The exceptions to the principle of salva rerum substantia through case law

Abstract

The principle of salva rerum substantia, which guides the conduct of the usufructuary and constitutes the core content of the right of usufruct, entails much more than merely preserving the property so as to return it in the condition in which it was received. Likewise, in certain cases, the usufructuary must disregard this principle when so instructed by the bare owner (nudo propietario) or when the specific characteristics of the usufructed asset so require. In this article, we examine how case law has shaped this principle, how it should be understood today, and what its exceptions ought to be. All of this serves to highlight that—although it was the fundamental principle of the right of usufruct in its Roman origins—it should perhaps no longer be regarded as the usufructuary’s primary obligation governing all others.