Usufruct of disposition: a special examination at the first quarter of the 21st century

Abstract

This contribution studies the centuries-old figure of usufruct with the power of disposal, basically in accordance with the doctrine, jurisprudence and resolutions of these last two decades of the 21st century, focusing on its basic structure, that is, its dispositive powers, and when it can be disposed of, and how, depending on whether it is inter vivos and for consideration or free of charge, and, at the same time, without or with the need for the consent of third parties, whether or not they are the bare owners.

The usufructuary of disposition, whatever its form (with free disposition, only in case of need, with or without the need for the consent of the bare owner or of third parties, must return the same usufructuary or its tantundem), is always the owner of a mere limited real right of enjoyment (for which reason he will never be in a situation of joint ownership with the bare owner, in addition to the fact that the latter will be the owner, while the usufructuary, even if he has juxtaposed the power of disposition, will only be a legatee), therefore, since he can only be a legatee, he is not part of the hereditary community (for which reason there is no redemption either), nor can he intervene in the partition, nor can he liquidate the joint property, nor can he be required to pay the legitimate shares, nor can his usufructuary ownership be used to pay them, since the qualitative intangibility of the legitimate share would be violated – given that a lien is what it always is.