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As in old Roman law, emphyteusis, now spelt emfiteuse, means the possession of rights over another person's land, capable of transmission by inheritance; and to-day, as under the Romans, the holder of such rights is called the emphyteuta, or emfiteuta.
After twenty-seven years of reforms and prosperity Pombal was dismissed from office and the old abuses were reinstated, among them those worst incidents of emphyteusis which had been devised by the base ring of nobles and ecclesiastics who held the land in their grasp.
The questionings of the earlier lawyers, some of whom thought this kind of contract a hiring, and others a sale, occasioned the enactment of the statute of Zeno, which determined that this contract of emphyteusis, as it is called, was of a peculiar nature, and should not be included under either hire or sale, but should rest on the terms of the agreement in each particular case: so that if anything were agreed upon between the parties, this should bind them exactly as if it were inherent in the very nature of the contract; while if they did not agree expressly at whose risk the land should be, it should be at that of the owner in case of total destruction, and at that of the tenant, if the injury were merely partial.
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