Cour de Cassation, 12.11.98 'Les Pouvoirs et les Obligations — de l'usufrutier Spanish Case Note

Abstract

The French High Court considers an investments' portfolio as a single good (universalité) in a case in which the widow (usufructuary) receives the legacy of the usufruct of all of her husband's goods. At the same time, and bearing in mind that securities are not consumable things by their first use, this decision authorizes the usufructuary to manage this portfolio transferring the securities, as far as they are replaced by others. The usufructuary has to act always within one limit: preserving the thing's substance, even when, like in our case, she has received the dispense of her duty of paying a guarantee to secure that she is going to act with due diligence (as allowed by article 601 Code civil). In Spanish law we find no judicial decisions in this sense, but it is possible to try to find a solution, applying whether the quasi-usufruct rules (article 482 Spanish civil Code), whether the article that rules the herd's usufruct (article 499), in which a group of animals is handled as a single good. The former benefits the bare owner and the latter, the usufructuary. In this attempt we may receive some help of the following institutions: The mortgage on a business house; the administration by the parents of their children's goods; and the possibility ruled in the catalonian law (no. 22, of 29th november 1991) about guarantees on movable things, that allows the pledge of a 'group of securities' (articles 11 and 12).