter did not have to find caution in every case but only if the liferenter's conduct gave rise to fear a material infringement of the fiat's rights. The cause to revisit the question of the enforceability of the liferenter's duty to repair in its historical development is a decision of the Scottish Court of Session in 2002.